Yeshtla v. the Netherlands: a missed opportunity to reflect on the discriminatory effects of States’ social policy choices

By Fulvia Staiano, Adjunct Professor of International Law and European Union Law (Giustino Fortunato University)

On 15 January 2019, the European Court of Human Rights (ECtHR) delivered an inadmissibility decision on the case of Emabet Yeshtla v. the Netherlands. In this case, the ECtHR was asked to determine whether the withdrawal of the applicant’s housing benefits (motivated by the fact that she cohabited with an unlawfully resident son) had breached her right to respect for private and family life under Art. 8 of the European Convention on Human Rights (ECHR), alone and in conjunction with the prohibition of discrimination under Art. 14 ECHR. This case raised interesting questions on the potential impact of social assistance and welfare policies on recipients’ family life, as well as on the discriminatory effects of domestic norms that use social benefits as a tool to discourage irregular residence. Regrettably, the ECtHR dismissed this case without a thorough consideration of such questions.

Facts

The applicant – Ms. Emabet Yeshtla – is a naturalised Dutch citizen of Ethiopian origin. On 6 April 2002, at the age of 16, her son Y arrived in the Netherlands to be reunited with this mother. Y filed multiple applications for residence permits, which were all unsuccessful. In the meantime, Ms. Yeshtla, who was already in receipt of welfare benefits, successfully applied for housing benefits for 2006 and 2007. However, in July 2007 the Tax Department withdrew these housing benefits and asked her to return those already received, pursuant S 9 of the General Act on Means-tested (Benefits) Regulations. The latter denies entitlement to income housing in presence of a co-resident who is not lawfully resident in the Netherlands. The link between lawful residence and entitlement to benefits granted by public authorities is referred to as the “linkage principle”. On 10 April 2009, Y was eventually granted a “no fault” residence permit valid from March 2009 to March 2010. This residence permit is issued to migrants who cannot leave the Netherlands through no fault of their own. Y qualified for such a permit because the Ethiopian mission in Brussels had refused to provide him with travel documents after he had failed to prove his Ethiopian nationality.

In June 2009 the Tax Department reiterated its request to Ms. Yeshtla to repay the housing benefits she had received in 2006 and 2007. Ms Yeshtla’s appealed this decision before the Haarlem Regional Court – which rejected it – and then before the Administrative Jurisdiction Division of the Council of State. The latter upheld her appeal and established that the Regional Court had failed to assess the existence of circumstances that warranted for an exception to the linkage principle. However, the Council of State took it upon itself to make this assessment and answered this question in the negative. First, it considered that the linkage principle constituted an objective and reasonable justification for treating tenants differently depending on whether their co-habitant was lawfully resident in the Netherlands or not. Second, the Council of State observed that the specific circumstances of Ms. Yeshtla, who was HIV-positive and was being cared for by Y, were not so exceptional to justify the disapplication of relevant norms on housing benefits.

Judgment

Before the ECtHR, Ms. Yeshtla complained that the termination of her housing benefits breached her right to private and family life under Art. 8 ECHR, as well as the prohibition of discrimination under Art. 14 ECHR taken together with Art. 8. The ECtHR deemed the application inadmissible. To reach this conclusion, it focused on two main aspects.

First, the ECtHR considered that there was no interference in Ms. Yeshtla’s family life. While there was family life between her and Y for the purpose of the application of Art. 8 ECHR, the withdrawal of Ms. Yeshtla’s housing benefits had not interfered with it. Indeed, this decision had not undermined Y’s right to live in the Netherlands nor was it aimed or it had produced the effect of ending his cohabitation with his mother.

Second, the ECtHR shared the Council of State’s conclusions on the absence of exceptional circumstances warranting access to housing benefits despite the irregular residence of a co-habitant. With this respect, the ECtHR recalled that the difference in treatment lamented by Ms. Yeshtla between tenants who co-habited with a lawfully resident person and those who did not could be considered as discriminatory only in absence of an objective and reasonable justification. In the ECtHR’s view, this conclusion was prevented by the Council of State’s observation that the linkage principle pursued a legitimate aim (namely, preventing unlawful residents from indirectly benefiting from housing benefits) and that loss of entitlement of housing benefits was a proportional means to reach this aim. The ECtHR indeed shared the domestic court’s assessment of the lack of exceptional circumstances in the case at hand which may have led to a different conclusion.

Comment

In this decision, the ECtHR failed to thoroughly consider the impact of the withdrawal of housing benefits on the applicant’s family life. In her application, Ms. Yeshtla had complained that this measure forced her to choose between interrupting her cohabitation with her son (who provided her with care due to her medical issues) and losing housing benefits. Because Ms. Yeshtla’s sole income consisted in welfare benefits, the latter choice would have entailed serious financial hardship. In the decision under review, the ECtHR did not take these circumstances into sufficient account, and thus it held that there was no interference in Ms. Yeshtla’s family life. This conclusion stemmed from a consideration of housing benefits granted under Dutch law in a vacuum. Instead of acknowledging that the withdrawal of housing benefits would force Ms. Yeshtla to choose between the physical proximity of a son and the immediate care he provided on the one hand, and significant economic and housing difficulties on the other, the ECtHR focused exclusively on the aim of this measure and on its immediate effects. As a result, it failed to consider the impact on Ms. Yeshtla’s private and family life implied in the obligation to sacrifice the one or the other. The ECtHR merely observed that Y had not moved out of his mother’s home despite the fact that “she risked losing her entitlement to housing benefit on account of his presence” and that she was still in receipt of general welfare benefits.

