Last Updated on April 24, 2019 by LawEuro
THIRD SECTION
DECISION
Application no.36558/14
Shahnaz HEERAWI
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 12 March 2019 as a Committee composed of:
Dmitry Dedov, President,
Alena Poláčková,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 May 2014,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Shahnaz Heerawi, is an Afghan national, who was born in 1974 and lives in Den Haag. She is represented before the Court by Mr W. Fischer, a lawyer practising in Haarlem.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On an unspecified date the applicant, her husband B and their children fled from Afghanistan to the Netherlands where they applied for and were granted asylum.
4. Also on an unspecified date, suspecting B of involvement in crimes referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, the Netherlands immigration authorities revoked B’s asylum-based residence permit in application of Article 1F. In addition, an exclusion order (ongewenstverklaring) was imposed on him. On an unspecified date these decisions obtained the force of res iudicata.
5. On an unspecified date the applicant applied for means-tested housing benefit (huurtoeslag), a means-tested contribution towards the costs of (compulsory) health insurance (zorgtoeslag) and means-tested child care benefit (kindgebonden budget) for the fiscal year 2012. On 21 January 2012 the applicant was informed by the Tax Department that on the basis of new information received the applicant’s entitlement to means-tested housing benefit, a means-tested contribution towards the costs of health insurance and means-tested child care benefit for 2012 had been recalculated and had been determined at nil. She was not entitled to these benefits and a contribution as her husband did not have a valid residence permit.
6. On 17 February 2012 both the applicant and her husband B filed an objection (bezwaar) against the decision of 21 January 2012. This objection, including the arguments raised by the applicant and B under Articles 8 and 14 of the Convention, was rejected on 30 May 2012 by the competent Director of the Tax Department. As to the applicant’s reliance on Articles 8 and 14 of the Convention, the decision reads as follows:
“In the course of the hearing [on the objection] and referring to Articles 8 and 14 of the Convention, your lawyer has requested to take your family situation into account. These articles concern the right to respect to private and family life (Art. 8) and the prohibition of discrimination (Art. 14).
About this I would like to remark the following. Section 9 § 2 of the General Act on Means-tested (Benefits) Regulations (Algemene Wet Inkomensafhankelijke Regelingen; “AWIR”) provides that, in case the partner of the person concerned is a foreigner who does not have legal residence, the person concerned is not entitled to benefits.
It appears from constant case-law of the Council of State that the Tax Department, in granting benefits, may distinguish between persons having a valid residence permit and persons who do not. There is no question of discrimination in those cases. Only in very special case can a violation of the prohibition of discrimination arise.
No very special circumstance has appeared to me. In your letter of 20 February 2012 you submit that you would only have retained entitlement to benefits by evicting your partner from the house. I do not agree with your remark that by this the Tax Department is in fact compelling your partner to leave the house. You have chosen for the existence/continuation of the present situation and the ensuing legal consequences. In addition it concerns here a situation which the legislator has included deliberately in the law and the consequences of which have as such been intended.”
7. The applicant and B filed an appeal – also on behalf of their three children E., A. and M. – with the Regional Court (rechtbank) of The Hague.
8. On 15 February 2013, following a hearing held on 16 October 2012, the single-judge chamber (enkelvoudige kamer) of the Regional Court of The Hague rejected the appeal. The relevant part of this judgment reads:
“12. As to the [applicant’s] reliance on the principle of non-discrimination, the Regional Court considers as follows. Discrimination arises when identical cases are not treated equally and when there is no justification for that unequal treatment. The [applicant] has not substantiated her appeal ground in the sense that she has not pointed out cases comparable to her own case in which the Tax Department has nevertheless acted otherwise by granting benefits. Nor has she argued that under certain circumstances the Tax Department pursues a favourable policy which should also apply to her situation. The Regional Court further considers that, in so far as it would concern identical cases, the legislator can make a distinction based on the residence status of – in this case – the husband if there exists a reasonable and objective justification for so doing in the light of the aim of the regulation. In the opinion of the Regional Court, this justification has been given in the enactment of the Benefit Entitlement (Residence Status) Act (Koppelingswet), namely the elimination of the possibility to claim – despite the lack of a residence title – entitlement to benefits and allowances (uitkeringen en verstrekkingen) which can stimulate the continuation of in principle unlawful stay and which eventually can lead to a form of pseudo-legality as regards the residence position. With the linkage principle as set out in section 9 § 2 of the AWIR the person without a residence permit is prevented from drawing advantage via partner and family from benefits and allowances to which the partner and the family are entitled. The Regional Court points out that the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) has given several rulings in this sense (rulings of 23 January 2008, LJN (Landelijk Jurisprudentie Nummer [National Jurisprudence Number]): BC2514 for the application of the Rent Allowance Act (Huursubsidiewet); 22 July 2009, LJN: BJ3435; 17 March 2010, LJN: BL7842; 22 December 2010, LJN: BO8342; 19 January 2011, LJN: BP1353 for the application of the means-tested contribution towards the costs of health insurance and the means-tested housing benefit).
