ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

88 THE INCLUSION OF “THE OTHER”:
THE PROTECTION OF THE SOCIAL
RIGHTS OF MIGRANTS IN NATIONAL
AND EUROPEAN COURTS
Welfare benefits provided to migrants are an essential
way to guarantee their fundamental rights enshrined
in national constitution and supranational Charters.
They are also a vital tool for their inclusion in European
society. However, social policies towards migrants have
been deeply affected by the financial crisis. The cuts to
welfare expenditure combined with the ever-increasing
influx of migrants coming to Europe has had a noticeable
impact on social cohesion and acceptance of
migrants, making the role of the courts in protecting
migrants social rights very crucial. The panel analyses
such a role by looking at different perspectives that
local and European courts assume: the use of the principle
of equality as an overall justification for welfare
entitlements, the concept of social citizenship in its
interaction with the exclusionary meaning of political
citizenship, the interaction between national and supranational
legal systems in migrants’ rights protection
and its effectiveness.
Participants Alessandra Serenella Albanese
Ulrike Lembke
María D. U. Fernández-Bermejo
Eva Hilbrink
Name of Chair Stefano Civitarese Matteucci
and Jeff King
Room UL9 210
Alessandra Serenella Albanese: The principle of
equality and its different functions in protecting
migrants’ social rights
The paper examines the European and Italian
court’s case law on the protection of migrants’ social
rights, regarded from the point of view of the application
of the principle of equality. The principle of equality
can play different roles in judicial reasoning. It not only
assumes the meaning of a pure non-discriminatory
principle, but it can also be used as the basis to assess
the reasonableness of the legislative measures
introducing different welfare regimes (on grounds of
nationality, duration of stay, type of permit of stay, etc.).
It can finally be related to dignity and to fundamental
human needs and regarded as “substantive equality”,
according to art. 3 § 2 of Italian Constitution. The
different facets of the principle are variously stressed
or combined in court’s decisions. How the equality
“tool” is used in legal reasoning, may produce different
consequences on the effectiveness of migrants’ social
rights protection and may indeed have a significant
impact on social cohesion.
Ulrike Lembke: Social citizenship and the inclusion
of ‘the other’: migrants’ benefits before
European and German courts
For some years, the ECJ has developed a social
dimension of Union citizenship counterbalancing a
sole market approach. But in its recent decisions on
national competences to refuse the granting of social
non-contributory benefits to economically inactive
Union citizens, the court put a sharp stop to the
ideas of social Union citizenship and social inclusion.
At the same time, German courts held that economically
inactive Union citizens are entitled to basic social
benefits under certain circumstances. These rulings
are owed to the fundamental right to minimum subsistence
following from human dignity as stated by
the Federal Constitutional Court‚ for the unemployed
and their families (2010) and for asylum seekers and
refugees (2013). The paper examines European and
German case law on migrants‚ benefits in the light of
concepts of social citizenship and approaches to the
social inclusion of migrants as the paradigmatic others
of national social security systems.
María Dolores Utrilla Fernández-Bermejo:
Migrants’ legal protection under the European
multilevel system of fundamental rights
The purpose of this contribution is to analyze the
legal regime of the protection of migrants in Europe
both under supranational law – namely the European
Convention on Human Rights and EU law – and national
law of the EU Member States. The stress will be on the
positive obligations deriving from national constitutional
law and translated primarily into rights to social protection
and into the delivery of social benefits (by public
administrations). Moreover, the interaction of such a
level of protection with supranational human rights law
will be scrutinized as to check the effectiveness of this
multi-layered system when projected over the figure
of migrants in Europe. The subsidiary role of safeguard
with which the European Convention is endowed as well
as the potential constraints for human rights arising
from EU internal market law will be critically assessed.
Eva Hilbrink: Immigration Control as an Obstacle
for Balancing in Strasbourg Legal Reasoning
Strasbourg balancing in Article 8 ECHR immigration-cases
has a reputation of being intransparent and
unpredictable. On the basis of an empirical analysis of
147 cases, this paper argues that the ECtHR follows a
consistent pattern of scrutiny: it consistently refrains
from scrutinising the merits or the relative importance
of ‘immigration-specific’ aspects. These are aspects
that only in the context of immigration may result in the
physical exclusion of a person from society, such as
irregular residence, severed family ties, or a lack of resources.
If national immigration-specific rules are applied
correctly and consistently, and if there is no good
excuse for non-compliance with these rules, the Court
concludes that denying residence does not violate
Concurring panels 131