Introduction
The European Social Model is founded on the premise that social protection constitutes a core component of human dignity, equality, and social inclusion. Within this framework, access to social security is not merely an economic entitlement but a fundamental social right closely linked to solidarity and integration.Footnote 1 Despite the sophistication of European legal instruments in this field, the position of refugees within this architecture remains structurally fragile.
The 1951 Convention Relating to the Status of Refugees,Footnote 2 widely regarded as the cornerstone of international refugee protection, has predominantly been interpreted through the lens of non-refoulement and procedural safeguards. Its social dimension, particularly the right to social security enshrined in Article 24, has received comparatively less sustained doctrinal attention, especially when contrasted with the extensive focus on non-refoulement and procedural guarantees.Footnote 3 This relative neglect becomes especially problematic where access to social security depends on transnational administrative mechanisms that are incompatible with the circumstances of forced migration. The article argues that refugee law contains a largely overlooked social dimension centred on Articles 24 and 25 of the Refugee Convention. Article 24 requires contracting states to accord refugees treatment as favourable as that accorded to their own nationals with respect to social security. Article 25 further obliges states to provide administrative assistance where refugees cannot obtain documents or certifications from the authorities of their country of origin. Although these provisions have received relatively limited scholarly attention compared with the Convention’s protection against refoulement, together they establish the legal basis for ensuring effective access to social rights.
This article advances three central claims. First, it argues that Articles 24 and 25 of the Convention Relating to the Status of Refugees should be interpreted, in light of their object and purpose and the principle of effectiveness, as giving rise to a duty of functional substitution, requiring host states to replace, where necessary, administrative assistance that refugees cannot safely obtain from their country of origin.Footnote 4 The concept of functional substitution, developed in this article, refers to the obligation of the host state to replace administrative functions that refugees cannot safely obtain from the authorities of their country of origin. Second, this obligation operates within a hierarchy of norms in which refugee protection, EU law, and fundamental rights may take precedence over conflicting procedural requirements contained in administrative arrangements of bilateral agreements on social security coordination.Footnote 5 Third, it suggests that ensuring effective access to social security in situations of forced migration requires a recalibration of coordination mechanisms, moving beyond assumptions of reciprocity and mutual trust where those assumptions no longer hold.Footnote 6
To substantiate these claims, the article draws on the Polish Belarusian context while situating the analysis within a broader regional framework encompassing Central and Eastern Europe. Poland has been a primary destination for Belarusian refugees, while similar structural challenges arise in Lithuania and Czechia and are capable of arising more generally wherever refugees cannot safely cooperate with the authorities of their country of origin.Footnote 7 Although the analysis focuses on Belarusian refugees, the Belarusian case serves as a case study through which a broader structural tension in European social security coordination can be examined.
Ultimately, the article contends that ensuring access to social security for refugees requires a shift from a coordination model based exclusively on cooperation between institutions towards a protection-sensitive approach grounded in effectiveness, flexibility, and functional substitution. Such a shift is not only required by international and European legal obligations but essential to preserving the normative foundations of the European Social Model: dignity, solidarity, and equality in the context of forced migration. The article contributes to the literature by reconceptualising Articles 24 and 25 of the Refugee Convention as the foundation for a doctrine of functional substitution in the field of transnational social security coordination.
The article proceeds as follows. Section I provides the context for the issues arising. Section II examines the human rights foundations of the Refugee Convention’s social dimension through the jurisprudence of the European Court of Human Rights (ECtHR) and the European Committee of Social Rights (ECSR), thereby supporting the first claim. Section III analyses the normative conflict between refugee protection and bilateral social security coordination, demonstrating the priority of refugee law, EU law, and fundamental rights over conflicting administrative arrangements, thus substantiating the second claim. Section IV develops the proposed doctrine of functional substitution as a protection-sensitive model of social security coordination, addressing the third claim. The conclusions (Section V) summarise the principal findings and broader implications.
I. The structural problem: refugee protection and social security coordination
In contemporary systems of social security coordination, the enjoyment of rights is frequently mediated through procedural frameworks that presuppose cooperation with the authorities of the country of origin.Footnote 8 These mechanisms, while designed to facilitate cross-border entitlements, are grounded in assumptions of reciprocity, bilateral cooperation, and institutional functionality. Such assumptions do not hold in situations of forced migration. Where cooperation is unavailable or unsafe, formally guaranteed rights risk becoming practically inaccessible.
