When Equal Treatment is Not Enough: Human Dignity for Migrant EU Citizens

Table of Contents: 1. Introduction. – 2. The EU law approach to social rights for migrant EU citizens: conditional equal treatment. – 2.1. Social rights and equal treatment for economically active persons – 2.2. Social rights and equal treatment as EU citizenship rights – 2.3. Social rights as EU fundamental rights – 3. The CG case and the CJEU’s U-turn on EU fundamental rights. – 4. Social rights and human dignity in ECHR case law. – 5. Limitations to human dignity as justification for social rights – 5.1. Zooming out on human dignity and its role – 5.2. Who decides what ‘dignified existence’ means? – 6. Conclusion.

Abstract: Neither in EU citizenship law nor in human rights law, social rights for migrants are absolute rights. Both models accept limitations linked to the idea that states can exclude certain categories of migrants from the welfare state. Under EU law, legal residence conditions access to social rights for EU citizens, while under human rights law, migrants’ social claims are linked to the idea of a dignified existence. The latter model has its own difficulties linked to requirements concerning the severity of migrants’ conditions, the existence of state obligations towards them and the vulnerability of the applicant. This article examines what human dignity as a matter of EU fundamental rights can add to equal treatment for EU citizens and their social claims after the intervention of the Court of Justice of the EU in the C.G. case. It brings together EU law and human rights law to understand how human dignity informs the interpretation of socio-economic rights in human rights law and whether it can function as an alternative or corrective to equal treatment for migrant EU citizens. Human dignity seems to play a role for those migrant EU citizens who reside legally in another EU state, despite not meeting the conditions of EU law, and who are vulnerable. This is an exceptional route to social benefits, but one that does create a minimum of positive obligations for the host state to ensure that migrants live in dignified conditions.

Keywords: social rights – human rights – vulnerability – destitute EU citizens – dignified living conditions – EU Charter of Fundamental Rights.

1.   Introduction

EU citizens are a category of migrants who, upon moving to another EU state, enjoy equal treatment with nationals of that state as a matter of primary and secondary EU law. They are much more protected than non-EU migrants who lack such a ‘constitutionalised’ right to equal treatment, and who enjoy a weaker position under EU antidiscrimination legislation.[1] Yet, when it comes to access to the welfare state and social rights claims, equal treatment for EU citizens is stratified and conditional on the legality of their residence, which requires possession of sufficient resources so as not to become an unreasonable burden on the host state. The objective of protecting national welfare states has gained prominence in the jurisprudence of the Court of Justice of the EU (CJEU), which emphasizes the Member States’ right to deny social claims. The legal framework regulating access to social rights must contend with the tension between, on the one hand, the desire and perceived need to protect the national welfare systems of the EU states from unreasonable burdens and, on the other hand, the idea that the realization of the free movement of persons requires equal treatment. The result is that for migrant EU citizens who lack sufficient resources and who make social claims in their host states, equal treatment can be out of reach and does not guarantee access to social benefits.

As a novelty, in the C.G. case[2] the Court of Justice has relied on the EU Charter of Fundamental Rights (EU Charter) to interpret the claim to social rights made by an EU citizen lacking sufficient resources. In its previous jurisprudence, such an EU citizen would have been found to be outside the scope of Directive 2004/38[3], which regulates the presence and rights of migrant EU citizens, and therefore outside the equal treatment provision contained in this directive. Remarkably, the CG case introduces the possibility to rely on EU fundamental rights – human dignity, the best interest of the child and respect for family life – as justifications for access to social rights for otherwise excluded migrant EU citizens. Furthermore, it establishes positive state obligations towards vulnerable EU citizens since states must ensure they live in dignified conditions, even when they are refused social assistance.

Considering that human dignity is a new addition to the Court’s jurisprudence on social rights and EU citizenship, the aim of this article is to explore what human dignity can add to equal treatment for EU citizens and their social claims after the CJEU’s intervention in the C.G. case. The article discusses two models for migrants’ access to social rights: first, in EU free movement law, the principle of equal treatment structures access to social rights for migrant EU citizens. Second, in human rights law, human dignity has been successfully relied upon to derive social rights for migrants. The C.G. case creates a bridge between these two models via EU fundamental rights. Consequently, the article brings together EU law and human rights law to understand how human dignity informs the interpretation of socio-economic rights in human rights law and whether human dignity can function as an alternative source of rights or corrective to the conditional nature of equal treatment for migrant EU citizens. The article is structured as follows: section 2 gives a cursory view of social rights for migrant EU citizens, which sets the scene for the arrival of EU fundamental rights in the C.G. case in section 3. Section 4 delves into the interpretation of Article 3 ECHR as source of social rights for non-nationals and the relevance of vulnerability for successful claimants. Section 5 examines some of the shortcomings of the combination of human dignity and social rights identified in human rights literature, namely their abstract and general character; the notion of core minimum obligations and the issue of courts lacking democratic credentials to adjudicate on social rights. Section 6 concludes that human dignity remains an exceptional solution for migrant EU citizens claiming social rights outside of equal treatment.

2.   The EU law approach to social rights for migrant EU citizens: conditional equal treatment

Social rights are institutionalised and regulated in very different manners at local, state, regional or international levels. Likewise, they can be approached as rights of citizenship, as human rights or as rights of migrants. The EU integration project aspires to incorporate a strong social dimension as per Article 3 TEU, which speaks of the EU’s desire to become ‘a highly competitive social market economy’. The attempts to achieve this goal and the complex relation between the economic and social dimensions of the EU integration project are well researched and debated.[4] In the context of the EU free movement of persons, the question whether equality in relation to social rights and the welfare state accompanies the migrant EU citizen in the host state can be seen as a specific iteration of the strained relation between the economic and the social dimensions of the EU project. EU free movement law deals with this issue as a question of equal treatment between nationals of the host state and migrant EU citizens linked to the idea that one of the underlying objectives of EU free movement law is to remove obstacles to the exercise of fundamental freedoms. Therefore, as a rule primary and secondary EU law recognise a right to equal treatment for EU citizens. Yet, exceptions are envisaged, and EU states are allowed to reserve equal treatment with nationals in the social sphere for economically active, self-sufficient EU citizens and permanent residents.