Access to affordable housing can be a crucial component of the enjoyment of the right to family life, especially for individuals and families relying on welfare benefits or experiencing financial difficulties. This connection was aptly traced by Judge Pinto de Albuquerque in his dissenting opinion in relation to the judgment of Garib v. the Netherlands, where he highlighted “the considerable repercussions that housing policies may have for the private and family life and vulnerability of the most underprivileged members of society”. In such situations, recognising an excessively broad margin of appreciation to States Parties in the implementation of economic and social policy would undermine the rights recognised by the ECHR. On this blog, the Garib judgment has been criticised for its failure to narrow the State’s margin of appreciation in the light of the applicant’s vulnerability as a single mother reliant on welfare benefits. A similar observation can be made with reference to the decision under review, and more specifically with respect to the ECtHR’s analysis of the claims of discrimination raised therein. Indeed, while the matter of the proportionality of the withdrawal of housing benefits was overlooked by the ECtHR’s in relation to the right to family life taken alone, this was briefly discussed in relation to Ms. Yeshtla’s complaint that the measure was discriminatory. The difference in treatment analysed by the ECtHR was between tenants who shared their household with a co-resident who had a residence permits and those who cohabited a person without a residence permit. In the ECtHR’s view, the linkage principle as applied in this context constituted a reasonable and objective justification because the denial of housing benefits to Ms. Yeshtla was proportionate to the aim pursued. In support of this conclusion, the ECtHR recalled the general principle whereby States enjoy a broad margin of appreciation in their economic and social policy choices.

Two main considerations, however, could have led the ECtHR to a different conclusion. First, the vulnerability of Ms. Yeshtla may have warranted a narrowing down of this margin of appreciation and a conclusion that the denial of her right to housing benefits constituted a disproportionate measure in her specific case. Several scholars have commented on the increasing recognition in the ECtHR’s jurisprudence on discrimination of the concept of vulnerable groups, defining such vulnerability through references to social context rather than innate characteristics (Arnardóttir, ‘Vulnerability under Article 14 of the European Convention on Human Rights’, 3 Oslo Law Review 2017; Peroni and Timmer, ‘Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law’, 11 International Journal of Constitutional Law 2013). In the case under review, Ms. Yeshtla’s situation was one of undeniable social disadvantage. It is debatable whether, on account of her health condition, she could have been qualified as part of a vulnerable group. In any case, this circumstance together with her precarious economic situation and the fact that she relied on her cohabiting son’s care and assistance suggested at the very least that the withdrawal of housing benefits could have caused excessive hardship on her on accounts of her vulnerable position. This aspect deserved closer attention in the light of the ECtHR’s case law on discrimination.

Second, the proportionality of the means employed with the aim pursued by the linkage principle should have been assessed also in the light of the fact that Ms. Yeshtla’s son had obtained a residence permit pending the proceedings before the national authorities. Even conceding that denying housing benefits to a Dutch citizen to indirectly discourage an unlawful resident to remain in the country is in fact a legitimate aim (an assessment questionable in itself), the matter of proportionality should have been considered more carefully in this case. While certainly Y did not enjoy lawful residence at the time his mother received housing benefits, domestic courts’ references to the aim of the linkage principle appear redundant in the light of the regularisation of his residence status. Indeed, the ECtHR narrowly considered this aim to coincide with the objective of preventing a co-resident without a residence permit to benefit indirectly from housing benefits. However, the Council of State’s judgment clarified that this aim was related to a broader objective, stating that “the aim of the linkage principle is to prevent enabling irregular aliens from continuing their irregular stay or acquiring a semblance of complete legality through receipt of social security benefits”. It emerges clearly from the case under review that Ms. Yeshtla’s son eventually regularised his residence by relying on grounds completely unrelated to the length of his stay in the Netherlands or his mother’s receipt of social security benefits. This consideration should have put the objective pursued by the denial of housing benefits to Ms. Yeshtla into perspective, and should have played a role in the ECtHR’s assessment of its proportionality in the case under consideration.

Conclusions

In its decision on the case under review, the ECtHR missed a chance to offer important clarifications on the links between housing policies (and more broadly of legal measures concerning social assistance benefits) and the right to respect of family life. By too hastily dismissing the case as inadmissible, the ECtHR failed to consider the crucial question of the impact of economic and social policies aimed at discouraging irregular residence on this right, as well as that of their possibly discriminatory effects on vulnerable individuals.