The exclusion of migrants in an irregular situation from the European Social Charter’s scope of application: the paradox of fundamental rights

The exclusion of migrants in an irregular situation from the European Social Charter’s scope of application: the paradox of fundamental rights

The ICJ and ECRE v. Greece: revival of the controversy 

Essential clarifications on the applicability of the European Social Charter (from now on “the Charter”) to migrants in an irregular situation have been made by the European Committee of Social Rights (ECSR) in a decision on the merits, made public on 12 July 2021. This case, International Commission of Jurists (ICJ) and European Council on Refugees and Exiles (ECRE) v. Greece1 is the first collective complaint that deals in depth with the economic and social rights of asylum seekers and refugees. Greece was found to have violated the fundamental social rights of refugee and asylum-seeking children, both accompanied and unaccompanied migrant children.

The Committee proved its ambition by agreeing on immediate measures to ensure effective respect for Charter rights and avoid the risk of serious injury or harm. However, further analysis of the decision revives the debate on the variation in the protection afforded to migrants depending on their legal status. In this case, the applicability of the Charter was recognised to migrant children, in accordance with international law and on behalf of “the best interest of the child” principle. The Committee has reinforced the protection afforded by Article 3 of the European Convention on Human Rights and recognised the obligation of States to provide emergency assistance to the persons concerned.

The condemnation of Greece is motivated by the principle of dignity and the Charter’s objective of extending the application of the Charter’s main core in an exceptional manner. However, the Committee repeatedly recontextualizes its decision, insisting on the regularity of the migration in question. Citing previous case law, it seems to grant protection based on the individual situation of the persons concerned by the claim: in this case, children in a regular situation. The vulnerability of the persons involved is indeed of significant importance in the case, but the Committee recalls the limitation to which the applicability of the Charter is confronted. The right of access to adequate housing is thus inapplicable to migrants, even minors, in an irregular situation, but granted to asylum-seeking or refugee children.

This decision fuels the controversy about the confrontation between migration policy and the objective of fundamental rights. Increases in the European Union of 64% in irregular border crossings by 2022 and of 46% of the same year in asylum applications are creating a sense of urgency in Europe and have prompted EU leaders to put the migration issue back on top of the political agenda. Ministers of the Interior have expressed their willingness to increase the rate of return of “irregular migrants” to their countries of origin when they are refused asylum. While this ambition is legitimate pursuant to the effective right of Member States to control the entry into their territory, stay, and expulsion of migrants in an irregular situation, it is contrary to the objectives of the Charter and human rights. In light of this new threat, the importance of advocating for the extension of the applicability of the Charter to all migrants, regardless of their legal situation, is all the more necessary.

A double obstacle to overcome

The democratisation of such an extension meets certain obstacles. First, the Appendix to the Charter agrees on a double limitation of its scope. In its first paragraph, it is stated that the rights guaranteed in the Charter do not apply to nationals of states not party to the Charter, nor migrants in an irregular situation2. Despite the exceptions found in Articles 12§4 and 13§4, the scope of application never explicitly extends to migrants in an irregular situation. Moreover, in line with the Ministers of the Interior’s protest, the States Parties to the Charter reject this possibility. On 13 July 2011, the ECSR called on states on this issue, requesting national declarations to extend the Charter rights to all persons under their jurisdiction (which de facto includes migrants in an irregular situation regarding territorial jurisdiction). This attempt to expand the scope of the Charter by the will of the states has failed, as none of them has responded to this call so far3. This passivity shows the apparent refusal of states to extend the rights guaranteed by the Charter to migrants in an irregular situation4.

