Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

256 | PRACTITIONERS GUIDE No. 6
stressed that in both cases the migrant workers concerned were legally
resident. It is not clear if the European Court would apply the same
regime to undocumented migrants.
The European Court has found that the right to respect for family life
(Article 8 ECHR) covers maternity benefits 1057 and child benefits. 1058
In the case Okpisz v. Germany, the Court held that granting child benefits
to non-nationals who were in possession of a stable permit and
not to others constituted arbitrary discrimination under Article 14 ECHR
read together with Article 8. 1059
The Court also recognised as protected by the right to property the right
to be a beneficiary of an old age insurance system, which cannot, however,
be interpreted as entitling the person to a pension of a particular
amount. 1060 The protection of the right to property is triggered once an
individual has paid contributions to the pension scheme, and does not
envisage an abstract right to have a pension. 1061 However, the Court
has recognised that “the suspension of payment of a pension where
[. . .] the [beneficiary] is neither a [national] citizen nor living within
the [State]” 1062 does not constitute arbitrary deprivation of property as
it is considered to fall within the legitimate restrictions of Article 1.2 of
Protocol 1.
The Inter-American Court of Human Rights has ruled that it has competence
to adjudicate the progressive realisation by a State Party of the
right of social security, under Article 29 of the ACHR. 1063 It has furthermore
recognised that a State will violate the human rights of a migrant
worker, whether documented or not, “when it denies the right to a
pension to a migrant worker who has made the necessary contributions
and fulfilled all the conditions that were legally required of workers, or
when a worker resorts to the corresponding judicial body to claim his
rights and this body does not provide him with due judicial protection
or guarantees.” 1064 Both the Inter-American Court of Human Rights and
1057 Weller v. Hungary, ECtHR, Application No. 44399/05, Judgment of 31 March 2009.
1058 Okpisz v. Germany, ECtHR, Application No. 59140/00, Judgment of 25 October 2005.
1059 Ibid., para. 34.
1060 Müller v. Austria, ECommHR, Plenary, Application No. 5849/72, Admissibility Decision, 16 December
1974; X v. the Netherlands, ECommHR, Plenary, Application No. 4130/69, Admissibility
Decision, 20 July 1971; National Federation of Self-Employed v. United Kingdom, ECommHR, Plenary,
Application No. 7995/77, Admissibility Decision, 11 July 1978, para. 2; T. v. Sweden, ECommHR,
Plenary, Application No. 10671/83, Admissibility Decision, 4 March 1985; Stigson v. Sweden,
ECommHR, Application No. 12264/86, Admissibility Decision, 13 July 1988; Szrabjet and Clark v.
United Kingdom, ECommHR, Applications Nos. 27004/95 and 27011/95, 23 October 1997.
1061 See, fn. 1060.
1062 X. v. Federal Republic of Germany, ECommHR, Plenary, Application No. 6572/74, 4 March
1976.
1063 “Five Pensioners” v. Peru, IACtHR, Series C No. 98, Judgment of 28 February 2003, para. 147.
1064 Advisory Opinion on Undocumented Migrants, IACtHR, op. cit., fn. 33, para. 154.