Although Article 24 has often been characterised as programmatic or dependent on domestic implementation, it acquires a more robust normative character when interpreted in light of broader human rights principles. As the ECtHR has consistently emphasised, Convention rights must be ‘practical and effective’ rather than ‘theoretical or illusory’.Footnote 9 Administrative frameworks that systematically impede access to benefits may, in certain circumstances, undermine the effective enjoyment of protected rights.Footnote 10
These tensions are clearly illustrated by the situation of Belarusian nationals residing in Central and Eastern Europe under international protection. Following the post-2020 political repression in Belarus, increasing numbers of individuals sought refuge in neighbouring states, including Poland, Lithuania, and Czechia.Footnote 11 Although many have been granted refugee status or subsidiary protection and participate in domestic social security systems, they encounter persistent obstacles in accessing benefits such as old-age pensions, disability support, and unemployment assistance.
Crucially, these obstacles arise not from the absence of legal entitlement but from the procedural architecture through which those entitlements are realised. Bilateral social security agreements concluded with Belarus condition the recognition of insurance periods on confirmation by Belarusian institutions.Footnote 12 In practice, such cooperation is frequently refused, delayed, or instrumentalised. Requests for verification may remain unanswered, while administrative procedures may expose applicants to risks incompatible with their protection status, including concerns relating to confidentiality, data protection, and potential transnational repression.Footnote 13
This situation gives rise to a structural contradiction between two distinct legal logics. On the one hand, social security coordination is based on reciprocity, administrative cooperation, and mutual trust between states. On the other hand, refugee protection is premised on the recognition that such trust may be absent or fundamentally compromised. Where coordination mechanisms require engagement with a state from which protection is sought, they risk transforming formal rights into practical impossibilities.
II. The social dimension of the Refugee Convention: effectiveness, vulnerability, and Articles 24–25
Although the ECtHR has no jurisdiction to interpret Articles 24 and 25 of the Refugee ConventionFootnote 14 directly, its jurisprudence on vulnerability, effectiveness, and social protection provides important interpretative guidance concerning the practical implementation of refugees’ social rights. Likewise, the ECSR has developed principles regarding effective access to social protection that illuminate the social dimension of the Refugee Convention.Footnote 15
Both bodies have emphasised that access to basic social protection forms an integral part of human dignity and effective inclusion, particularly for individuals in situations of heightened vulnerability.Footnote 16 This approach is supported in the literature, which conceptualises migrant and refugee rights as embedded within a broader human rights framework in which socio-economic guarantees play a constitutive role.Footnote 17 Such a reading challenges restrictive interpretations of Article 24 as merely programmatic and instead supports an understanding grounded in effectiveness and substantive equality.
This section argues that, even in the absence of direct Refugee Convention jurisprudence, European human rights law establishes a coherent standard requiring not only formal entitlement but effective access to social benefits. Administrative frameworks should therefore be applied in a manner that considers the specific situation of refugees and does not result in their de facto exclusion from protection.
A. ECtHR jurisprudence: vulnerability, material deprivation, and systemic deficiencies
Neither the ECtHR nor the ECSR has developed a fully autonomous body of case law directly interpreting Articles 24 and 25 of the Refugee Convention. However, their jurisprudence provides a coherent and convergent framework for assessing access to social protection through the principles of effectiveness, vulnerability, and human dignity.
In MSS v Belgium and Greece, the Court linked inadequate material conditions for asylum seekers to violations of Article 3 of the European Convention on Human Rights (ECHR), underscoring the responsibility of host states to ensure minimum standards of subsistence.Footnote 18 While the case concerned asylum seekers rather than recognised refugees, its reasoning reflects a broader principle: situations of severe material deprivation may fall within the scope of Convention protection where they reach the threshold of inhuman or degrading treatment. Importantly, the Court identified systemic deficiencies in reception and administrative systems, thereby recognising that structural failures, rather than isolated decisions, may engage state responsibility. By shifting the focus from individual decisions to institutional deficiencies, the Court acknowledged that administrative structures themselves may generate rights violations where they systematically prevent access to basic living conditions.Footnote 19
This reasoning extends beyond reception conditions and is directly applicable to social security. Where entitlement to benefits exists in law but cannot be realised in practice owing to rigid procedural requirements, the resulting deprivation may resemble the structural deficiencies identified in MSS.Footnote 20 As noted in the literature, the Court’s approach increasingly links material conditions to broader questions of dignity and inclusion, thereby narrowing the divide between civil and socio-economic rights.Footnote 21 Similarly, in Tarakhel v Switzerland,Footnote 22 the Court highlighted the heightened vulnerability of persons seeking international protection and the corresponding obligation of states to adopt safeguards to their specific circumstances. Vulnerability thus operates as a corrective to formal equality, requiring differentiated treatment where uniform administrative procedures would undermine the effective enjoyment of rights.Footnote 23 This is particularly relevant where procedural requirements, such as obtaining documentation from the country of origin, cannot be fulfilled without risk.