The EU approach to social rights differs from constitutional law where social rights are considered part of the social contract between the citizen and the state, and from human rights law where rights are recognised because the holder is a human being endowed with dignity. In this section, I will discuss how the EU approach of grounding social rights in equal treatment works well in respect of the free movement of EU citizens as EU workers where it aligns with the objective of removing obstacles to the exercise of the freedom of movement of EU workers as part of the completion of the EU internal market. The idea is that the failure to recognise equal treatment between EU and national workers would affect the effectiveness of the fundamental right to freedom of movement of persons. Social rights for EU workers are recognised as a matter of equal treatment because they serve a specific function within the EU internal market. The recognition of a right to freedom of movement for economically inactive EU citizens, the introduction of EU citizenship and the introduction of EU fundamental rights muddy waters since they do not fit perfectly within the above model that has economic integration as its goal. Both EU citizenship and EU fundamental rights can be explored as opportunities to redefine the link between free movement and social rights beyond a purely economic logic, yet none offer a complete solution. The conditional nature of the right to free movement for economically inactive EU citizens transmutes into a conditional right to equal treatment for such citizens and limited or no social rights for them. It is within this complex legal terrain that human dignity as an EU fundamental right enters the picture as possible justification for social rights for economically inactive EU citizens.

2.1. Social rights and equal treatment for economically active persons

The legal design of the fundamental right to move for the purposes of work or self-employment (Articles 45 and 56 TFEU) includes a right to be treated equally with national workers/self-employed persons. Exceptions are allowed under limited circumstances. They include differential treatment concerning EU workers in the field of public service and the right to exclude EU workers from the national labour market for a limited period after enlargement. Besides these situations, the general rule is that of equal treatment. Article 45(2) TFEU stipulates the prohibition of discrimination on the basis of nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. This is further operationalised in secondary legislation via Regulation 492/2011[5] on freedom of movement for workers within the Union and Directive 2014/54,[6] which introduces measures to facilitate the exercise of rights conferred in the context of freedom of movement for workers. Empirical studies document a reality that is sometimes different from the letter of the law, where migrant EU workers experience abuse and precarization under neoliberal market conditions and flexible employment relations.[7] Especially after the 2008 economic crisis, there have been recurrent calls to ‘re-socialise Europe’ which are coupled with EU initiatives in the social policy sphere. These initiatives aim to respond to the above-mentioned empirical reality by setting minimum social standards across EU states but without necessarily creating new individual rights, as the example of the directive on minimum wages illustrates.[8]

The EU institutions remain convinced of the fundamental role of equal treatment in the realization of the internal market.[9] Likewise, in its jurisprudence on the free movement of workers, the Court of Justice interprets the right to equal treatment as essential for the realization of the internal market. The legal reasoning employed by the Court is remarkably stable over the years: discrimination between national and EU workers would make the exercise of the right to free movement less attractive and, therefore, hamper its realization. Even if in practice there are examples of EU workers continuing to work despite being discriminated or treated less favourably than national workers in respect of pay, housing or living conditions,[10] the Court has not faltered from the argument that EU workers would be less willing to move if they would not be entitled to equal treatment. This legal reasoning is sound if we accept that equal treatment functions as a safeguard for workers’ rights since it prevents social dumping. In this view, equal treatment in relation to social rights and access to the welfare state for migrant EU workers is beneficial for the workers themselves because it aids their integration and that of their families,[11] as well as for the host state since it protects social standards from being downgraded by the operation of market forces.[12] The CJEU has reasoned that EU workers who have contributed to the financing of their host state’s social protection systems are entitled to benefit from it in the same way as nationals. Unlike economically inactive EU citizens, EU workers who claim social rights from the host state cannot be treated as unreasonable burdens on the social assistance system; they are entitled to equal treatment because of the contributions they paid into the system.[13] The right to equal treatment extends to their family members as well.

2.2 Social rights and equal treatment as EU citizenship rights

The right to free movement was extended to economically inactive nationals of EU states prior to the introduction of the legal status of EU citizenship in the Maastricht Treaty, but only conditional upon such nationals having sufficient resources and comprehensive medical insurance so as not to be reliant on the host state. After the introduction of EU citizenship as the legal status that defines the relationship between the EU and the nationals of the Member States, the secondary legislation that gives it effect perpetuates the division between economically active and economically inactive EU citizens. Although the language of equal treatment is used in relation to all EU citizens, economically active or not, their access to social rights is stratified depending on economic activity and length of residence. As such, Article 18 TFEU prohibits any discrimination on nationality grounds but only within the scope of the Treaty and without prejudice to any special provisions contained therein.

For migrant EU citizens, the relevant provisions are contained in Directive 2004/38 which sets out the conditions for the exercise of the right to free movement. Article 24(1) of the directive sets equal treatment as the general rule, while Article 24(2) introduces exceptions from equal treatment. No equal treatment is expressly allowed for residence up to three months, jobseekers and study related grants and loans prior to the acquisition of the right of permanent residence. Workers and self-employed persons as well as those retaining such statuses under the directive continue to enjoy equal treatment in relation to social rights. For economically inactive citizens, equal treatment and access to the welfare system of the host state is linked to them being resident on the basis of the directive, which the CJEU interprets as residence that meets the conditions of Article 7 (sufficient resources and comprehensive medical insurance). Furthermore, EU citizens who have acquired permanent residence in line with the requirements of Article 16 – five years of legal and continuous residence meeting the conditions of Article 7 – are entitled to equal treatment, even if they no longer meet the sufficient resource condition or stop being economically active.