13. As to the [applicant’s] reliance on the – undisturbed – right to respect for private and family life, the Regional Court considers as follows. The European Court of Human Rights has held previously that Article 8 is also of relevance in cases that relate to the spending of public means. In this the State does have a wide margin of appreciation, whilst the Court, in the framework of the rights to be respected, attaches value to the residence status (N.v. the United Kingdom [GC], no. 26565/05, ECHR 2008). It has not been argued and it has not appeared that the denial of the benefits to [the applicant], as such, entails that the [applicant], her husband and her children are being hindered in the exercise of their private and family life, with which it is not being said that the [applicant] and her children would not be in a difficult situation.. However, it is not demonstrated that there are special circumstances offering a ground for finding that the Tax Department in taking the impugned initial decision has violated … Article 8 of the Convention. In the opinion of the Regional Court, this entails that there is no question of such an encroachment on the applicant’s right to private and family life that the State should be regarded as being under a positive obligation vis-à-vis the [applicant]. Even when considering Article 8 also in the light of the Convention on the Rights of the Child (IVRK) and other convention norms cited by the [applicant] Covenant it cannot, in the opinion of the Regional Court, be maintained in reason that the withholding of the benefits to the [applicant] does not demonstrate a “fair balance” between the public interest involved in the refusal of the benefits on the grounds on which the Benefit Entitlement (Residence Status) Act rests and the – personal – interests of the [applicant]. In this connection the Regional Court also refers to previous rulings of the Central Appeals Tribunal (Centrale Raad van Beroep) (rulings of 26 June 2001, LJN AB2324 and 24 January 2006, LJN AV0197) and to the case-law of the Administrative Jurisdiction Division of the Council of State (rulings of 22 July 2009, LJN: BJ3435; 24 February 2010, LJN: BL5340; 17 March 2010, LJN BL7842, 22 December 2010, LJN: BO8342; 19 January 2011, LJN: BP1353; and 16 January 2013, LJN: BY8526 concerning the means-tested child care benefit).”
The Regional Court also rejected as unfounded the applicant’s complaint that the Tax Department had failed to respond to her grievances under Articles 8 and 14 of the Convention.
9. On 2 April 2013 the applicant and B – also on behalf of their three children – filed a further appeal with the Administrative Jurisdiction Division.
10. On 13 November 2013 the Administrative Jurisdiction Division accepted the further appeal of 18 April 2013, quashed the judgment of 15 February 2013 in so far as the Regional Court had failed to declare inadmissible the appeal filed by the applicant’s children because the latter had not filed an objection against the decision of 21 January 2012, declared the appeal filed by the children to the Regional Court inadmissible, and confirmed the impugned judgment for the remainder. In its relevant part, this ruling reads:
“5. [The applicant and her husband] argue that the Regional Court has failed to discern that, by setting the …. [entitlement to the three means-tested benefits at issue] at nihil, the Tax Department has acted in violation of Article 8 § 1 also read in conjunction with Article 14 of the Convention. In that framework they argue that their family is treated differently than a family of which the father has no residence-related problems. They further argue that in this case the linkage principle[1] is not legitimate and justified, and that the aim of that principle, namely to induce [B] to leave [the Netherlands], cannot be achieved as [B] will risk in Afghanistan to be subjected to treatment in violation of Article 3 of the Convention, as a result of which he cannot return to that country. They lastly argue that the Regional Court has failed to appreciate that their children will have to grow up in poverty if the family is no longer entitled to [the benefits concerned] whereas they cannot be blamed for the residence status of their parents.
5.1. It is established that there is family life within the meaning of Article 8 of the Convention between [the applicant], [B] and their children. It can be assumed that a departure of [B] would be disruptive for the family of which he forms a part.