Taken together, these strands of case law indicate that administrative frameworks cannot be applied in a purely formal or uniform manner where such an approach disregards the specific risks faced by refugees. Strict reliance on standardised verification procedures may therefore be incompatible with Convention standards where it exposes individuals to harm or renders access to essential benefits ineffective in practice.
The Court’s broader case law further clarifies the legal status of social security benefits within the Convention framework. In Gaygusuz v Austria,Footnote 24 it recognised that access to certain benefits falls within the scope of Convention protection and should comply with principles of non-discrimination. This approach was reinforced in Koua Poirrez v France,Footnote 25 where the exclusion of a non-national from disability benefits was found to violate Article 14 in conjunction with Article 1 of Protocol No 1. Moreover, in Stec and Others v United Kingdom,Footnote 26 the Court confirmed that social security entitlements may constitute ‘possessions’ under Article 1 of Protocol No 1, thereby recognising their status as legally protected interests.
Read in conjunction with the Court’s emphasis on vulnerability and effectiveness, this line of authority confirms that social security benefits, once recognised under domestic law, fall within the ambit of Convention protection and must be secured in a manner that is both non-discriminatory and practically effective.Footnote 27 Accordingly, barriers to access, whether substantive or procedural, need to be justified in light of fundamental rights guarantees and cannot result in the disproportionate exclusion of vulnerable groups. At the same time, the Court’s protection of social rights remains indirect, operating through existing Convention provisions rather than through an autonomous catalogue of socio-economic rights. This limitation nevertheless reinforces the need to scrutinise administrative arrangements that, while formally neutral, render access to social security ineffective in practice.
B. The ECSR: effectiveness and practical accessibility
The ECSR adopts a more explicit approach to the protection of social rights. In its interpretation of the European Social Charter,Footnote 28 the Committee has consistently emphasised that access to social security and social assistance must be guaranteed without discrimination and must be effective in practice.Footnote 29
In Defence for Children International (DCI) v Belgium,Footnote 30 the Committee affirmed that immigration status cannot be used to deny access to essential social rights where this would undermine human dignity. A similar approach can be observed in European Roma Rights Centre (ERRC) v Bulgaria,Footnote 31 where the Committee emphasised that systemic barriers affecting vulnerable groups may amount to violations of the Charter where they prevent effective access to basic social rights. Furthermore, in Conference of European Churches (CEC) v the Netherlands,Footnote 32 the Committee held that even persons in an irregular situation shall be granted access to basic forms of social assistance necessary to preserve human dignity, thereby reinforcing the principle that minimum social protection cannot be made conditional upon formal status requirements.
This line of case law establishes a clear principle: social rights must not only be recognised in law but also be practically accessible. States are consequently required to remove or adapt administrative barriers that disproportionately affect vulnerable individuals.Footnote 33 The academic literature similarly emphasises a substantive understanding of social rights grounded in dignity and effective inclusion. Virginia Mantouvalou argues that European human rights law supports a dignity-based conception of social rights, while Olivier De Schutter conceptualises the Charter as a ‘social constitution’ centred on the effective realisation of social protection.Footnote 34
Applied to the context of transnational social security coordination, this reasoning highlights a persistent gap between formal entitlement and effective access. Individuals may be legally entitled to benefits yet effectively excluded through procedural requirements that cannot be fulfilled in practice.Footnote 35 From this perspective, administrative arrangements that condition access to social security on cooperation with the country of origin risk producing indirect forms of exclusion. Where such cooperation is unsafe or unavailable, strict adherence to procedural requirements may undermine the effectiveness of social rights and conflict with the protective rationale of European social law.Footnote 36
C. Limits and challenges of the effectiveness approach
While the jurisprudence of the ECtHR and the ECSR strongly supports an effectiveness-based understanding of social rights, this approach is not without limitations. First, the protection of social rights within the Convention system remains indirect and contingent, relying on doctrinal extensions of civil and political rights rather than explicit recognition of socio-economic entitlements.Footnote 37 This may result in uneven and threshold-dependent protection, particularly under Article 3 ECHR, which is triggered only in situations of severe deprivation. Second, the ECSR, despite its more robust engagement with social rights, lacks direct enforcement mechanisms, meaning that its findings depend on political follow-up by states and may not always translate into concrete change at the domestic level.Footnote 38 Third, the requirement of ‘practical and effective’ access, while normatively compelling, raises questions of institutional competence and resource allocation, as courts and quasi-judicial bodies may be reluctant to impose obligations that entail significant administrative restructuring or financial costs.