If for EU workers equal treatment in relation to social rights is seen as leading to their integration in the host state, for EU citizens equal treatment is legally mandated only once they are economically integrated. The different reach of social rights in respect of EU workers and EU citizens who are economically inactive and lack permanent residence is explained as linked to the different sources of the social solidarity they can expect from a host state: work and economic contribution in the case of EU workers, versus an incomplete notion of belonging as EU citizens for the latter category that in turn legitimates a more limited version of transnational solidarity.[14] Minderhoud has referred to this as a ‘catch-22’ situation: economically inactive EU citizens can rely on equal treatment, only if they have sufficient resources not to require social benefits from the host state, raising the question if they are ever entitled to such benefits.[15]

The main elements of the Court’s jurisprudence on equal treatment for economically inactive EU citizens can be summarised as follows. First, legal residence is interpreted as residence meeting the conditions of Directive 2004/38; second, an emphasis on the conditionality of the right to reside; and third, the ambiguous space for proportionality and individualization as the legal tools to assess social rights claims: does the making of a social right claim indicate the lack of resources? Lack of sufficient resources translates into the failure to meet the residence conditions stipulated by the directive with the consequence that the EU citizen is not within the scope of the equal treatment provision in the directive (Article 24) and presumably also outside Article 18 TFEU, if we understand Article 24 as the operationalization of Article 18 TFEU.[16]

The Court’s jurisprudence acknowledges that to safeguard their social assistance systems, EU states have the right to refuse social benefits and to terminate residence where economically inactive citizens lack resources. Some Member States have interpreted the right to protect themselves against unreasonable burdens as including the right to categorise social rights claims made by EU citizens as evidence of an unreasonable burden. Furthermore, EU states have responded to the Court’s jurisprudence on social rights by emphasising the requirement of legal residence, by expanding the scope of exclusion from equal treatment and by seeking to consolidate via legislative and administrative practices the power to exclude EU citizens from social rights.[17] Such measures may add to social precarity or destitution for the EU citizens in question, but the logic of EU free movement is that such citizens should either become economically productive agents, thus bringing themselves within the paradigm of access to social rights via contributions to the internal market or return to their own state of nationality that retains responsibility for them. The latter option is formalised in the laws of some EU states that award destitute EU citizens a one-time financial help to return to their own state of nationality but no access to social assistance or minimum subsistence benefits (see France, Germany).[18]

2.3 Social rights as EU fundamental rights

The European Charter of Fundamental Rights brings together all fundamental rights protected in the EU as they result from the established case-law of the CJEU, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the common constitutional traditions of the Member States. Since the entry into force of the Nice Treaty, the Charter is binding primary law. It covers civil, political, social, and cultural rights and applies to EU citizens and all persons under the jurisdiction of the Member States. Many of the rights contained therein resemble provisions in the ECHR in which case, the ECHR functions as the minimum standard below which the interpretation of EU fundamental rights cannot fall.

Title IV of the Charter is titled ‘Solidarity’ and is inspired by the rights contained in the European Social Charter, another Council of Europe (CoE) instrument, which was adopted after the failure to include socio-economic rights into the ECHR. Historically, the divisions within the CoE system of protection between, on the one hand, judicially enforceable civil and political rights within the ECHR and, on the other hand, social rights as contained in the Social Charter with a weaker enforcement mechanism have been interpreted as having had consequences for EU law as well. The Court of Justice has ‘never seriously attempted to use the general principles of Community law as a source for the protection of social rights.’[19] Nor has the Court tried to use national constitutional traditions that do protect social rights, leading to ‘the second-hand status of social rights’[20] within the EU legal order prior to the Lisbon Treaty.

The introduction of new social values within the EU treaties (Article 3 TEU), of human dignify as foundational value (Article 2 TEU) and the EU Charter becoming primary source of EU law are seen as changing this landscape. Yet the ‘Solidarity’ chapter in the EU Charter is considered to have had a limited impact on the social rights of migrant EU citizens and on citizenship law. While the inclusion of a whole title dedicated to solidarity is understood to be an expression of the EU’s values and social objectives,[21] the effectiveness and justiciability of the solidarity provisions are debated. Some have the status of ‘principles’, while those that are ‘rights’ are always constrained by the formulation ‘as provided for by Union law and national laws and practices’.[22] This appears in all three subparagraphs of Article 34 EU Charter which details the rights to social security and social assistance (paras 1 and 2) and decent existence for those lacking sufficient resources (para 3). Article 34, much like the rest of Title IV, is appraised as not creating new justiciable rights.[23] Neither does it expand the scope of existing legislation in line with the overall approach of the Charter, which is to reaffirm existing rights.[24] Concerning migrant EU citizens, social rights are recognized when citizens move and reside legally which reads as a reiteration of Article 24 of Directive 2004/38. There is nothing in the text of Article 34 EU Charter to suggest a reading whereby it creates additional rights to social security or social assistance. This may also explain why it is was not relied upon in EU social citizenship cases.

In the Dano case[25], the CJEU was asked for the first time to explain the relationship between secondary legislation on EU citizens, the TFEU provisions on equal treatment and the EU Charter of Fundamental Rights. The German referring court found it problematic that EU citizens could be refused social assistance on the basis of EU law as unreasonable burdens for the German welfare system, while destitute asylum-seekers were entitled to a modicum of social rights based on the national constitutional standards linked to a dignified existence. One of the questions raised was whether the EU Charter informed the right to equal treatment that EU citizens enjoy based on Article 18 TFEU and Directive 2004/38. The CJEU’s answer was that it lacked jurisdiction to answer the question from an EU fundamental rights perspective because to do so would be to extend the application of the Charter contrary to Article 51. The argument was that when EU states decide what conditions must be met for the award of social benefits, they are not implementing EU law, therefore such conditions cannot be scrutinized from the perspective of the Charter. Accordingly, despite social rights being recognised in the Charter, these provisions are seen as limited to upholding already existing rights. For migrant EU citizens this was understood to mean that no new rights are created and no different interpretation of already existing rights.

