July 07, 2011
Immigration was a challenge in the past, is still a challenge now and will probably remain a challenge in the future for policy makers as well as for judges. Especially when it comes to public services for individuals staying irregularly in a country, this issue becomes more difficult. Can the regular or irregular stay of an individual in a country justify a differential treatment in access to basic services such as health care and education? In Bulgaria, individuals who do not have a permanent residence permit have to pay a school fee while Bulgarian citizens and individuals having such a permit enjoy education free of charge. This was the issue the European Court of Human Rights was confronted with in the recent case of Anatoliy Ponomaryov and Vitaliy Ponomaryov v. Bulgaria.
Anatoliy and Vitaliy are Russian nationals who migrated to Bulgaria after their mother married a Bulgarian national. Their mother obtained a Bulgarian permanent residence permit and the applicants were consequently entitled to reside in the country under their mother’s permit until they reached the age of eighteen. From that age on, the applicants had to request a personal residence permit. Anatoly was still in secondary school when he turned eighteen. Because from that moment on Anatoly did not fall under his mother’s residence permit anymore and still didn’t have a residence permit of his own, he had to pay a school fee to be able to attend classes and obtain his diploma. One year later Vitaliy also turned eighteen and endured the same consequence as his brother.
The applicants alleged to be discriminated against, since they have been required to pay school fees, while Bulgarian nationals and aliens having a permanent residence permit have not. The Court limits the issue to the question whether States who have “voluntarily decided to provide such education free of charge, … may deny that benefit to a distinct group of people”.
The Court starts by observing that:
“a state may have legitimate reasons for curtailing the use of resource-hungry public services –such as welfare programs, public benefits and health care- by short-term and illegal immigrants, who, as a rule , do not contribute to their funding”.
This observation does already cover the case with dark clouds. However, the Court immediately brightens the horizon by stating that this argument does not automatically apply in the field of education “which is one of the most important public services in a modern State”. The particular importance the Court accords to education finds its origin in two arguments. A first argument is that “unlike some other public services … education is a right that enjoys direct protection under the Convention”. This argument however raises the question whether a contrario, other public services that are not enshrined in the Convention, such as health care, are less important.
Secondly, the Court sees education as a way to integrate minorities “in order to achieve pluralism and thus democracy” and in light of this, education “[i]s also a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions”. It is interesting to see how the Court does not only take the personal development of the applicants into account, but also the larger societal positive implication of education. This broader societal context also plays a role in the width of the margin of appreciation accorded to the State in this field. For the Court, “the State’s margin of appreciation in this domain increases with the level of education, in inverse proportion to the importance of that education for those concerned and for society at large”. The Court illustrates this with the comparison between compulsory primary schooling “–which provides basic literacy and numeracy – as well as integration into and first experiences of society-.” and university education which remains optional for many people and where the Court judges that “higher fees for aliens – and indeed fees in general – seem to be commonplace and can, in the present circumstances, be considered fully justified”. It is not completely clear whether by ‘present circumstances’ the Court means this case against Bulgaria. The Court, anyway, by considering higher fees for alien university students as “fully justified”, goes a step too far. The reasoning that the margin of appreciation increases with the level of education seems fair and logical, but the fact that a state has a broader margin of appreciation when it comes to university students, does not necessarily mean that a higher fee is ‘fully’ justified. This position of the Court seems even more problematic, when approached in the light of its position towards secondary education. On the one hand, the Court observes that several international conventions also make the distinction between several educational levels, but, on the other hand:
“The Court is mindful of the fact that with more and more countries now moving towards what has been described as a “knowledge-based” society, secondary education plays an ever-increasing role in successful personal development and in the social and professional integration of the individuals concerned. Indeed, in a modern society, having no more than basic knowledge and skills constitutes a barrier to successful personal and professional development. It prevents the persons concerned from adjusting to their environment, and entails far-reaching consequences for their social and economic well-being.”
For this reasons the Court will apply a stricter scrutiny to the assessment of the proportionality of the measure affecting the applicants. These reasons mentioned in the quote above could also be applied in the case of university students. In our “knowledge-based society” as the Court calls it, the value of a university diploma should not be underestimated.
In the proportionality assessment in the present case, the Court first of all makes clear that it does not want to determine whether Bulgaria is entitled to deprive all irregularly residing aliens from educational benefits but that it “must confine its attention as far as possible, to the particular circumstances of the case before it”. These circumstances included that the applicants did not arrive unlawfully in the country and that the authorities had no substantive objection to the applicant’s remaining in Bulgaria and did not have the intention to deport them. Thus, the Court concludes, “any considerations relating to the need to stem or reverse the flow of illegal immigration clearly did not apply to the applicant’s case”. Furthermore the Court observes that it cannot be said that the applicants have tried to abuse the educational system; moreover they are fully integrated in Bulgarian society and did not have special educational needs. In view of these specific circumstances of the case, the Court concludes that the requirement to pay school fees was not justified and that article 14 in conjunction with article 2 of protocol 1 was violated.
Although the Court wanted to limit its appreciation to the present case, the implications of some parts of the reasoning reach beyond the situation of Anatoliy and Vitaliy. The Court opens the door a little bit so that the applicant can go through, but might be closing it to other applicants whose circumstances differ from the ones in this case. Was it necessary to make such a strong distinction between several public services? What about an alien without residence permit who needs health care? Was it necessary to refer to higher fees for university students who are irregularly residing in a country as ‘fully’ justified? As it has been already mentioned in the introduction of this post, this type of cases raises very difficult issues. In this case, this seems to have resulted in a cloudy judgement.