These limitations reveal a deeper structural gap between the recognition of social rights and the administrative mechanisms through which those rights are realised. While the effectiveness principle provides a powerful interpretative framework, it does not by itself resolve situations in which access to social security depends on procedural conditions that refugees cannot safely fulfil. The central difficulty therefore lies not in the absence of rights but in the conditionality of their exercise. Where access to benefits is mediated through administrative cooperation with the country of origin, the effectiveness of social rights becomes dependent on assumptions that do not hold in situations of forced migration.Footnote 39
At the same time, contemporary migration governance increasingly reflects attempts by states to externalise or circumvent Convention obligations through jurisdictional and territorial strategies. As Seyla Benhabib observes, despite broader trends of deterritorialization, refugee protection remains deeply dependent upon territorial presence and sovereign control, placing significant strain on the post-war protection regime established by the 1951 Convention. This broader context further exposes the fragility of administrative models premised on continuing cooperation between refugees and their states of origin.Footnote 40
This systemic pressure points beyond interpretation and towards the need for institutional adaptation. More broadly, refugee law scholarship has increasingly highlighted the gap between the formal recognition of refugee rights and the practical mechanisms required to secure their effective implementation, particularly in the context of restrictive migration governance and uneven state cooperation.Footnote 41 Ensuring effective access to social security in the refugee context requires not only judicial recognition of rights but also the recalibration of coordination mechanisms themselves. In this context, Articles 24 and 25 of the Refugee Convention acquire particular significance as they seek to ensure that refugees are not excluded from social protection merely because they are unable to obtain documentation or administrative assistance from their country of origin.Footnote 42 The following section examines this tension more directly by analysing how bilateral social security agreements may transform formally recognised rights into practically inaccessible ones.
III. Normative conflict: refugee protection and social security coordination
Across Central and Eastern Europe, bilateral social security agreements (BSSAs) appear to offer a coherent and technically sophisticated framework for coordinating social protection across borders. States such as Poland, Lithuania, and Czechia operate structurally comparable contributory social insurance systems and have concluded agreements with Belarus reflecting standard principles of international social security law, including equal treatment, aggregation of insurance periods, and the pro rata calculation of benefits. At first glance, this architecture suggests that coordination should function effectively even in cross-border contexts involving third-country nationals.
Yet this apparent coherence conceals a deeper structural limitation. The BSSAs are built on assumptions of voluntary labour mobility, stable diplomatic relations, and effective administrative cooperation between contracting states.Footnote 43 Their operation depends not only on the existence of substantive rights but also on the capacity of institutions to verify and exchange information across borders. In situations of forced migration these assumptions collapse. Refugees, by definition, cannot safely engage with the authorities of their country of origin, nor can such cooperation be presumed to function in contexts characterised by political repression or systemic human rights violations.Footnote 44
This tension becomes particularly visible when considering the dual structure of bilateral coordination mechanisms. The BSSAs operate on two interconnected levels: the agreement, which establishes substantive rights and obligations; and administrative arrangements, which regulate verification procedures and institutional cooperation. The effectiveness of the system is thus contingent upon the interaction between these two layers, as the exercise of rights remains conditional upon procedural verification carried out through interstate cooperation. In practice, this means that formally recognised entitlements may depend on confirmation of employment or insurance periods by the authorities of the country of origin. For refugees, this procedural dependency creates a structural barrier. Administrative arrangements presuppose a form of cooperation that is either unavailable or unsafe, transforming coordination mechanisms into obstacles to the exercise of rights. The result is a ‘blind spot’ within bilateral social security law: individuals who are formally entitled to protection may be unable to access it owing to the conditions attached to its implementation. The difficulty lies not in the absence of rights but in the conditionality of their exercise.
This structural limitation reflects a broader normative tension within the European Social Model. While coordination mechanisms are grounded in principles of joint collaboration and administrative cooperation, refugee protection is premised on the recognition that such trust may be absent or fundamentally compromised. The central legal question is therefore one of normative priority: where obligations stemming from bilateral social security agreements conflict with obligations arising from international refugee law and European Union law, which norm prevails? This article addresses that question in three steps. It begins by situating the problem in a comparative context, demonstrating how bilateral social security coordination mechanisms operate across different legal systems and why their structural assumptions break down in situations of forced migration. It then examines the resulting normative conflict, focusing on the hierarchy of norms in international, European, and domestic legal orders. Finally, it turns to the implications of this conflict, showing how procedural design may render formally recognised rights ineffective in practice and thereby transform coordination mechanisms into instruments of exclusion.