Contrary to the position taken in respect of social rights for EU citizens and the Charter, the CJEU has used human dignity (Article 1 EU Charter) to interpret the material conditions of asylum seekers based on existing EU laws. In the EU legal order, human dignity is both a foundational value of the EU project (Article 2 TEU), a fundamental right (Article 1 EU Charter) and, according to legal scholars, a foundational constitutional principle.[26] The Reception Conditions Directive entitles asylum seekers to material reception conditions which include ‘housing, food and clothing, and a daily expenses allowance’ and stipulates that Member States should provide an adequate standard of living for asylum seekers, which guarantees their subsistence and protects their physical and mental health. The Court of Justice has ruled that even where states seek to sanction the behaviour of an asylum seeker by withdrawing material conditions, they are nonetheless obliged to ensure a dignified standard of living for the applicant; full denial is incompatible with the Directive and sanctions require an individual assessment.[27] The CJEU reasons that ‘respect for human dignity within the meaning of that article requires the person concerned not finding himself or herself in a situation of extreme material poverty that does not allow that person to meet his or her most basic needs such as a place to live, food, clothing and personal hygiene, and that undermines his or her physical or mental health or puts that person in a state of degradation incompatible with human dignity’.[28] After an analysis of cases in which the CJEU refers to human dignity to interpret the content of material conditions for asylum seekers and the minimum they require, Karin Zwaan argues that ‘Article 1 Charter receives relatively little attention from the Court of Justice; when this provision is mentioned, it is often only in combination with other provisions of the Charter and without any further explanation.’[29]

To sum up, prior to the C.G. case, which is discussed in section 3, the CJEU has not relied on the EU Charter to interpret the social rights of migrant EU citizens choosing to discuss such claims as matters of equal treatment, rather than questions of dignified standards of living as in the asylum cases. This choice reflects the way social rights are dealt with in the EU free movement legal framework, namely as a tool to give effect to a fundamental freedom and linked to the integration of the EU citizen within the EU project.

3.   The CG case and the CJEU’s U-turn on EU fundamental rights

The C.G. case[30] takes place within the above sketched legal context within which some economically inactive migrant EU citizens are situated outside the scope of the equal treatment provisions in Directive 2004/38 because they are not or no longer categorised as legally resident. Seen in this light, equal treatment is not enough to protect vulnerable and destitute migrant EU citizens, such as the applicant in the C.G. case, a Dutch Croatian national and mother of two who lived in a women’s refuge in the UK. The applicant had a national residence status issued under more favourable conditions than those of Article 7 Directive 2004/38 as she did not need to meet the sufficient resources condition. However, the national residence status did not give access to social assistance. The applicant claimed that such exclusion was contrary to Article 18 TFEU since UK nationals in her situation were guaranteed those benefits.

The Court of Justice ruled that the applicant was indeed a person lacking sufficient resources who could be categorised as an unreasonable burden from the perspective of Article 24 of Directive 2004/38 and therefore not entitled to equal treatment.[31] Yet, the fact that the UK issued her a residence title in recognition of her exercise of free movement rights as an EU citizen – although that residence did not meet the conditions of Directive 2004/38 – meant that she was within the scope of EU law and could rely on EU fundamental rights. The Court acknowledged the vulnerability of the applicant and of her children and ruled that ‘the national authorities empowered to grant social assistance can refuse her claim only after having ascertained that the refusal does not expose that citizen, and the children for which he or she is responsible, to an actual and current risk of violation of their fundamental rights, as enshrined in Articles 1, 7 and 24 of the Charter (human dignity, respect for family life and the best interest of the child)’.[32] Moreover, the Court goes to state that even if Ms CG is refused social assistance, the host state must ensure that she and her children can live in dignified conditions.

Although the ruling continues the restrictive line of jurisprudence on social rights and Directive 2004/38,[33] it has generally been welcomed for opening the question of social rights to fundamental rights’ scrutiny. Herwig Verschueren has argued that the message of CG is that once a right to reside is granted to a Union citizen, the host state needs to ensure that the Union citizen does not end up in a situation that violates human dignity.[34] This interpretation is coherent with the Court’s older jurisprudence in which it had ruled that economically inactive EU citizens legally resident in a host EU state based on national immigration law or international law could rely on Article 18 TFEU and claim equal treatment with nationals in the sphere of social benefits.[35] However, the Court does not revert to this earlier line of jurisprudence that relies on Article 18 TFEU. Instead, it opts for fundamental rights and the idea of living in dignified circumstances as creating some form of positive obligations for the host state.

The ruling has been also criticised since it does not give any guidance on the type or level of assistance the host state should give to such an EU citizen. Nor does it explain the difference between positive obligations towards a destitute EU citizen and equal treatment as a right of EU citizenship. The Court rejected the idea that an EU citizen in CG’s situation should be able to rely on Article 24 of the Directive and claim social assistance because this interpretation would be contrary to the aim of preventing abuse of the welfare system. In previous work I questioned the reach of EU fundamental rights and interpreted them as an exceptional source of social rights for destitute EU citizens.[36] The Court’s reliance on EU fundamental rights to justify access to social benefits is comparable to the Ruiz Zambrano jurisprudence where the Court relies on EU fundamental rights to justify a right to reside for TCN family members of static EU citizens. In both situations, EU fundamental rights are called in to offset the legal status quo: concerning static EU citizens, fundamental rights justify abandoning the purely internal rule, which underpins the functioning of the EU legal order; concerning destitute EU citizens, fundamental rights override the conditionality attached to the right to free movement. In both cases, the scope of EU law is expanded without abandoning its rationale and general principles. If we take the trajectory of the Ruiz Zambrano jurisprudence as yardstick, clearly it has had a major impact in a few EU states that traditionally had issues with giving up sovereignty over the family reunification of their own nationals towards the EU level.[37] The CJEU has had to come back time and time again to its initial stance to explain the circumstances in which the Ruiz Zambrano right to reside can be effectuated. On this specific issue, the Court’s jurisprudence resembles a micro-management of which personal circumstances are relevant for abandoning the purely internal rule in favour of giving effect to EU citizenship.

