Breaking the cycle of discrimination? Traveller/Roma housing exclusion and the European Convention on Human Rights
| DOI | 10.1177/1358229115627519 |
| Published date | 01 March 2016 |
| Date | 01 March 2016 |
| Author | Darren O’Donovan |
| Subject Matter | Articles |
Article
Breaking the cycle of
discrimination?
Traveller/Roma housing
exclusion and the
European Convention
on Human Rights
Darren O’Donovan
Abstract
Recent legal and policy developments concerning Europe’s Traveller/Roma have brought
into sharp focus the structural inequalities facing traditionally nomadic minorities.
Despite such interventions however, European human rights norms have struggled to
address an equality challenge that exists at the interface of indirect discrimination, socio-
economic rights and multiculturalism. To illustrate the policy and legislative dynamics
underpinning Traveller/Roma exclusion, this article critically analyses the difficulties of
accessing culturally appropriate housing for the Irish Travelling Community. It highlights
how Irish litigation on behalf of Travellers has tested the boundaries of Article 8 of the
European Convention on Human Rights, particularly the extent to which a minimum
core of accommodation provision may be secured. The article argues that the recent
European Court on Human Rights case of Winterstein v. France provides fresh impetus for
the protection of Traveller/Roma cultural identity in the housing sphere.
Keywords
Equality, housing, European Court on Human Rights, nomadism, travellers, cultural
identity
Faculty of Law, Bond University, Queensland, Australia
Corresponding author:
Darren O’Donovan, Faculty of Law, Bond University, University Drive, Robina, Queensland 4226,
Australia.
Email: dodonova@bond.edu.au
International Journalof
Discrimination and theLaw
2016, Vol. 16(1) 5–23
ªThe Author(s) 2016
Reprints and permission:
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DOI: 10.1177/1358229115627519
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Introduction
Creating stronger legal and policy interventions to tackle the enduring prevalence of
what has been termed Europe’s last acceptable form of racism (Gil-Robles, 2004) is a
key challenge across the continent. Such reform however must be underpinned by an
awareness of the specific legal dynamics which facilitate Traveller/Roma housing exclu-
sion.
1
Using Irish experiences to illustrate the limits of formal equal treatment, this
article analyses the reasons behind inadequate accommodation rates and enforcement,
even in a nation with relatively long established legislative framework for Traveller
accommodation. It underlines how long waits for appropriate accommodation, accom-
panied by overbroad eviction powers, can create a climate of constructive assimilation
impinging upon cultural rights.
The article then analyses whether the obligation to facilitate a Traveller/Roma way of
life under Article 8 of the European Conven tion on Human Rights (ECHR) can be
applied to break this cycle of discrimination. Whilst Article 8 embraces only a civil
right to respect for one’s home, the centrality of secure accommodation to Traveller/
Roma cultural and family life has led the European Court on Human Rights (ECtHR) to
underline the importance of the interests protected through it. Recognizing Article 8 as
lying at the ‘heart of a web of fundamental rights’,
2
the Court has increasingly empha-
sized the need for procedural safeguards and accurate proportionality balancing. As a
result, Article 8 can be viewed as requiring State Parties to create a coordinated frame-
work for the provision of culturally appropriate accommodation. This framework must
condition the use of eviction powers upon adequate consideration of alternative accom-
modation options. The ECtHR has also imposed a greater burden of justification on
States by focusing upon proper impact assessment, consultation and the creation of clear
accommodation plans when analysing the proportionality of States’ actions in the hous-
ing sphere. The growing linkages between the Court’s approach and other international
human rights instruments further support the position that Article 8 can be applied as a
‘circuit breaker’ against the cycle of delayed implementation of accommodation pro-
grammes and related evictions.
Ireland as a case study of Traveller/Roma housing exclusion
In Buckley v. UK, the first ECtHR case dealing directly with nomadic Travellers, Justice
Pettiti criticized the majority for failing to tackle the ‘vicious circle’, whereby ‘unrea-
sonable combinations’ of eviction laws and housing legislation prevented Traveller
families from living in certain areas.
3
This ‘deliberate superimposition and accumulation
of administrative rules’, he argued, made it ‘totally impossible’ to pursue a Traveller way
of life.
4
Irish experiences underline these prevailing patterns of exclusion, with con-
structive assimilation into standard housing occurring through the interactions of hous-
ing legislation, homelessness and planning enforcement.
The Irish Travelling Community suffers from severe socio-economic exclusion, with
vast disparities between them and the majority population in education, employment and
health. Irish Travellers suffer from an 84%unemployment rate and only 13%of Tra-
veller children complete second-level education.
5
A recent study found that Traveller
6International Journal of Discrimination and the Law 16(1)
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