A. When coordination meets protection: from normative hierarchy to administrative reality
The significance of these structural difficulties is further illustrated within a comparative regional context. Across Central and Eastern Europe, states receiving Belarusian refugees, including Poland, Lithuania, and Czechia, operate contributory social insurance systems that are not only structurally comparable but also deeply embedded in bilateral coordination frameworks. Several of these states have concluded bilateral agreements with Belarus reflecting standard principles of coordination, including aggregation and proportional calculation of benefits.Footnote 45 These principles also mirror the broader coordination architecture established within EU law under Regulations 883/2004 and 987/2009, which similarly rely upon institutional cooperation, information exchange, and mutual administrative assistance between competent authorities.
Nevertheless, this apparent coherence obscures a fundamental structural dependency. Coordination mechanisms are not self-executing; their operation depends on continuous administrative cooperation between competent institutions. Under Regulation 987/2009 in particular, competent institutions are required to exchange information and verify insurance periods through mutual administrative assistance procedures.Footnote 46 This dependency is formalised through implementing instruments requiring institutions to exchange information and verify insurance periods. For this reason, administrative cooperation is not ancillary but constitutive of the coordination system.
It is precisely at this point that the logic of coordination collides with the logic of refugee protection. In situations of forced migration, the foundational assumption of cooperation with the country of origin collapses. Refugees are, by definition, unable to rely on the authorities of that state, either because such contact would expose them to risk or because those authorities refuse to cooperate. In the Belarusian context, this concern is not merely theoretical. Available reports document widespread repression of political opponents, including instances of transnational pressure and intimidation, which raise legitimate concerns about the risks associated with any form of contact with state authorities.Footnote 47
At the same time, EU law introduces explicit constraints on such cooperation. Article 30 of Directive 2013/32/EU prohibits the disclosure of information to authorities of the country of origin where such disclosure could compromise the safety of the applicant or their family.Footnote 48 This transforms the issue from a practical limitation into a direct legal contradiction: administrative cooperation is required to realise social security rights, yet prohibited where it would endanger the individual.
From the perspective of refugee law, the conclusion appears relatively clear: coordination mechanisms need to be adapted or set aside where they undermine safety or render rights ineffective. Yet from the perspective of social security law, the situation is considerably more complex. If authorities refrain from contacting the institution of the country of origin, they are deprived of a reliable mechanism for verification. This produces a structural evidentiary gap. As the literature on EU social security coordination demonstrates, such structural gaps may result in situations where formally recognised rights cannot be effectively exercised, thereby exposing individuals to risks of exclusion and poverty.Footnote 49
From a more critical perspective, abandoning standard verification procedures may generate structural incentives for opportunistic behaviour. Social security benefits, particularly pensions and minimum income guarantee, carry clear financial value, and coordination systems are designed to prevent their undue duplication or misuse. Where foreign insurance periods can be recognised without confirmation from the competent authority, the system becomes more vulnerable to fraud and inconsistency.Footnote 50 Even if most applicants act in good faith, institutional design cannot rely on that assumption.
This concern underpins a strong counter-argument: the rigidity of coordination mechanisms is not a defect but a condition of their legitimacy. Interstate verification ensures consistency, limits fraud, and protects financial sustainability. From this perspective, introducing exceptions, even for compelling humanitarian reasons, risks undermining equal treatment and inviting broader claims for derogation.Footnote 51 Yet this reasoning reveals its limits. A system that prioritises formal verification to the point of excluding those unable to comply risks transforming coordination from a mechanism of protection into an instrument of exclusion. The requirement to engage with a state from which protection is sought creates a structural paradox at the heart of the system.
Hence, the dilemma is structural rather than incidental. Strict adherence preserves systemic integrity but may deny access to those formally entitled; relaxing the rules enhances access but introduces risks of inconsistency and abuse. This tension reflects a deeper conflict between coordination based on reciprocity and protection grounded in the absence of trust, and cannot be resolved within the existing framework alone. It instead requires resolution through the hierarchy of norms governing social security coordination and international protection.
B. Normative conflict and priority of norms: international protection versus administrative cooperation
The structural dilemma identified earlier translates into a normative conflict between different layers of legal obligation. The interaction between international refugee protection and bilateral administrative arrangements in social security reveals a conflict that operates simultaneously at three interconnected levels: international law, EU law, and the internal hierarchy of legal instruments within domestic systems.
At the level of international refugee and human rights law, the 1951 Refugee Convention imposes positive obligations on host states to ensure effective access to social security (Article 24) and to provide administrative assistance where refugees cannot rely on the authorities of their country of origin (Article 25). These obligations are reinforced by broader human rights instruments, including the ECHR and the European Social Charter.Footnote 52 From this perspective, any procedural rule that compels refugees to engage with a persecutory state undermines the object and purpose of refugee protection. As Hathaway emphasises, refugee rights are grounded primarily in treaty law and must be interpreted in light of their object and purpose so as to ensure their effectiveness, rather than through a purely formal or literal reading of legal obligations.Footnote 53 Suitably, procedural obligations embedded in bilateral coordination mechanisms cannot be applied in a manner that defeats these core protective guarantees.