Long-term we may witness similar developments in respect of human dignity and social rights with the Court being asked to explain what living in dignified conditions means in specific circumstances. Ultimately, the proof of the pudding is in the eating and the manner in which national courts understand to engage with the C.G. ruling will be highly relevant for clarifying the role of EU fundamental rights for the social claims of migrant EU citizens. There are encouraging developments in the UK, where the CG ruling was relied upon in a similar case involving a Romanian mother, victim of domestic violence who was housed in a shelter run by a charity and who was refused basic benefits. The applicant was destitute, and her only income was child benefit which was insufficient to cover her and her child’s basic needs.[38] The UK Court of Appeal ruled that, in line with the CJEU ruling, national authorities must perform an individual assessment of the applicant’s circumstances; the existence of a framework capable of providing adequate support was not judged sufficient to discharge state obligations under the Charter.[39] One of the interesting aspects of the case is the argument of the UK government that Article 1 EU Charter does not create greater rights than Article 3 ECHR, which corresponds to Article 4 EU Charter, namely not to be subjected to inhuman and degrading treatment. The UK court ruled that Article 1 EU Charter is free standing and cannot be subordinated to Article 4 EU Charter.[40] The test under Article 1 EU Charter is that of ‘living in dignified conditions’. It requires individual assessment and must include the elements found relevant by the CJEU in CG, namely the availability of means and resources to meet needs, the degree of isolation and the degree of dependency of children to decide if there is an actual risk of violation of fundamental rights. Mel Cousins argues that despite the importance of the case, questions remain concerning its practical application by the administration and the assessment that the new test requires.[41]

At the EU level, relevant questions remain, too: how should we approach EU fundamental rights as a justification for social rights for migrant EU citizens? Are they an alternative or a complementary legal source? Do they strengthen the social dimension of EU citizenship? If so, how since they do not seem to legally enlarge the scope of equal treatment which remains open to those who are legally resident in line with the directive. To find answers and to explore the link between social rights and human dignity, I turn next to human rights law.

4.   Social rights and human dignity in ECHR case law

The above sections have shown that in EU law EU citizens’ access to the welfare state and to social rights is termed in the language of equal treatment. The C.G. case introduces human dignity in the toolkit of the CJEU to adjudicate on social claims by EU citizens, which creates a bridge to European human rights law, and to the ECHR in particular. The ECHR serves as inspiration for the EU Charter and, where provisions are similar, as minimum standard below which the interpretation of EU fundamental rights cannot fall. This section examines how human dignity informs the interpretation of migrants’ social claims based on the ECHR. Although the ECHR does not contain express provisions on social or economic rights, the European Court of Human Rights (ECtHR) has interpreted several provisions as relevant for such rights, while maintaining that the main scope of the Convention is the protection of civil and political rights. The ECtHR jurisprudence on social rights has been criticised, on the one hand, for overreaching because of the introduction of positive state obligations and on the other hand, for lacking consistency and for failing to go far enough to secure the realisation of social rights.[42]

Social rights for non-nationals have been addressed by the ECtHR in relation to Article 14 ECHR (non-discrimination) since some forms of social security are considered ‘possessions’ within the scope of Article 1 of Protocol 1 ECHR (the right to property) or within the scope of Article 8 ECHR (the right to family and private life) when social benefits help the family unity or concern children.[43] The underlying rationale for this jurisprudence is that where states decide to provide social benefits, they should do so in a manner compliant with Article 14 ECHR.[44] The ECtHR recognises a large margin of appreciation for state parties because they are considered better placed to appreciate what is in the public interest on social or economic grounds.[45] The result is that state policies and choices to exclude migrants from the enjoyment of social rights will be respected as long as they are not manifestly unreasonable. The ground of discrimination will also play a role in how large a margin is recognised: nationality will require more weighty justifications, especially where social security schemes exclude all non-nationals, as opposed to immigration status. Concerning the latter ground for discrimination, Slingenberg argues that in cases where there is an element of individual choice as to immigration status, state parties have more room to exclude than in the case of forced migrants such as refugees.[46] The ECtHR has ruled that:

‘a State may have legitimate reasons for curtailing the use of resource‑hungry public services – such as welfare programmes, public benefits and health care – by short‑term and illegal immigrants, who, as a rule, do not contribute to their funding. It may also, in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory. For instance, the preferential treatment of nationals of Member States of the European Union […] may be said to be based on an objective and reasonable justification, because the Union forms a special legal order, which has, moreover, established its own citizenship’.[47]

If we are to apply the above reasoning to differences in treatment between EU citizens based on their contribution to welfare states, the distinctions and exclusions operated by Directive 2004/38 in respect of economically inactive EU citizens who are/can become unreasonable burdens seem in line with the ECtHR’s interpretation. We can conclude that when social rights are approached as an issue of non-discrimination linked to existing systems of social protection and their rules of attribution, the ECHR jurisprudence does not provide arguments for a more expansive interpretation of the social entitlements of economically inactive EU citizens.

However, the ECtHR has also addressed social rights for non-nationals as a question of positive state obligations towards destitute persons within their jurisdiction. It is in this second context that human dignity and vulnerability become parameters for assessing non-nationals’ exclusion from social benefits under Article 3 ECHR which prevents torture, inhuman and degrading treatment.[48] Galina Cornelisse notes that in legal discourse human dignity is closely related to the prohibition of torture, inhuman and degrading treatment which is an absolute right under Article 3 ECHR.[49] When human dignity enters the legal discourse of other, non-absolute rights, those rights can be limited, as illustrated by the ECtHR jurisprudence on Article 8 and 14 ECHR. Whether a certain treatment violates human dignity will depend on the extent and the degree of the suffering but also by whom it is inflicted and in what circumstances the suffering occurs.

