By Mareike Hoffmann | firstname.lastname@example.org
Despite its crucial importance for emotional and physiological well-being, the right to housing is often treated as a ‘poor cousin’ in comparison to other necessities.[i] Pointing out the emerging trend to limit the right to housing, the United Nations (UN) Special Rapporteur on Housing has gone as far as naming it as ‘one of the most endangered rights.’ Asylum seekers are especially at risk of having their right to housing restricted since they essentially rely on the state for the provision of housing. Following the influx of asylum seekers to Europe since 2015, the issue of accommodating them adequately persists to this day. Nevertheless, the right to adequate housing is part of the right to an adequate standard of living and thereby included in a wide array of international human rights instruments. Within this blog post, I aim to identify the relevant human rights provisions applicable to asylum seekers and subsequently analyse the flaws of the current system.
The right to adequate housing was first pronounced in Art 25 of the Universal Declaration of Human Rights and further elaborated in Art 11 of the International Covenant on Economic, Social and Cultural Rights (ICESR). (It is also expressed in a number of group-specific human rights instruments, but these instruments do not substantively add to the standard of the ICESCR.) According to the principles of indivisibility and universality of human rights, the right to adequate housing is guaranteed to “everyone including non-nationals, such as (…) asylum-seekers.”
Art 21 of the Geneva Refugee Convention, which also refers to the right to housing, does not apply to asylum seekers. The array of rights provided by the Refugee Convention depends on the level of attachment of the refugee to the host state: the deeper the relation, the more benefits the state must grant. Entitlements are awarded according to the Refugee Convention’s own attachment criteria. Art 21 requires that someone be ‘lawfully staying’ in the country, meaning their presence must be ‘officially sanctioned [and] on-going.’[ii] Indicators of a lawful stay are permanent residence status, recognition as a refugee and the issuance of a travel document or re-entry visa. Asylum seekers do not yet fulfil these criteria. Thus, Art 21 of the Refugee Convention does not apply to asylum seekers.
The Council of Europe
The European Convention on Human Rights (ECHR) applies to all individuals within a state’s jurisdiction (Art 1), and, consequently, to asylum seekers present on the state’s territory. Although the ECHR does not contain a right to housing as such, jurisprudence in relation to housing has been developed under Articles 2, 3 and 8 and Protocol 1 Art 1. Neither Articles 2 and 3 nor Protocol 1 Art 1 contribute substantive standards to the issue of adequately accommodating asylum seekers. Art 8 ECHR refers to the right for respect of private and family life and the home. While the reference to ‘home’ provides the strongest textual link to a right to housing in the ECHR, Art 8 ECHR does not provide the right to a home itself,[iii] but only protects the home once the individual has established residence and has ‘sufficient continuing links’ with the accommodation.
The European Social Charter (ESC) refers expressly to the right to housing for families in Art 16. as well as for every human being in Art 31 of the revised ESC. The scope of application of the ESC formally only extends to lawfully residing individuals and nationals of a member state (see ESC Appendix), and asylum seekers are only recognized as lawful residents once their application has been approved. Drawing on the notion of human dignity, this caveat is overcome in cases of emergency situations where certain rights, covering ‘essential needs (housing, clothing, food)’, apply even to illegal migrants.
The European Union
Within the EU, the Recast Reception Conditions Directive is the main source regarding adequacy standards for the reception of asylum seekers. The period for the Directive’s transposition into national law expired on 20 July 2015. According to recital 9, the Directive is read in conjunction with the Charter, the Convention for the Rights of Child and the ECHR respectively. Referring to the overall aim and scheme of the Directive and the observance of human rights, the CJEU interpreted its personal scope broadly. The Court held that asylum seekers should never be deprived of the Directive’s minimum standards, including asylum seekers who are sent to other EU member states for the processing of their claim as a result of the application of the Dublin Regulation.
Although it does explicitly provide for a right to housing, the Charter of Fundamental Rights of the European Union is not a source of rights by itself, and only relevant where member states implement EU law. Thus, it primarily colours the interpretation and transposition of the Directive through articles 1 (human dignity), 7 (right to privacy), 24 (wellbeing of the child) and 34(4) (right to housing) of the Charter, which collectively informed the guidance on adequate housing for asylum seekers by the European Asylum Support Office (EASO). The EASO guidance specifies the notion of dignity of the RRCD by compiling agreed-upon standards, indicators and good practices already existing in member states. Despite the guidance’s non-binding nature, it reflects common practice and was included in the proposal for the recast of the RRCD as a future basis for monitoring mechanisms.