On the other hand, bilateral social security agreements, often supplemented by administrative arrangements, create procedural obligations for host-state institutions to cooperate with the authorities of the refugee’s country of origin, including the verification of employment and insurance periods and the exchange of personal data.Footnote 54 This creates a question of normative priority: can obligations of administrative cooperation prevail where compliance would undermine obligations of protection arising under refugee law and EU law? From a doctrinal perspective, the answer ought to be negative. While bilateral agreements constitute binding international law, the administrative arrangements adopted for their implementation remain subordinate technical instruments and must be interpreted in light of the object and purpose of the agreements themselves, as well as consistently with overriding obligations relating to refugee protection and fundamental rights.Footnote 55
In situations of conflict, norms protecting human dignity and effective access to rights take precedence over procedural requirements of administrative cooperation. For refugees, compliance with verification procedures involving authorities of the country of origin may directly contradict the protective rationale of international refugee law, particularly where that state is associated with persecution, political repression, or systemic human rights violations.Footnote 56
At the level of EU law, this conclusion is further strengthened. The Charter of Fundamental Rights guarantees human dignity, non-discrimination, and access to social security. Directive 2013/32/EU explicitly prohibits the disclosure of information to the authorities of the country of origin where such disclosure could compromise safety. This introduces a direct legal prohibition that limits the operation of coordination mechanisms based on administrative cooperation. This prohibition reflects a broader principle within EU law: cooperation mechanisms cannot operate where their application would expose individuals to a real risk of fundamental rights violations. This logic is consistent with the case law of the Court of Justice of the European Union, which has held that the principle of mutual trust must be set aside where such a risk exists.Footnote 57 Applied in the context of social security coordination, this means that any bilateral mechanism requiring verification of insurance periods or exchange of personal data with a persecutory state is subject to strict legal limits. Where such cooperation would expose refugees to risk or undermine their protection status, EU law requires that these mechanisms be restricted or disapplied.
At the level of domestic legal systems, a further distinction has to be made between bilateral agreements and administrative arrangements. While bilateral agreements constitute binding international treaties, administrative arrangements are executive instruments of a subordinate character, designed to facilitate the technical implementation of those agreements rather than to create independent legal obligations. Under the Vienna Convention on the Law of Treaties, treaties must be interpreted in good faith in light of their object and purpose, a principle which equally limits the interpretation and application of subordinate implementing measures.Footnote 58 In systems such as Poland, this distinction is reflected in the constitutional hierarchy of sources of law and the procedure for concluding international agreements. Bilateral social security agreements are typically ratified with prior parliamentary consent, thereby forming part of the system of universally binding law and enjoying precedence over conflicting statutory provisions. By contrast, administrative arrangements are concluded at the executive level, without ratification, pursuant to the procedure laid down in the Act on International Agreements, and subsequently do not possess the same normative force.
A comparable distinction can be observed in other Central and Eastern European legal systems. In Lithuania, ratified international agreements form part of the domestic legal order and prevail over conflicting legislation, whereas implementing arrangements are treated as subordinate instruments of administrative cooperation. Similarly, in the Czech Republic, international treaties approved by parliament and ratified by the president take precedence over statutes, while administrative implementing instruments remain binding only at the inter-institutional level and cannot override higher-ranking norms. This broader comparative perspective confirms that, across the region, administrative arrangements operate within the framework of the underlying treaty and need to be interpreted in conformity with superior norms, including constitutional guarantees, EU law, and international human rights obligations.Footnote 59
Administrative arrangements cannot override higher-ranking norms, including constitutional guarantees, European Union law, and international protection obligations. Their role remains instrumental, limited to facilitating technical cooperation between institutions within the framework established by the underlying treaty. Consequently, where their application would require authorities to engage with or rely upon institutions of a persecutory state, they must be interpreted restrictively or, where necessary, set aside. From the perspective of the hierarchy of norms, this leads to a clear doctrinal conclusion: obligations arising from refugee protection, human rights law, and EU law prevail over conflicting procedural requirements of administrative cooperation. This tension also reveals the structural limits of bilateral cooperation in the external dimension of EU law. While such trust underpins cooperation between member states, it cannot be presumed in relations with third countries associated with persecution or systemic human rights violations. In this context, the prohibition on contact with the authorities of the country of origin operates as a concrete legal safeguard. It ensures that refugees are not placed at risk or required to substantiate their rights through interaction with institutions they are compelled to fear or distrust. Yet while the hierarchy of norms provides a clear doctrinal answer, it does not by itself resolve the practical consequences of this conflict within systems of social security coordination. The question remains how these normative conclusions translate into the actual enjoyment of social rights by refugees.