In the ECHR context, human dignity was traditionally used to challenge immigration policies that detain, return, or remove migrants. The M.S.S. v Belgium and Greece case is considered a turning point because the ECtHR decided that the living conditions of migrants outside detention can raise an issue under Article 3 ECHR.[50] Scholars agree that the position of the ECtHR is that ‘exposure to certain material conditions can be incompatible with human dignity’ because of ‘the humiliation and desperation that accompanies the inability of the person to attend to their basic bodily needs’.[51] Lieneke Slingenberg concludes that the ‘situation of persons unable to meet their basic needs of food, hygiene and shelter for significant period coupled with the lack of any likelihood of this situation improving reaches the minimum threshold of severity of treatment to engage state responsibility under Article 3 ECHR’.[52] The bar is set rather high in terms of the severity of the treatment, to which we can add another limiting factor, namely that an approach to social rights based on freedom from inhuman or degrading treatment requires only a minimum standard of living.[53] States may have positive obligations towards such persons but they are not owed similar social obligations as own nationals.

The literature is divided on what brought about the ruling of violation of Article 3 ECHR. Some authors view as decisive the fact that Greece had undertaken obligations towards the reception conditions of asylum seekers and transposed them into national law. The gravity of the living conditions alone is judged insufficient to lead to a violation finding.[54] Another relevant factor is the applicant’s (lack of) responsibility for their living situation, which is enmeshed with the question of vulnerability. Part of the Court’s reasoning for finding a violation of Article 3 ECHR concerning the living conditions of the applicant was that asylum seekers are members of a ‘particularly underprivileged and vulnerable population group in need of special protection’.[55] Vulnerability is understood ‘in terms of dependency on the relationship with the state’ and linked to an understanding of human dignity as a premise for an individual’s autonomy and self-realization. Slingenberg proposes to understand the ECtHR’s jurisprudence on the social rights of destitute migrants as establishing a ‘right not to be dominated’.[56] This explains why it is not the severity of the situation in which an applicant find herself that predicts the success of a social benefit claim but rather the level of vulnerability of the applicant and the impossibility or inability to leave a difficult situation coupled with the existence of state obligations towards such applicants.[57] Applicants who failed to apply for benefits, even if that would have implied a restriction of their liberty, to lodge appeals or to cooperate in return procedures were not successful in their claims. The facts of the C.G. case contain elements deemed relevant by the ECtHR when interpreting human dignity in the context of material conditions under Article 3 ECHR: the UK had accepted responsibility for the applicant when issuing her with a residence permit and, as a victim of domestic violence, the applicant was part of a special group of vulnerable persons for whom states have extra responsibilities.

The use of the concept of vulnerability to justify the extension of positive state obligation in relations to social rights is not without criticism. Alexandra Timmer et al. describe references to vulnerability as ‘double-edged, with vulnerable immigrants possibly – but not at all necessarily – being the beneficiaries’.[58] The authors worry that ‘granting social rights based on vulnerability might make it less necessary to accept certain forms of social or quasi-legal membership as relevant for acquiring rights’[59], especially where migrants do not reside legally. This last aspect is relevant for how the CJEU will further interpret human dignity for migrant EU citizens considering the exclusion of those who do not reside legally from equal treatment under Directive 2004/38. Ultimately, the legal exclusion from social rights which aims to safeguard the welfare state creates vulnerability and has coercive functions which impact the autonomy of those affected and their dignity.

To sum up, the analysis of ECHR case law on social rights for migrants shows that like EU law, human rights law does not entail an absolute entitlement to social rights for migrants. States are allowed to differentiate between the social entitlements of citizens and non-citizens and between groups of migrants. When approached as a matter of dignified living conditions, ECHR law imposes a minimum of positive state obligations. These obligations will be activated when the treatment reaches a certain threshold, the state has accepted obligations towards the persons in question and these persons are perceived as vulnerable. The ECtHR case law concerns destitute asylum seekers who can be described as a particular group of applicants, an aspect which resembles the use of human dignity as per Article 1 EU Charter by the CJEU in its jurisprudence on reception conditions in EU asylum law. The above-mentioned elements suggest that the scope for human dignity as source of social rights is confined to specific circumstances and vulnerable applicants, and with limited relevance for most migrant EU citizens.

5.   Limitations to human dignity as justification for social rights

As a reminder, the article set out to explore what human dignity adds to EU citizenship law. The previous sections have shown that in neither EU citizenship law nor ECHR law, social rights for migrants are absolute rights. Both models discussed, although relying on different notions and principles for justifying social rights, accept limitations linked to the idea that states can exclude certain categories of migrants from the welfare state. To understand the limitations of human dignity in recognising social rights for migrants, this section places the question of limitations in the wider context of social rights as human rights. It discusses different theories concerning the role of human dignity in human rights law – foundational and absolute or pragmatic – and the question of what dignified living conditions means in practice.

5.1. Zooming out on human dignity and its role

The foundational and absolute view of human dignity is linked to the development of the international system of human rights protection after World War II and the transformation of human dignity into a legal right that must be protected and respected in national constitutional law and in human rights instruments. Human dignity is described as ‘the foundation of international human rights law which reaffirms, again and again, the inherent worth and equal dignity of all members of the human family’.[60] Besides being a legally sanctioned right, dignity functions to support other rights linked to the right to live a dignified existence, that is, to live in ways that reflect self-respect. Courts have found human dignity relevant when adjudicating on the right to housing, health care, a reasonable standard of living, and a clean environment.[61]

Similarly, Hollenbach argues that ‘human rights norms support a social or relational understanding of the human person’ whereby human rights and human solidarity are reciprocally related to each other.[62] The argument is based on a reading of the Universal Declaration of Human Rights (UDHR) as emphasizing the ‘importance of human interdependence and solidarity for the protection of human dignity’.[63] The practical consequence of this normative stance is that ‘the advancement of human dignity and the protection of human rights require inter-human solidarity and supportive social relationships.’[64] Social rights are necessary for the realization of human dignity, which implies both ‘the right to have one’s material needs met on at least a basic level and the right to have social supports that will make this possible.’[65] The legal definition of the basic level and the (positive) obligations that states have in relation to social rights are less straightforward. This is linked to a wider debate on the inclusion of socio-economic rights into human rights conventions that goes further than the extension of social rights to non-citizens. Main questions concern the justiciability and effective realization of social rights, and the view that socio-economic rights are inferior to civil and political ones.[66] Similar aspects are relevant when interpreting the social provisions of the EU Charter.

