Yeshtla v the Netherlands (application no.37115/11): Discriminatory Impacts of State Social Policy on Vulnerable Individuals

Nensi Sinanaj

University of Milan

In February 2019, the European Court of Human Rights (ECtHR) unanimously declared inadmissible the application in the case of Yeshtla v. the Netherlands. This case deals with issues of social housing and irregular residence. It also touches upon essential questions relating to possible discriminatory effects of the ECtHR decisions in matters of state social policy, such as whether the Court has been successful in using fundamental norms as tools to support those who are in vulnerable positions. This blog will provide some insights on the decision by situating it in the broader context of ECtHR anti-discrimination jurisprudence.

Case Facts

Yeshtla v. The Netherlands deals with the withdrawal of social housing benefits from the applicant. The applicant, Ms. Emabet Yeshtla, an HIV positive woman, was living with her son, who was an unlawful resident. The applicant acquired Dutch nationality and was of Ethiopian origin. By applying for asylum, her son Y moved to the Netherlands in 2002 at the age of 16 to join his mother. Y applied various times for residence permits but his attempts were not successful.

Ms. Yeshtla applied for housing benefits in 2007. In July 2007, the Tax Department asked her to return the housing benefits that she had already received. This withdrawal of benefits allegedly violated the “linkage principle”, according to which there must be a direct link between lawful residence and entitlement to benefits. This principle is meant to ensure that those illegally residing in the Netherlands cannot enjoy state benefits. Since the applicant was co-resident of an unlawful person, she was no longer entitled to the benefits and would have to return those already received.

In 2009, Y was granted a “no-fault” residence permit for one year (from March 2009 until March 2010), given to foreigners for whom it is impossible to leave the state. However, independent of Y’s residence permit, in 2009 the Tax Department repeated its request for the payment to Ms. Yeshtla for the housing benefits that she possessed during 2006 and 2007. The applicant filed a case in the Regional Court (which rejected her request) and to the Administrative Jurisdiction Division of the Council of State. The Council of State explained 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. The facts of the case, which included that the applicant was diagnosed HIV-positive and Y was taking care of her, were not considered to be so exceptional in order to justify the “linkage principle”.

The Reasoning of the Court

In holding the application inadmissible, the Court did not deny that there was family life between the applicant and Y as understood in Article 8 of the ECHR. The Court, however, ruled that there was no interference in family life caused by the withdrawal of the benefits.

Furthermore, the Court concentrated on whether there were exceptional circumstances which justified the applicant having access to the housing benefits even though she lives with a non-resident cohabitant. The ECtHR decided that there had been no discriminatory treatment between tenants who lived with lawful cohabitants and those who did not as the classification had a legitimate aim, objective and a reasonable justification. The Court held that the government followed the aim of preventing unlawful residents from indirectly having access to housing benefits. Furthermore, the Court ruled that the withdrawal of housing benefits passed a proportionality test in this specific case..

Discriminatory Effects of ECtHR Decisions in Matters of State Social Policy

The Court did not give due consideration to the fact that the ECHR contains a non-discrimination requirement. Article 14 states that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The question I ask is: How successful was ECtHR by using the anti-discrimination provision in this case? In order to answer this question, we must take a look at its case-law. In the case of Bah v. the United Kingdom (Application no.56328/07, European Court of Human Rights (Fourth Section), 27.09.2011)), the Court expressed that if a state provides benefits “it must do so in a way that it is compatible with Article 14 ECHR.” In this case, Ms Bah was denied access to priority treatment under the housing legislation based on the conditional immigration status of her son. The ECtHR did not find the decision of the Court arbitrary. The Court held that states could use categories to differentiate between different groups in need of benefits when it comes to access to “resource-hungry” sources (social housing benefits fall in this concept). In Belli and Arquier-Martinez v. Switzerland (Application no.65550/13, European Court of Human Rights, Grand Chamber decision, 11.03.2019) the Court ruled on the discontinuation of the special disability benefit to Ms Belli because she had moved away from Switzerland, with her mother, to Brazil. Ms Belli, due to her condition, had not been able to pay contributions to the scheme. On the other side, individuals who benefited from invalidity-insurance and had been able to pay contributions, could continue to derive these benefits also when residing abroad.

In Yeshtla v. the Netherlands (application no.37115/11, The European Court of Human Rights (third Section), 15.01.2019), the distinction between those living with lawful cohabitants and those living with illegally residing cohabitants was justified by the policy of the government. It appears that the Court emphasises the importance of the government’s policy instead of taking into consideration the socio-economic needs of the individual. Ms Yeshtla not only presented an uncertain economic situation but also was diagnosed as HIV positive and needed the assistance of her son.

The ECtHR often does not recognize an unequal treatment of vulnerable individuals based on the prohibition of discrimination. When testing the proportionality of a a measure, the Court has accepted the justifications of the governments and given the member states a wide margin of appreciation. In all of the cases highlighted in this post, the ECtHR failed to take into consideration the discriminatory economic impact of the measure on the individual. Article 14  should be used by the Court as one of the tools to support those who are in vulnerable positions. It is disappointing that  not only did the Court disregard the impact of the decision on the applicant, it also did not reflect on the possible discriminatory effects that the applicants could face by belonging to the group of vulnerable individuals.

Nensi Sinanaj is a student of the Master of Laws in Sustainable Development at the University of Milan.

Suggested Citation: Nensi Sinanaj, “Yeshtla v. the Netherlands (application no.37115/11): Discriminatory impacts of state social policy on vulnerable individuals.” IACL-IADC Blog (14 May 2020) https://blog-iacl-aidc.org/2020-posts/2020/5/14/yeshtla-v-the-netherlands-application-no3711511-discriminatory-impacts-of-state-social-policy-on-vulnerable-individuals