C. ‘Forgotten social dimension’ of refugee law
Against this background, it becomes apparent that the core difficulty lies not only in the existence of rights but in the conditions of their effective realisation. Bilateral social security agreements and their administrative arrangementsFootnote 60 are designed to coordinate social protection entitlements across borders. While these instruments aim to ensure continuity of benefits and facilitate mutual recognition of insurance periods, their procedural requirements can inadvertently undermine the social rights of refugees and other persons under international protection. Reliance on certification by the state of origin may create barriers that prevent effective access to benefits in the host state.Footnote 61 Under the framework of these agreements, institutions may recognise periods of insurance accrued in Belarus only if certified by the corresponding Belarusian authority. For refugees, however, contact with the authorities of the country of origin may be impossible or unsafe because of risks associated with persecution, surveillance, or political repression. Hence, the obstacle arises not from the absence of entitlement but from the procedural conditions attached to its recognition.Footnote 62
Strict adherence to administrative arrangements conflicts with the protective purpose of the 1951 Refugee Convention, particularly Articles 24 and 25, which require equal treatment in social security and the provision of administrative assistance without endangering the individual.Footnote 63 This exposes a structural contradiction: mechanisms intended to ensure reliability and reciprocity in ordinary coordination contexts may become exclusionary when applied in situations of forced migration. This distinction between formal entitlement and effective access has been recognised in the literature, which emphasises that rights may be guaranteed in law yet rendered ineffective in practice owing to procedural barriers.Footnote 64 As demonstrated in Section I, European human rights jurisprudence requires that rights be practical and effective and that administrative frameworks be adapted to the situation of vulnerable individuals.
In this light, coordination mechanisms that make access to benefits practically impossible are incompatible with the requirement of effective protection. This tension reveals what may be described as the ‘forgotten social dimension’ of refugee law. While refugee law scholarship has traditionally concentrated on admission, non-refoulement, and civil and political guarantees, Articles 24 and 25 of the Refugee Convention impose broader positive obligations relating to social security and administrative protection.Footnote 65 Accordingly, refugee protection entails not only non-interference by the host state but also the provision of functional substitutes where ordinary administrative cooperation cannot safely operate.
The European Social Charter and the International Covenant on Economic, Social and Cultural Rights (ICESCR) further reinforce this obligation, affirming the universality of social protection rights and the principle of non-discrimination in access to benefits.Footnote 66 In line with the jurisprudence of both the ECtHR and the ECSR, states may be required to remove or adapt administrative barriers that disproportionately affect refugees, particularly where such barriers result in material deprivation or exclusion from essential social protection.Footnote 67
Interpretive guidance can also be drawn from European human rights jurisprudence. The ECSR has repeatedly emphasised that immigration status cannot justify denial of essential social rights, while the ECtHR has stressed the obligation of states to secure minimum standards of dignity and subsistence for vulnerable groups. Taken together, these approaches support an interpretation of coordination mechanisms that prioritises effective access over strict procedural formalism.
The resulting tension reflects a deeper incompatibility between two distinct legal rationalities: the cooperative logic of bilateral social security coordination, grounded in reciprocity and administrative trust, and the protective logic of refugee law, which recognises that such trust may be absent precisely because protection is sought against the state of origin. Within this framework, a unilateral and protection-sensitive approach emerges not as a derogation from coordination principles but as a necessary adaptation of them. Its objective is to preserve both the integrity of coordination systems and the effectiveness of refugee protection in circumstances where ordinary assumptions of diplomatic cooperation no longer hold.
On that ground, the task is not to abandon coordination altogether but to adapt it to conditions in which its foundational premises cease to function. The following section develops a unilateral, protection-sensitive model of social security coordination designed to address these structural contradictions while maintaining both effective protection and systemic coherence.
IV. Functional substitution as a protection-sensitive model of social security coordination
Building on the systemic conflict identified in the preceding sections, this section advances a protection-sensitive model of social security coordination tailored to refugees who cannot safely engage with the authorities of their country of origin. The model systematises emerging administrative practice into a coherent legal approach grounded in the principles of effectiveness, functional substitution, and the primacy of international protection obligations. The proposed model does not seek to replace ordinary coordination mechanisms but applies only in situations where refugee protection obligations render standard interstate cooperation incompatible with fundamental rights.