Several tensions animate debates about social rights as human rights. First, despite their universal scope, international treaties allow state parties to differentiate based on citizenship. Second, the lack of a specialised treaty on the socio-economic rights of non-nationals leads to the fragmentation of legal standards between international treaties on socio-economic rights, such as the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) and treaties relevant for non-nationals, such as the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW).[67] While such treaties stipulate that the rights they enshrine derive from the inherent dignity of the human person, exceptions to their enjoyment are allowed based on citizenship (ICESCR) and legal status (ICRMW). The relationship between equal treatment mandated by human dignity as universal value and the exceptions allowed under international law is described by Lougarre as ambiguous and as creating space for states to limit the socio-economic rights recognised in international law to non-nationals.[68] Furthermore, the legal credibility of the ICESCR is not helped when interpreted by monitoring bodies as containing a minimum core of socio-economic rights but without a clear definition of what the minimum is or whether states can derogate from the convention if they ensure minimum standards.[69]

The lack of a clear definition of human dignity in human rights law and adjudication has led to a more pragmatic view of human dignity, which is informed by proportionality. Some authors argue in favour of seeing human dignity not as a right, but as an ‘overarching concept’ that is relevant for the interpretation of several rights. Simpson identifies the following rights as relevant: ‘the prohibition of inhuman treatment, the protection of individual autonomy, the protection of group identity or culture and the creation of conditions for the satisfaction of essential needs.’[70] While this view takes a practical and more pragmatic approach since it builds on how human dignity is used in various jurisdictions, it recognises that there is an agreement on a minimum core understanding of human dignity.[71] This understanding remains abstract and general, in the sense that there is agreement ‘that each human being possesses an intrinsic worth that should be respected, that some forms of conduct are inconsistent with respect for this intrinsic worth, and that the state exists for the individual not vice versa’ but without going into the practical realisation of the above elements.[72]

Another set of authors propose to understand human dignity as a ‘political notion placing constrains on state institutions’ with an expressive function.[73] This argument is empirically informed by how human dignity is used in different national legal contexts by legislators and courts, which leads to a ‘a gap between the mutual obligation to assist those in need, built upon their dignity, and the idea of welfare as a redistributive enterprise involving political choices.’[74] Human dignity as foundational and absolute value that justifies individual social rights cannot close this gap. In practice, courts decide cases where the failure to provide social rights infringes human dignity by relying on the principle of proportionality since conditionality in the enjoyment of social rights is not considered incompatible with human dignity.[75] In this vein, the role Civitarese Matteucci and Repetto see for human dignity is as ‘element of a more complex political philosophy grounded on equality and social justice.’[76] The advantage of this position is that it does away with discussions about the absoluteness of human dignity that requires the provision of social rights and reorients the debate towards what are acceptable limits to social rights provision. In this context, the authors argue that human dignity can help decide what state actions or omissions are disproportionate and fail to pursue an ideal of reciprocity.

What is at stake in the above discussions on the role of human dignity in relation to social rights –foundational and absolute versus pragmatic – is relevant for the question of justification for social rights. The pragmatic view of human dignity exposed by Civitarese and Matteuci relies on equality as justification for individual social rights.[77] From an EU citizenship law perspective which relies on equal treatment, this seems equally problematic. At national, regional, and international levels, states are allowed to derogate from equal treatment and differentiate between nationals and non-nationals or between those legally resident and those not.[78] This view of human dignity is built on the idea of human dignity understood as meaning that there cannot be any intrinsic difference of social status between humans. Certain state acts of denial of social rights are a violation of dignity as status, even if there are no harmful consequences.

In the EU context, the relationship between equality and human dignity is far from straightforward. EU states can deny social rights and equal treatment if EU migrants do not reside legally in line with the conditions of Directive 2004/38. The C.G. case seems to bring equality and dignity closer to each other but without creating a perfect overlap. For the CJEU, it was precisely the gravity of the consequences of denying social assistance that brought human dignity as autonomous legal concept into the picture. While I agree that human dignity works to ‘support social rights claims’, in my view the idea from human rights law that equality does a better job at justifying social rights is not supported, at least, by EU free movement law and its interpretation. What these scholarly debates illustrate is the difficulty of reconciling the absolute nature of human dignity understood as foundational value of human rights with the conditionality and relativity that characterise social rights, even when conceived of as human rights.

To sum up, despite different theoretical views on the role of human dignity in human rights law – foundational value, human right or overarching concept that guides the interpretation of other rights – there is agreement that human dignity requires a minimum of social rights which establishes positive state obligations. Yet, there is no clarity as to what states’ minimum core obligations in respect of a dignified existence are stemming from the relative and context dependent character of socio-economic rights. The fit between human dignity, equality and social rights is imperfect in both EU citizenship and human rights law.

5.2.  Who decides what ‘dignified existence’ means?

Irrespective of the theoretical approach taken to human dignity, what a dignified existence means and what it requires in terms of state obligations remains unclear. The problem identified is one of indeterminacy, which is also visible in the reasoning of the CJEU in the C.G. case: the CJEU identifies a minimum – dignified living conditions – but without defining them. This is not simply a question of definition, but also of competences since courts are criticised when they delineate the scope of social solidarity. This is the case irrespective of the level of jurisdiction and what is at stake – solidarity between nationals or between nationals and non-nationals.

