European case law on migrants’ social and mobility rights: The need for a comparative approach in assessing ‘human rights overreach’
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1177/09240519221092591 |
| Subject Matter | Articles |
European case law on migrants’
social and mobility rights: The
need for a comparative
approach in assessing ‘human
rights overreach’
Lieneke Slingenberg
Vrije Universiteit Amsterdam, the Netherlands
Abstract
Social rights (right to social security and social welfare) and mobility rights (right to freedom of
movement within the territory) are the only two rights in European human rights law that limit
their scope of application to persons lawfully in the territory. Migrants have contested this limitation
in two ways: (1) arguing for exceptions to, or for a broad interpretation of, the concept of lawful
presence, and (2) arguing that such policies violate other human rights that apply to everyone. This
article examines the responses in European case law to these arguments, and shows a striking dif-
ference between cases on social rights and cases on mobility rights. While European courts and
treaty bodies have significantly expanded the personal scope of social rights and/or the material
scope of civil rights into the social realm, they have refrained from doing so as regards mobility
rights. This finding is relevant for two reasons. First, it nuances the general idea that civil rights
are privileged over social rights. Second, it nuances concerns about human rights ‘proliferation’
or ‘overreach’, which have been voiced as regards the expansion of migrants’social rights.
Keywords
Persons lawfully within the territory, access to social benefits (‘social rights’), freedom of
movement and to choose a residence (‘mobility rights’), migration control, European Court of
Human Rights, Court of Justice of the European Union, European Committee of Social Rights
Corresponding author:
Lieneke Slingenberg, Professor of Migrants and the Rule of Law, Vrije Universiteit Amsterdam, De Boelelaan 1105,
Amsterdam 1081 HV, the Netherlands.
Email: c.h.slingenberg@vu.nl
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(2) 98–117
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09240519221092591
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1. INTRODUCTION
The only two rights in European human rights law that limit their scope of application to
persons lawfully (residing) in the territory are, on the one hand, the right to access social secur-
ity and social welfare (social rights) and, on the other, the right to internal freedom of move-
ment and to choose a place of residence within the territory (mobility rights).
1
These
limitations in personal scope can be found in the appendix to the (revised) European Social
Charter (ESC), in Article 2(1) (on freedom of movement) of Protocol 4 to the European
social advantages) and Article 45(2) (on freedom of movement) of the Charter of
Fundamental Rights of the European Union.
2
European States generally use both the exclusion from social rights and mobility rights as an
instrument of migration control. Exclusion from social benefits is used to deter future migrants
and stimulate the voluntary return of irregular migrants present on the territory. By making their
life difficult, States expect migrants to take ‘responsibility’and make the rational choice to
return.
3
As an alternative to such policies of forced destitution,
4
States do provide shelter to irregu-
lar migrants, but under the condition of complying with residence restrictions, such as curfews,
reporting obligations, surveillance, and dispersal policies.
5
By subjecting migrants to such policies
of forced containment and isolation, States try to improve return procedures and make sure that
migrants cooperate.
Migrants without legal residence have contested their exclusion from social and mobility rights
before European courts and treaty bodies, relying on two lines of argument:
1. This article deals with the right to freedom of movement within the territory, so not the right to enter the territory or the
protection against deportation.
2. This article is limited to European human rights law. Similar limitations in personal scope can be found in
Articles 21, 23, 24 and 26 of the Convention Relating to the Status of Refugees. Hathaway notes: ‘The drafters
of the Refugee Convention, however, paid surprisingly little attention to the importance of meeting the basic
needs of refugees who arrive to seek protection’,as‘the Convention does not address rights to food, water, or
healthcare, and only regulates access to public housing for refugees once they are lawfully staying in a given
country’in James C. Hathaway, The Rights of Refugees under International Law (Cambridge University Press
2021) 589-590.
3. Manon Pluymen, Niet toelaten betekent uitsluiten. Een rechtssociologisch onderzoek naar de rechtvaardiging en praktijk
van uitsluiting van vreemdelingen van voorzieningen (Boom Juridische Uitgevers 2008); Sieglinde Rosenberger and
Alexandra König, ‘Welcoming the Unwelcome: The Politics of Minimum Reception Standards for Asylum Seekers in
Austria’(2012) 25(4) Journal of Refugee Studies 537; Lorna Fox O’Mahony and James A. Sweeney, ‘The Exclusion
of (Failed) Asylum Seekers from Housing and Home: Towards an Oppositional Discourse’(2010) 37(2) Journal of
Law and Society 285.
4. Jesuit Refugee Service, ‘Living in Limbo. Forced Migrant Destitution in Europe’(JRS, 2010)
resource/living-in-limbo-forced-migrant-destitution-in-europe/> accessed 29 September 2021.
5. Ilker Ataç, ‘Deserving Shelter: Conditional Access to Accommodation for Rejected Asylum Seekers in Austria, The
Netherlands, and Sweden’(2019) 17 Journal of Immigrant and Refugee Studies 44; Sieglinde Rosenberger and
Sabine Koppes, ‘Claiming Control: Cooperation with Return as a Condition for Social Benefits in Austria and the
Netherlands’(2018) 6 Comparative Migration Studies 26; Martina Tazzioli, ‘Governing Migrant Mobility Through
Mobility: Containment and Dispersal at the Internal Frontiers of Europe’(2020) 38(1) Environment and Planning C:
Politics and Space 3; René Kreichauf, ‘From Forced Migration to Forced Arrival: The Campization of Refugee
Accommodation in European Cities’(2018) 6(7) CMS 6, 7.
Slingenberg 99
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