5.2. The application of section 9 § 2 of the General Act on Means-tested (Benefits) Regulations (Algemene Wet Inkomensafhankelijke Regelingen; “AWIR”) is based on the linkage principle. To this end, the Administrative Jurisdiction Division refers to the rulings of 22 December 2010 in case no. 200909234/1/H2 and 13 February 2013 in case no. 201202839/1/A2 (www.raadvanstate.nl). As is apparent from the history of the enactment of the Benefit Entitlement (Residence Status) Act (Koppelingswet) (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1994/95, 24 233, nr. 3, pp. 1-2), the linkage principle laid down in this Act seeks to link the right to allowances, services and benefits (verstrekkingen, voorzieningen en uitkeringen) financed by public funds to legal residence in the Netherlands. The aim of the linkage principle is to prevent that illegal aliens, by receiving benefits and allowances, are enabled to continue their unlawful residence or acquire a sham appearance of legality. In addition the linkage principle aims at preventing that the alien who is taking proceedings for obtaining a residence permit gradually appears to be able to build up such a strong legal position – or the appearance thereof – that by the time the procedure has ended he appears to be virtually irremovable.
5.3. With reference to the above-cited ruling of 22 December 2010, it is being considered that – in view of the goal pursued by the linkage principle – the principle in itself forms a reasonable and objective justification for the difference made between, on the one hand, a Dutch national or an alien with a residence title in accordance with section 8 a. – e. and l. of the 2000 Aliens Act (Vreemdelingenwet 2000) and, on the other, an alien like [B] who does not have such a residence permit.
5.4. As already previously held by the Administrative Jurisdiction Division in, inter alia the above cited rulings of 22 December 2010 and 13 February 2013, statutory provisions are not applied when such application is incompatible with treaty provisions that are binding on all persons and with decisions of international organisations. The denial of [the means-tested benefits at issue] may under very exceptional circumstances in a concrete case be regarded as contrary to the principle of non-discrimination under Article 14 in conjunction with the right to respect for family and private life laid down in Article 8, in which case the statutory provision concerned should not be applied. Noting the significant impact the denial of [the three benefits at issue] can have, the Tax Department must assess autonomously a reasoned claim of very exceptional circumstances.
5.5. The Administrative Jurisdiction Division agrees with the Regional Court that the Tax Department has correctly adopted the view that the refusal to grant [the benefits concerned] is not contrary to Article 8, read together with Article 14 of the Convention. The circumstances relied upon by the applicant and [B] are not to be regarded as very exceptional in the above-mentioned sense. The argument that the children must live in poverty because their father is residing in the Netherlands cannot lead to another finding, already because these [benefits] are not intended to ensure a minimum level of subsistence. The circumstances relied upon do not, therefore, warrant the disapplication of section 9§ 2 of the AWIR.
The argument fails.”
No further appeal lay against this ruling.
B. Relevant domestic law and practice
11. An overview of the relevant domestic law and practice relating to admission proceedings and the concept of “lawful stay” is set out in the decision given by the Court in the case of Afif v. the Netherlands (no. 60915/09, §§ 26-32, 24 May 2011).
12. Article 93 of the Netherlands Constitution provides that the Convention forms part of domestic law. Pursuant to Article 94 of the Constitution, the provisions of the Convention take precedence over domestic statutory rules in case of conflict.
13. Means-tested housing benefit (huurtoeslag) is a form of tax credit intended to help persons/families with a modest income meet housing costs for rented accommodation. A means-tested contribution towards the costs of (compulsory) health insurance (zorgtoeslag), also taking the form of a tax credit, is intended to meet costs for compulsory health insurance for adult persons with a modest income. Minor children are insured free of premium under their parents’ (compulsory) health insurance policy. Means-tested child care benefit (kindgebonden budget)[2], which also takes the form of a tax credit, is meant as a contribution to child care costs.
14. According to the provisions of the Benefit Entitlement (Residence Status) Act, in force as from 1 July 1998, and section 10 of the 2000 Aliens Act (Vreemdelingenwet 2000), the entitlement of aliens to any benefits in kind, facilities and social security benefits issued by decision of a public administrative authority is linked to the question whether they have legal residence in the Netherlands. This is referred to as the linkage principle (koppelingsbeginsel). An alien who does not have legal residence in the Netherlands is not entitled to any benefits granted by decision of a public administrative authority. Derogation is possible if the benefits relate to education for minors, the provision of essential medical care (i.e. prevention of life-threatening situations or loss of essential functions), the prevention of situations that would jeopardise public health or pose a risk to third parties (for instance prevention of infectious diseases, or care related to pregnancy and childbirth), or the provision of legal assistance to the alien concerned. Its aim was, on the one hand, to discourage irregular residence and, on the other, to prevent irregular residents from benefitting from social security facilities allowing them to become rooted in Dutch society and thereby making it increasingly difficult to expel them.