The argument is that courts lack the political currency to do so since they are not democratically elected; social policy is the privilege of democratically elected bodies. It is thus instructive to read Ingrid Leijten’s analysis of how the German constitutional court has been successful in developing a jurisprudence that recognises the existence of a ‘subsistence minimum’ in the German Basic law without being accused of overstepping its role.[79] This subsistence minimum is understood to involve the means for living a life in accordance with human dignity. Interesting for the EU discussion, is that the German constitutional court reads into the right to a subsistence minimum a ‘form of minimum core protection’ available to German citizens and non-nationals alike but, according to Leijten, ‘without falling prey to the risk of absolute definition of minimum core guarantees.’[80] The author describes the German notion of a ‘subsistence minimum’ as close to the minimum core obligation notion used in the ICESR since it ‘does not imply a right to material prerequisites and means of subsistence generally and only applies to those things necessary for leading a life consistent with dignity and does not include a right to the full range of possibilities of participating in social, cultural, and political life, but only to an “essential” level thereof’.[81]

The takeaway lesson seems to be that indeterminacy concerning the minimum guarantees the justiciability of social rights. Leijten is positive about the use of an absolute yet abstract minimum guarantee because it allows the government the necessary leeway in relation to social policy and budgetary constraints, but without compromising on the robustness of a legally sanctioned right. Despite the imprecise definition of the minimum, the government is under an obligation to review if it is still sufficient, and to revise it if the need is present. Nonetheless, the author is cautious about the German approach being transposable to other courts, such as the ECHR, for constitutional and democratic reasons. First, human dignity can be read as involving a minimum social guarantee and positive social obligations on behalf of the German state because of the existence of the ‘social state principle’ in German constitutional law.[82] Such a constitutional principle is not present in all jurisdictions, although there are valid arguments to derive it from the foundational nature of human dignity. For the CJEU, this may be less of an issue in light of Article 3 TEU which talks about the EU establishing a ‘highly competitive social market economy […] combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child’.

Second, the democratic argument is linked to the fact that the ECtHR ‘cannot enter into as direct of a “dialogue” with the legislature as their national counterparts’[83] and demand that the legislature revise the content of the core social minimum. Two legal routes are sketched for the ECtHR: first, to supplement its review of states acts or omissions as arbitrary, reasonable, or disproportionate with qualitative review-guiding rules that leave enough room to national actors. Second, to rely on equal treatment to and ask states to justify why non-nationals are treated differently when it comes to the provision of minimum social benefits.[84] Notwithstanding the above suggestions, Leijten argues that considering the ECtHR’s special position, minimum social protection maybe the best it can afford without overstepping the constitutional and democratic limits identified previously.[85]

The democratic argument discussed above is significant for the CJEU, too because one of the criticisms expressed in relation to its EU citizenship jurisprudence concerns precisely the issue of intervening in the redistribution of national welfare while lacking the democratic credentials to do so.[86] In EU citizenship law, the redistribution of social resources via equal treatment remains the appanage of EU citizens who reside legally in line with Directive 2004/38 or who are economically active. The C.G. case does not change this policy choice. For the time being, human dignity as an EU fundamental right does not translate into a judicial intervention to define the content of minimum social protection for vulnerable EU citizens. Ultimately, the democratic argument seems equally relevant for understanding why the CJEU leaves it to the national court to appraise what a dignified existence amounts to for the applicant in C.G. and her children.

6.   Conclusions

Migrants’ entitlement and access to social rights is a topic that generates many discussions, especially in a context of shrinking welfare states. Who should be entitled to equal treatment, who should make that choice or what level of resource redistribution is acceptable or necessary are questions that inform such debates. Migrant EU citizens can rely on equal treatment but as the article has discussed this right is fragmented and stratified. The right to live in dignified conditions derived from Article 1 EU Charter is a new addition to the legal toolkit of the CJEU when adjudicating upon social claims by EU citizens. The question the article has sought to answer is what this new tool adds to the current design of the right to equal treatment for EU citizens. Are fundamental rights a corrective, an alternative or an interpretative tool for equal treatment concerning social rights? This question is pertinent since for migrant EU citizens who lack resources and who make social claims on their host states, equal treatment can be out of reach and does not guarantee access to social benefits. The objective of protecting national welfare states has gained prominence in CJEU jurisprudence which emphasizes the right to exclude from social rights. For now, human dignity seems to play a role as alternative source of rights for those migrant EU citizens who reside legally in another EU state, despite not meeting the conditions of EU law, and who are vulnerable. This is an exceptional route to social benefits, yet it creates obligations for the host state. As such, the host state must ensure that despite the refusal of benefits the person can live in dignified conditions.

To get a better understanding of what living in dignified conditions means, the article has explored the use of human dignity by the CJEU and the ECHR. The CJEU has applied human dignity as per Article 1 EU Charter to interpret state obligations towards asylum seekers who are entitled to material conditions under EU law. The minimum in this context requires being able to meet basic needs of ‘bed, bath and bread’. However, EU citizens are not in the same situation as asylum seekers and EU law stipulates that host EU states have obligations towards them, if they are legally resident. Otherwise, they can fall back on their own states. The ECHR jurisprudence on social rights for non-nationals seemed a suitable route to investigate what human dignity may mean for social rights. The gist of this jurisprudence is that state obligations under Article 3 ECHR will exist if the living conditions of the migrant reach a certain level of severity, if states have obligations towards such migrants, and if the migrant can be seen as vulnerable. These cumulative conditions set a high bar for social rights claims by destitute EU citizens who, following the C.G. ruling, must nonetheless be legally resident.

Human dignity appears as an exceptional and alternative route to minimum social benefits for migrant EU citizens, which becomes relevant once equal treatment under Directive 2004/38 has been taken out of the equation. The appeal of a legally recognised right to live in dignified conditions goes much further than destitute EU citizens and asylum seekers. EU workers and the economically active enjoy equal treatment with nationals of the host state, which seems the most extensive version of entitlement to social rights that migrants can have. It goes much further than equal treatment or human dignity in the context of the ECHR. Considering the many instances in which such workers work and live in EU states in terrible conditions despite a legal entitlement to equal treatment, a right to live in dignified conditions operating alongside equal treatment may offer a legal route to improve their situation, too. If neither equal treatment, nor human dignity can offer protection to everyone every time, viewing them as complementary may prove a more legally successful way to realise social rights for migrants.

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European Papers, Vol. 10, 2025, No 1, pp. 137-162
ISSN 2499-8249 - doi: 10.15166/2499-8249/828

* Assistant Professor, Faculty of Law, Radboud University, sandra.mantu@ru.nl.