Problems and Criticism
Unfortunately, the human rights framework on the right to housing is unsatisfactory: for one, the Committee on Economic, Social and Cultural Rights does not openly connect the right to housing with other rights, such as the rights to work and property and the rights of women, in its General Comments. Additionally, the uncertainty as to the justiciability of the right’s individual elements leave private actors in a legal limbo: it remains unclear which of the elements of the right to housing can be claimed in front of a court and which constitute long-term policy goals.
The European Committee of Social Rights also does not link other rights with the right to housing, which limits the applicability of Art 16 ESC in practice, as NGOs and individuals can only guess whether the ECSR would really make such a connection. Additionally, the Committee of Ministers has yet to give effect to a big part of the ECSR’s case law. Nevertheless, the emerging case law developed under the ESC is gaining in importance as the ECSR demonstrates that it is increasingly taking a strong stance on economic and social rights and willing to impose positive obligations on states.
Within EU law, the RRCD itself provides little in terms of concrete standards for accommodations concerning location, security and quality of accommodations. This leaves a wide margin of discretion for member states when choosing the way of provision or form of accommodation. It merely requires the protection of family, access of advisors to the housed applicants, and specifically trained personnel. Like the ESC and ICESCR, the EASO guidance does not explicitly refer to other rights. However, its guidelines are detailed enough to still effectively support NGOs and individuals in proceedings or advocacy efforts. Its applicability in practice, however, suffers as the guidelines do not specify minimum obligations and are non-binding. Similarly to the ICESCR, the EASO does not specify which parts of its guidance are minimum requirements in the sense of Art 20(5) RRCD, which makes it difficult to establish immediate obligations on states. Moreover, although the EU Commission included the guidance in its proposal for the revised RRCD, review of this proposal by the European Parliament and the Council of Ministers is still pending.
Accommodating Asylum Seekers in the Long Run
Overall, accommodating asylum seekers in the long run is a challenging task. The previous analysis has shown that although a plethora of human rights standards in principle apply to asylum seekers, the system is flawed due to its limited practical applicability. Moreover, despite some human rights instruments taking a strong stance in favour of the right to adequate housing, the non-binding nature and complexity of some standards, as well as the failure of human rights bodies to openly connect the right to housing to other rights, hamper their enforceability in practice.
In practice, the implementation of an adequate housing infrastructure for asylum seekers in the long run is further complicated through fluctuating application numbers and lacking support by the public. Eventually, countries will have to decide whether they treat the reception of asylum seekers as an eternal emergency situation or a long-term task. Understanding accommodation of asylum seekers as a long-term task opens infrastructural, urban planning and sociopolitical questions which require inter-agency strategies. Although this complex, policy-oriented interpretation of housing asylum seekers as a long-term task can only be realized through the state,[iv] individuals and NGOs can contribute to a clarification of standards of adequate housing by addressing human rights violations in country report procedures and through international complaint mechanisms, such as the CRC-OP, CEDAW-OP or CJEU.
[i] James Hathaway, The Rights of Refugees under International Law (1st edn, CUP 2005) 478.
[ii] Guy Goodwin-Gill, The Refugee in International Law (3rd edn, OUP 2007) 309.
[iii] X v Germany App No 165/56 (ECHR, 29 September 1956).
[iv] See Hohmann J, The Right to Housing: Law, Concepts and Possibilities (1st edn, Hart Publishing 2013) 32.
Mareike Hoffmann is a student of the LLM programmes International Human Rights Law and Global Criminal Law. She has also been a student research assistant at the University of Groningen since September 2017. She holds a LLB in ‘International and European Law’ (summa cum laude) from the University of Groningen. This blog post is an abridged version of her paper ‘‘We can do it? The Right to Adequate Housing of Asylum Seekers in the International Human Rights Framework and its Implementation in Germany”, which was presented at the TENLAW Conference (Groningen) on 28 September 2017.