15. Section 9 §§ 2 and 3 of the AWIR provides as follows:
“2. In case the partner of the person concerned is a foreigner who does not have legal residence within the meaning of section 8 of the 2000 Aliens Act, the person concerned is not entitled to benefits.
3. If, in a means-tested (benefits) regulation, it is stipulated that in addition to the financial capacity of the person concerned and his/her partner also the financial capacity of co-residents is of relevance for the assessment of an entitlement to or the level of benefits, the person concerned is not entitled to benefits in case a co-resident is an alien not having legal residence within the meaning of section 8 of the 2000 Aliens Act. If the co-resident is an unaccompanied minor alien within the meaning of section 1, part (e), of the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen), the first sentence shall not apply until the moment on which the right to reception facilities under this scheme ends.”
16. In a ruling given on 22 October 2014 (ECLI:NL:RVS:2014:3788) the Administrative Jurisdiction Division addressed the issue of proportionality in connection with the (non-)application of the linkage principle. It held as follows:
“4.1. …Article 14 of the Convention and Article 1 § 1 of Protocol No. 12 to the Convention do not prohibit any difference in treatment of similar cases, but only treatment which must be regarded as an making an unjustified distinction. As is clear from the Court’s settled case-law, an unjustified distinction must be assumed if there is no reasonable and objective justification for the distinction made. This occurs if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012 (extracts) and Biao v. Denmark, no. 38590/10, § 92, 25 March 2014).
4.2. The linkage principle is set out in section 10 § 1 of 2000 Aliens Act. This provision is intended to link the right to allowances, services and benefits (verstrekkingen, voorzieningen en uitkeringen) financed by collective funds to legal residence in the Netherlands (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1994/95, 24 233, nr. 3, pp. 1-2). The premise that illegal aliens cannot claim entitlement to collective provisions is considered by the legislator as principle of the law relating to foreign nationals (Parliamentary Documents, Lower House of Parliament 1995/96, 24 233, No. 6, pp. 3-4). As is apparent from AWIR’s enactment (Parliamentary Documents, Lower House of Parliament 2004/05, 29 764, No. 3, p. 44), the legislator has not only considered the linkage principle applicable to the situation referred to in section 10 § 1 of the 2000 Aliens Act in which an alien applies for allowances, services and benefits, but in addition has also declared it applicable to the situations referred to in section 9 §§ 2 and 3 of the AWIR in which a Dutch national applies for benefits and he has a partner or co-resident who has no legal residence in the Netherlands within the meaning of section 8 of the 2000 Aliens Act.
The application of Article 9 §§ 2 and 3 of the AWIR, like in the present case, leads to a distinction between, on the one hand, a Dutch national who cohabits with a Dutch partner or a foreigner with legal residence under section 8 of the 2000 Aliens Act and, on the other, a Dutch national, like the [appellant], who cohabits with an alien who no longer has legal residence.
4.3. In the opinion of the Administrative Jurisdiction Division there exists, at least in principle, a reasonable and objective justification for making a distinction based on nationality and residence status as follows from both section 10 § 1 of the 2000 Aliens Act and section 9 §§ 2 and 3 of the AWIR. As can be derived from the constant case law of the Administrative Jurisdiction Division, this distinction pursues a legitimate aim, taking into account that its application intends to prevent that illegal aliens, by receiving allowances and facilities, are enabled to continue their unlawful residence, acquire a sham appearance of full legality or build up such a strong legal position – or the appearance thereof – that after the procedure he appears to be virtually irremovable. The provisions of section 9 §§ 2 and 3 of the AWIR are in line with this to the extent that these provisions in addition intend to prevent that the partner or co-resident who unlawfully resides in the Netherlands could also benefit from the benefits granted to the Dutch national (decisions of the Administrative Jurisdiction Division of 22 December 2010 in case no. 200909234/1/H2 and 29 January 2014 in case no. 201302396/1/A2).