At its core lies a straightforward proposition: where coordination mechanisms rely on forms of administrative cooperation that are incompatible with refugee protection, those mechanisms have to be adapted, limited, or disapplied to ensure that social rights remain practical and effective.Footnote 68 This follows from Articles 24 and 25 of the 1951 Refugee Convention, which require both equal treatment in social security and the provision of administrative assistance where refugees cannot rely on their country of origin.Footnote 69 In operational terms, the model adopts a predominantly unilateral mode of implementation. Competent authorities of the host state (eg social insurance institutions) assume responsibility for the assessment and recognition of entitlements without requiring direct cooperation with institutions of the country of origin, as otherwise envisaged in bilateral arrangements. This entails not the abandonment of such agreements but rather their selective disapplication insofar as their procedural requirements conflict with higher-ranking obligations derived from refugee law, human rights law, and EU law.
A central feature of the model concerns the evidentiary framework governing the recognition of insurance periods completed abroad. Under standard coordination regimes, such periods must be confirmed through inter-institutional cooperation and standardised forms.Footnote 70 For refugees, however, this requirement may be impossible to fulfil or may expose them to risks that are incompatible with their protection status. The model introduces a flexible evidentiary approach, allowing domestic authorities to rely on alternative forms of proof, such as employment records, so-called work books, and other documentation submitted by the applicant subject to ordinary standards of credibility assessment.Footnote 71 This approach is not entirely novel. Comparable evidentiary flexibility can be observed in domestic systems where foreign periods are recognised without direct institutional verification, for example in the context of repatriates or other categories of returnees.Footnote 72 Extending this logic to refugees gives effect to a form of functional substitution, whereby the host state assumes, where necessary, the administrative functions that would otherwise be performed by the country of origin.
At the same time, the model preserves the internal logic of contributory social security systems. Established calculation principles, such as the pro rata temporis rule, remain intact. Periods completed abroad are considered solely for determining entitlement and calculating benefits under domestic law, without transferring financial responsibility for those periods to the host state.Footnote 73 This ensures compatibility with the structural and financial foundations of national systems.
In practice the absence of verifiable foreign benefits may increase reliance on domestic minimum guarantees, including minimum pension supplements or income support schemes. While this may shift part of the financial burden to the host state, such consequences should be understood as flowing from binding protection obligations rather than discretionary policy choices.Footnote 74 The proposed model remains narrowly confined to beneficiaries of international protection, namely refugees and persons granted subsidiary protection, and does not extend to other categories of migrant. This limitation preserves the model’s normative foundation in refugee and human rights law.
The model nevertheless entails certain risks, particularly evidentiary uncertainty arising from the absence of formal interstate verification. Yet similar difficulties are routinely addressed within social security administration through credibility assessments and corroborating evidence.Footnote 75 More importantly, the risk of abuse should be balanced against the risk of exclusion inherent in rigid coordination mechanisms, especially where exclusion may threaten human dignity and minimum subsistence.Footnote 76
The model also departs from the traditional logic of social security coordination, which is premised on reciprocity and mutual trust between states. In the refugee context, such assumptions may no longer hold. The proposed approach therefore constitutes not merely a technical adjustment but a protection-oriented recalibration of coordination mechanisms designed to ensure that social rights remain effective in situations of forced migration.Footnote 77
V. Conclusions
This article has argued that the principal challenge facing refugees’ access to social security lies not in the absence of legal entitlement but in the procedural mechanisms through which those entitlements are realised. Bilateral social security coordination is premised on reciprocity, administrative cooperation, and mutual trust—assumptions that are fundamentally incompatible with situations of forced migration.
Against this background, the article has demonstrated that Articles 24 and 25 of the 1951 Refugee Convention, interpreted in light of European human rights standards and the principle of effectiveness, require more than formal equality. They impose positive obligations on host states to ensure that social rights remain practical and effective, including, where necessary, through the functional substitution of administrative assistance that refugees cannot safely obtain from their country of origin. Within the hierarchy of applicable norms, these obligations may require the restrictive interpretation, adaptation, or disapplication of conflicting administrative arrangements.
The article has further proposed a protection-sensitive model of social security coordination that reconciles the objectives of refugee protection with the institutional logic of contributory social security systems. By replacing interstate administrative cooperation with unilateral assessment based on flexible evidentiary standards, the model seeks to preserve both effective access to social rights and the coherence of coordination mechanisms.
More broadly, the analysis suggests that contemporary migration realities require a reconsideration of coordination models developed for ordinary labour mobility. Ensuring effective access to social security for refugees is not merely an administrative adjustment but a legal consequence of international protection obligations and an essential condition for the solidarity and equality that underpin the European Social Model. Ultimately, the article demonstrates that the effectiveness of refugee protection depends not only on recognising social rights in law but also on adapting the administrative mechanisms through which those rights are realised.
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