For more than a decade, the Council of Europe has expressed deep concern over irregular migrants’ poor access to basic social rights. With this in mind, I consider the extent to which the European Convention on Human Rights can contribute to protect irregular migrants in the social sphere. To this end, I consider the role of international supervisory bodies in social rights adjudication and discuss the suitability of international adjudication as a means to uphold irregular migrants’ social rights. Having reached the conclusion that international adjudication can help protect irregular migrants’ social rights, I examine the ‘social dimension’ of the European Convention on Human Rights and the significance that the European Court of Human Rights attaches to immigration status. I posit that the importance that the Court attaches to resource and immigration policy considerations in N v. United Kingdom significantly constrains the ability of the European Convention on Human Rights to afford irregular migrants protection in the social sphere.
ECtHR, Pancenkov. Latvia, 28 October 1999, echr, no. 40772/98, <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-4912>, visited on 23 October 2014. See also e.g. O’ Rourke v. United Kingdom, 26 June 2001, echr, no. 39022/97, <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-5933>, visited on 23 October 2014; and Marzari v. Italy, 4 May 1999, echr, no. 36448/97,<http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-22827>, visited on 23 October 2014. In Botta v. Italy, the Court found that “[t]he rights asserted by the applicant were social in character” and as such “went beyond the concept of legal obligation” under Article 8(1) (Botta v. Italy, 24 February1998, echr, no. 21439/93, para. 28, <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58140>, visited on 23 October 2014).
For example, in2010, the uk government recommended that overseas visitors’ entitlements to free nhs health care be curtailed with a view to, inter alia, curbing health tourism. Yet, in the same policy document, the uk Government admitted that only “[a] small proportion of visitors engaged in health tourism” (Department of Health (England), Review of Access to the nhs by Foreign Nationals, Consultation Proposals, February 2010, p. 17, , visited on 23 October 2014). Overseas visitors are people who are not ordinarily resident in the uk (National Health Service (Charges to Overseas Visitors) Regulations 1989, si 1989, No. 306, reg. 1(2)). See also V. Bettinson and A. Jones, ‘The Integration or Exclusion of Welfare Rights in the European Convention on Human Rights: the Removal of Foreign Nationals with hiv after N v uk (Application No. 26565/05; Decision of the Grand Chamber of the European Court of Human Rights, 27 May 2008)’, 31:1 Journal of Social Welfare and Family Law (2009) p. 87.