4.4. Noting what the [appellant] has submitted, the Administrative Jurisdiction Division has to examine whether the means employed – termination of the benefits previously granted to the [appellant] – stands in reasonable proportion to the legitimate aim described above under 4.3. In so doing, the Division puts first that – as apparent from its founding history – the linkage principle originally solely intended to create a direct link between the legality of residence of aliens and entitlement to collective facilities of the Netherlands government. This principle has been extended to other situations in which a Dutch national or an alien with legal residence in the Netherlands and who on his/her own account would be entitled to such facilities are nevertheless denied such facilities on the sole ground that he/she cohabits with a partner or has a co-resident who has no legal residence. The withholding of such facilities, such as in the instant case the termination of means-tested housing benefit, means-tested child care benefit and means-tested contribution towards the costs of health insurance, to a Dutch national of an alien with legal residence in the Netherlands can in special circumstances in a concrete case be regarded as being in violation of the provisions aforementioned under 4.1, in which case the statutory provision concerned, given what is stipulated in Article 94 of the Constitution, should be set aside.
4.5. In the present case, the [appellant] has lost as from 1 October 2012 entitlement to housing benefit, child care benefit and contribution towards the costs of health insurance, to which he would have been entitled had he been considered as a single parent. The Administrative Jurisdiction Division derives from documents in the case-file that [the appellant’s partner] arrived in the Netherlands in the beginning of 2011 to study physiotherapy. For this purpose the Deputy Minister of Security and Justice granted her a temporary non-asylum based residence permit (verblijfsvergunning regulier voor bepaalde tijd), valid from 1 September 2011 to 1 September 2012. It has not been possible for [the partner] to continue these studies successfully because she has had to undergo a very intensive radiation treatment for thyroid cancer and had also fallen pregnant. During her pregnancy, these health problems aggravated so that, despite her efforts, she failed to pass the necessary exams for continuing her study and thus also to obtain an extension of the residence permit granted to her. This serious and worrying health situation has therefore been a decisive factor which resulted in [the partner] being unable to ensure the continuation of legal residency in the Netherlands.
The Administrative Jurisdiction Division further notes that, when the Tax Administration/Benefits (Belastingdienst/Toeslagen) ended the allowances at issue, the child of [the appellant] and [his partner] – which child has Dutch nationality – was two months old.
In view of the above-mentioned health situation of [the partner] and considering that a child is vulnerable at that age and, as regards primary care needs, is highly dependent on the parents, it could not in reason be expected from the [appellant] that he, in order to be able to claim as a single parent the allowances needed by him and and child, to ask his [partner] to leave the home. Indeed, it cannot be excluded that the [partner] should have taken the child for providing it with the necessary care, whereas it is plausible that she was not able to do so due to her health situation. In addition, in this the family life will be significantly disturbed whereby the interests of the very young Dutch child are being compromised which is not in accordance with the guarantees set out in Article 8 of the Convention and accepted by the Court (Domenech Pardo v Spain (dec.), no. 55996/00, 3 May 2001; and Jeunessev. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014 www.echr.coe.int).
4.6. The above-described set of facts and circumstances, in which much weight is attached to the health situation of the [partner], leads the Administrative Jurisdiction Division to the conclusion that in this specific case there are such special circumstance that the Tax Administration/Benefits in terminating the benefits at issue has deployed a disproportionate means in order to achieve the objective mentioned above under 4.3. This finding is not altered by the fact that the [partner] – as apparent from the letter of the Tax Administration/Benefits of 22 October 2013 in the case-file – had lawful residence again as from 15 July and 5 August 2013 and that as from 1 August 2013 the [appellant] is entitled again to the benefits [at issue]. Indeed this does not alter that the [appellant] has not received any benefits over a considerable period – eleven months – of time. Application of section 9 §§ 1 and 2 of the AWIR is therefore incompatible with the prohibition of discrimination laid down in …Article 14 read in conjunction with Article 8 of the ECHR and Article 1 § 1 of Protocol 12 to the Convention. In view of the provisions of Article 94 of the Constitution, the Tax Administration/Benefits should have refrained from applying section 9 §§ 2 and 3 of the AWIR.
The argument succeeds.”
17. General welfare benefits for a single person under the Work and Social Assistance Act (Wet Werk en Bijstand) amount to 70% of the net statutory minimum wage in the Netherlands. Means-tested benefits, which may be granted in addition to general welfare benefits and only upon a request to be made each fiscal year anew, are intended to alleviate costs of renting accommodation, health care insurance and/or child care for families/persons with a modest income. Unlike general welfare benefits, means-tested benefits are not intended to secure a minimum level of subsistence (bestaansminimum).