Evolution through interpretation: the example of Article 13

While the evolution of European law is marked by a desire to reduce the number of individuals likely to find themselves in an irregular situation on behalf of the principle of free movement, this legal openness seems to be restricted to nationals of European countries that are members of the EU or the Schengen area. In contrast, the law applicable to migrants in an irregular situation has developed along more repressive lines, neglecting their protection as individuals. Since the 2000s, the ECSR has gradually helped to link the Council of Europe’s vocation to protect the human person to issues affecting irregular migrants in the field of social rights. As its case law develops, the Committee must adapt to a less protective international environment to update the contextualisation of the values on which the European institutions are based. To do this, the Committee mobilises various interpretations of the Charter in order to respect the principle of human dignity and European solidarity. By mobilising the dynamic, teleological and systemic interpretation logic enshrined in international law, the Committee is taking an enterprising stance and developing step-by-step case law to apply certain Charter rights to migrants in an irregular situation. Indeed, any treaty must be interpreted “in the light of the object and purpose of the act containing it”5. The Charter must therefore protect social rights not in a theoretical and illusory way, but concretely and effectively. 

As of 2004, the ECSR timidly stepped forward to extend the applicability of the Charter. In its conclusions XVII-11 of 2004, the limitations on the scope of application set out in the Appendix were confirmed. Still, the Committee qualified its statement by recalling the possibility of extending the application beyond the minimum requirement set out in the text. Moreover, the Committee warns governments that an extension is possible in certain specific cases in the name of the principle of non-discrimination between nationals and foreigners.

In the same year, the Committee admitted for the first time in its quasi-jurisprudence6 that Article 13 – guaranteeing social and medical assistance – was relevant to protect migrants. Unfortunately, the violation is not recognised in this case, setting an extremely high threshold of gravity. Despite a majority of the Committee being in favour of excluding this category of individuals, a desire for change is expressed by Mr Tekin Akillioglu in his dissenting opinion. Mr Akillioglu first recalled that the scope of the Charter specified in its Appendix is only a minimum basis that States are free to extend. Then he indicated that a principle of non-discrimination is in force. In an innovative interpretation of the Appendix, he then considers that when a State has decided to extend national legislation and practice within the scope of a right to foreigners, the principle of non-discrimination must be respected. According to these principles, a violation of Article 13 of the Charter by France should have been recognised. 

In 2009, in DCI v. The Netherlands7, the Committee recognised a non-conventional responsibility of the signatory states of the Charter concerning the homelessness of people in an irregular situation. Still, it refused to admit a violation of Article 13.

More recently, the Committee overcame the obstacles to admit the applicability of Articles 13§1, §4 and 31§2 of the Charter to migrants in an irregular situation8. In this case, FEANTSA accused the Dutch government of failing to meet its obligation to provide accommodation to reduce and prevent homelessness, according to its commitment under the Charter. Referring to the intention of the Charter’s authors and its objective of protecting human rights, the Committee relied on dignity to extend in practice the applicability of social rights to all foreigners, offering them a right to emergency social and medical assistance.

A limited extension in practice

Fundamental rights are rooted in the person’s very humanity, regardless of their legal status. Logically, simply because of this human condition, an individual in an irregular situation should not be denied the guarantee of minimum rights. The Committee stated in 2015 that the social rights guaranteed by the Charter must be exercised to the fullest extent possible for refugees when they are directly related to the right to life and human dignity, in that they form part of a “non-derogable core” of rights9

Since the FEANTSA case, the Committee has regularly recalled in its national reports that persons in an irregular situation must have a legally recognised right to the satisfaction of basic human material need in situations of emergency in order to cope with an urgent and serious state of need. In its 2021 Conclusions, the Committee makes this point several times, reminding many States of their obligation to ensure that this right is made effective also in practice.

The principle of solidarity, at the heart of the European project, should also be interpreted in such a way as to tend towards the abolition of discrimination between nationals and non-nationals in the name of the fundamental aspect of the rights protected by the texts. In matters of human rights, where the individual is at the heart of the reasoning of the institutions, an application that disregards the fundamental rights of individuals, given their irregular legal situation, appears contradictory. 

Despite the Committee’s apparent willingness, its jurisprudence proves that the extension of social rights to migrants in an irregular situation remains limited to the person’s most fundamental rights. In all the decisions cited above, it is recalled that this extension remains exceptional and regulated by a threshold of gravity that is difficult to reach. Indeed, the obligation of States Parties to assist the persons concerned is limited to emergency needs: individuals must be in a situation where their life and human dignity are at risk of suffering substantial and irreparable damage. 