COMPLAINTS
18. The applicant complained that the refusal to grant her the three means-tested benefits at issue violated her rights under Article 8 of the Convention as well as Article 14 of the Convention taken together with Article 8.
THE LAW
19. The applicant complained that the refusal to grant her means-tested housing benefit, a means-tested contribution towards the costs of (compulsory) health insurance and means-tested child care benefit was contrary to her right to respect for her private and family life under Article 8 of the Convention in that it entails that she and her children have to choose between destitution and abandoning their husband and father.
20. Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home ….
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
21. The Court would emphasise at the outset that neither Article 8 nor any other provision of the Convention guarantees, as such, a right to social security benefits or any social benefit of a particular amount, and does not confer on an individual a right to enjoy any given standard of living (see Di Triziov. Switzerland, no. 7186/09, § 59, 2 February 2016; and Jeunesse v. the Netherlands [GC], no. 12738/10, § 131, 3 October 2014).
22. It is true that the Court has previously held that, by granting benefits to large families, States are able to “demonstrate their respect for family life” within the meaning of Article 8 of the Convention and that such benefits therefore come within the ambit of Article 8 (see Dhahbi v. Italy, no. 17120/09, § 41 with further references, 8 April 2014).
23. However, the decisions challenged by the applicant were solely taken on the basis of a statutory scheme set up for the purpose of ensuring proper enforcement of immigration controls. The decisions at issue did not, themselves, determine B’s right to reside in the Netherlands. Although Section 9 §§ 2 and 3 of the AWIR seeks to encourage irregular aliens to leave the Netherlands and to prevent irregular aliens, like B, from benefitting from State-sponsored schemes for lawful residents with a modest income, the decisions complained of were not, as such, aimed at ending B’s cohabitation with the applicant and their children.
24. Accordingly, the Court finds that, in the circumstances of the present case and in contrast with the decisions taken in respect of B’s residence permit and the exclusion order imposed on him, the refusal of the means-tested benefits at issue cannot, as such, be regarded as an interference with the applicant’s rights under Article 8 § 1 of the Convention.
25. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
26. The applicant further complained under Article 14 taken together with Article 8 that the refusal to grant her the means-tested benefits at issue is based on a discriminatory difference in treatment between aliens holding a residence permit and aliens who do not.
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
27. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, for instance, Thor v. Austria (dec.), no. 67656/12, § 38 with further references, 19 September 2017).
28. The scope of the margin of appreciation will vary according to the circumstances and, where it concerns economic or social policy choices, the margin of appreciation generally allowed to States under the Convention is a wide one (see, Andrejeva v. Latvia [GC], no. 55707/00, § 83 with further references, ECHR 2009).
29. The Court notes that the Administrative Jurisdiction Division of the Council of State examined the applicant’s complaint under Article 14 taken together with Article 8 that – in view of her circumstances – the refusal to grant the means-tested benefits at issue was disproportionate. The Division considered at the outset that the linkage principle forms in itself a reasonable and objective justification for distinguishing between, on the one hand, a person staying lawfully in the Netherlands and, on the other, an irregular alien (see under no. 5.3. of the Division’s decision of 13 November 2013, quoted at paragraph 10 above). The Division accepted that in very special circumstances it could be contrary to Article 14 taken together with Article 8 to deprive a lawfully resident adult of means-tested benefits on account of an unlawfully resident cohabiting spouse. It was thus accepting that there must be a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see under nos. 5.4. of the Division’s decision of 13 November 2013, quoted at paragraph 10 above; see also under the statement of law under nos. 4.1. and 4.4. – 4.6. in the later decision of 22 October 2014, quoted at paragraph 16 above). However, agreeing with the Regional Court, the Division found that there were no exceptional circumstances in the applicant’s case, warranting a finding that the application of the main rule (loss of entitlement of the means-tested benefits at issue) would be disproportionate, which would render the decision to deny the applicant the means-tested benefits contrary to Article 14 (see under no. 5.5. of the decision of 13 November 2013, quoted at paragraph 10 above). The Court sees no reason to substitute its own assessment for that of the domestic courts.
30. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 April 2019.
Fatoş Aracı Dmitry Dedov
Deputy Registrar President
___________________
[1]. See § 14 below.
[2]. To be distinguished from child care allowance (kinderbijslag) which, unlike the child care benefit, is not a means-tested tax credit but a social security allowance paid by the Social Insurance Bank to parents, irrespective of their income, and intended to help parents in meeting costs of the care and education of their children.Means-tested child care benefit is paid in addition to child care allowance.
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