The ICJ and ECRE v. Greece case shows that a distinction persists depending on the legal situation of migrants on European territory and that the vulnerability criterion used to decide on the applicability of social rights has its limits. These limits sometimes contradict a teleological interpretation of the Charter and the very foundation of human rights. It is helpful to recall the fundamental principle enshrined in Part I of the Charter, according to which “the  Contracting Parties accept as the aim of their policy, to be pursued by all appropriate means, both national and international in character, the attainment of conditions in which the rights and principles [outlined in the Charter] may be effectively realised”. Indeed, this principle denotes a duty of international assistance and cooperation incumbent on each of the States Parties to the Charter. Following the primary objective of human rights treaties, these are of such importance that the States’ active participation must guarantee their. Migrants in an irregular situation are equally, if not more, subject to situations that make them extremely vulnerable. They should be protected on behalf of the much-talked-about human dignity.

Finally, the extension of the applicability of social rights to all migrants is limited by the mismatch between legal theory and the actual practice of decisions by State parties to the Charter. Although there have been developments regarding de jure equality between persons of immigrant background and nationals, this is insufficient if de facto equality is not ensured. For equality to be effective, additional action by States is expected to compensate for the different situation in which persons with a migrant background may find themselves compared to nationals. The Committee recalled in 2015 that States must expressly provide assistance services, or demonstrate that they are sufficiently prepared to provide such assistance. Indeed, the Committee often acknowledges in its national findings the mismatch between the right guaranteed to migrants and the situation of states. For example, the Committee concluded following the ICJ and ECRE v. Greece decision that its request for the Greek authorities to improve access to suitable reception centres for migrant minors on behalf of the right to shelter had not been implemented. After a request for a detailed report, the Committee concluded that the situation in Greece does not comply with Article 32§2 of the Charter, since the country’s situation did not guarantee either sufficient legal protection or conditions of respect for the dignity of persons.

Although an exegetical interpretation of the Charter and its Annex can be used to exclude migrants in an irregular situation from the protection granted by it, it is fundamentally contradictory with the very essence of human rights. To remedy this incoherence and make the guarantee of social rights effective, the intervention of civil society organisations in the quasi-legal arena appears not only promising but also very effective. It follows from this article that the scope of application of the Charter is gradually being extended to guarantee protection for people in an irregular situation. The collective complaints mechanism is a clear example of the importance of civil society organisations in the fight for more rights. 

By Anna Diaz


  1. ECSR, 12 July 2021, International Commission of Jurists (ICJ) and European Council on Refugees and Exiles (ECRE) v Greece, No. 173/2018.
  2. European Treaty Series 163, European Social Charter (revised), Appendix, 3.V.1996. 
  3. On the contrary, the Netherlands and Lithuania even explicitly declined the invitation.
  4. The discussion on the applicability of social rights to irregular migrants also takes place in the field of the ECHR. Although Article 1 of the ECHR requires States Parties to recognise the rights and freedoms set out in the Convention for all persons under their jurisdiction, there is a strong reluctance to do so. Recently, the Danish Parliament adopted a bill providing for the return of asylum seekers to a third country, without even admitting them to its territory in the event of a favourable response, thus contravening the ECHR. See Law L226/2021 adopted on 8 June 2021. The example of Denmark perfectly illustrates this increase in hostility towards irregular migrants and confirms the need for civil society organisations to be even more vigilant.
  5. Art.31§1 Vienna Convention on the Law of Treaties of 1968.
  6. ECSR, 4 March 2005, International Federation for Human Rights (FIDH) v. France, no. 14/2003.
  7. ECSR, 28 february 2010, Defence for Children International (DCI) v. Netherlands, no. 47/2008.
  8. ECSR, 2 July 2014, European Federation of National Associations Working with the Homeless (FEANTSA) v. The Netherlands, no. 86/2012.
  9. Conclusions 2015, Interpretative statement on the rights of refugees under the Charter.