Breaking the cycle of discrimination? Traveller/Roma housing exclusion and the European Convention on Human Rights

Slow implementation of accommodation programmes

The 1998 Act created a duty to provide for Traveller-specific accommodation in the form of group housing, as well as permanent and temporary halting sites. It requires local authorities to adopt a Traveller Accommodation Programme (TAP), specifying the accommodation needs of Travellers and accommodation projects required to address these needs. ¹³ It must also include measures for implementation, specific to each category of accommodation required. ¹⁴ Beyond these commitments, however, the Act contains no express principles relating to cultural identity or equality. It does not reiterate the equality aims of accommodation provision set out by the Task Force Report. The shift from a cultural rights focus is seen by the statute’s reference to the ‘distinct needs’ of Travellers and ‘annual patterns of movement’ rather than to their cultural or nomadic identity. ¹⁵ This is despite the Task Force Report’s focus upon institutional discrimination and its recommendation that any legislation ‘specifically identify its intention to protect cultural identity’. ¹⁶

The first negative trend under the Act is the failure to secure timely, adequate provision of Traveller accommodation since 1998. This is attributable to the statute’s language of reasonableness, and the absence of express equality or cultural rights underpinnings. Local authorities are placed under an obligation to ‘take any reasonable steps as are necessary’ to implement their TAP. ¹⁷ Crucially, the Act relies entirely upon judicial oversight to enforce this provision. With the duty framed in terms of rationality, the Irish judiciary has been reluctant to enforce positive obligations of provision. The resultant slow implementation of programmes, combined with an overreliance on temporary standard housing, has led international human rights bodies to regularly urge Ireland to increase the provision of appropriate accommodation over the past decade. ¹⁸

The Task Force Report recommended that 3100 units of additional Traveller-specific accommodation be provided. ¹⁹ The Government acknowledges 2027 new and refurbished units have been provided to date. ²⁰ There remain 327 families in unauthorized sites, with 663 families regarded as ‘sharing accommodation’ in the latest annual count. ²¹ In 1999, the first annual count set the figure awaiting accommodation at 1207 families. ²² If the current figure for those currently sharing is combined with those on unauthorized and emergency sites, then the number of families awaiting accommodation is 1024. Whilst shortcomings in the protection of socio-economic rights are often defended by reference to resource limitations, there has been a clear underspend of the available resources under the Act. ²³ The period 1998–2015 covers both a time of great prosperity in Ireland and the aftermath of severe recession. Since Ireland’s economic crash in 2009, the capital funding for Traveller accommodation has been cut by 85%. ²⁴ Nevertheless, in the years 2010–2012, on average only 63.6% of this reduced budget allocation was spent, as local authorities failed to draw down available funds. ²⁵

Constructive assimilation into standard housing

In addition to unmet need, the Act has failed to interrupt a process of constructive assimilation, whereby Travellers are pushed into standard housing whilst Traveller-specific accommodation projects are deferred. The number of Travellers in standard housing rose by 56% in the years 2000–2009, with provision for halting sites decreasing. ²⁶ Whilst in 2002 only 162 Traveller families were in private rental accommodation, this has now risen to 2717. ²⁷ These families may not have security of tenure, and many are awaiting permanent accommodation solutions. The government view is that the current situation is reflective of Travellers choosing to leave, or not formally applying for, Traveller-specific accommodation. Traveller representative groups argue that the reality of poorly serviced halting sites and continual exposure to eviction has forced families to resort to standard housing. Almost one-third of Irish Traveller households living in caravan accommodation had no sewerage facilities in 2011, with one in five having no piped water source. ²⁸ An independent study commissioned by the government concluded that ‘Travellers would generally prefer to live in Traveller-specific accommodation but when their options were limited they might settle for private rented accommodation.’ ²⁹

The move away from Traveller-specific options by local authorities is facilitated by the failure to frame the Act in terms of cultural identity and non-discrimination. The resulting hierarchy of provision is evidenced by the failure of local authorities to make any effective provision for nomadic Travellers. Despite the initial Task Force target of 1000 temporary halting site pitches, ³⁰ only four local authorities currently have transient sites in operation, with all of these being used for emergency accommodation. ³¹ Court rulings have also upheld the insertion of ‘indigenous clauses’ within TAPs, whereby local authorities limit their allocations to Travellers ordinarily resident within their functional area for the past 3 years. ³² The 1998 Act scheme of provision is thus underpinned by a localism incompatible with nomadism.

Local authorities are furthermore under no legal obligation to provide caravans, as distinct from halting sites. In Doherty v. South Dublin County Council, ³³ the High Court held that the 1998 Act did not address homelessness specifically, thereby leaving intact the existing definition under the Housing Act 1988. This made no express distinction between Travellers and the settled community, providing only that a person is homeless where there is no accommodation he or she can ‘reasonably occupy’. ³⁴ The Court refused to construe ‘reasonably’ in the light of cultural identity, holding that ‘such a right would be in contradistinction to the ordinary adaptations which every member of the community must make’ such as occupying a nursing home or retirement village. ³⁵ The ruling is of great significance, as the average life of a caravan is 10 years. Those living on halting sites largely rely upon the government’s Caravan Loan Scheme, which has in recent years been suspended by a large number of councils due to concerns regarding its financial sustainability. ³⁶

Eviction powers and the criminalization of trespass

The final negative trend under the Act is the use of eviction powers without regard for the non-availability of Traveller-specific accommodation. Section 19(c) of the Housing (Miscellaneous Provisions) Act 2002 criminalized trespass on private property, enabling police to direct individuals to leave a location where, in the view of police, their occupation is ‘likely to’ ‘substantially interfere’ with the lawful use of the land. Individuals subject to the direction bear the burden of proof in showing that they have obtained the owners’ consent. A failure to comply is made subject to 1 month imprisonment and a penalty of EUR€3000, with police also empowered to confiscate any object brought onto the land. ³⁷

The trespass laws have so far survived challenge in the domestic courts under the Constitution and the European Convention of Human Rights Act 2003. In McDonagh v. Kilkenny County Council, ³⁸ the High Court held that the applicant’s illegal occupation of local authority land meant that the matter did not fall within the ambit of Article 8. The Court also invoked a blanket principle that human rights cannot shield illegal invasion of property. As Article 8 was not engaged, the case did not consider the State’s obligations under Article 14, in particular the argument that the law in its design and enforcement was indirectly discriminatory.

The compatibility of the law with the Convention must be reappraised in the light of the most recent ECtHR case of Winterstein v. France ³⁹ discussed below. The 2002 Act does not recognize a defence of reasonable excuse, and police are under no obligation to provide notice. Eviction can occur without any consideration of alternative accommodation and there is no official register of evictions. Whilst interim relief to pursue judicial review may be available, such an action only occurred in the McDonagh case, with that precedent illustrating the limited arguments which can be advanced on behalf of applicants. Finally, the protection of private property could be otherwise secured through other statutory enforcement measures. ⁴⁰

The Irish Government claims that the 1998 Traveller Accommodation Act represents a ‘planned, integrated and comprehensive response to meet the accommodation needs of Travellers’. ⁴¹ This section has, however, shown that the failure of the 1998 Act to embed a language of cultural rights and equality has created dangerous interstices which do not challenge the failure to provide halting sites at the same level as housing. Its model of supplementary housing provision does not represent a statute geared towards tackling historically rooted anti-Travellerism.

Cases of severe intrusion upon Article 8 Rights

In spite of the emphasis in cases such as Codona, Article 8 has had an unexpectedly strong impact in cases involving particularly vulnerable members of the Irish Travelling Community. These cases, culminating in a March 2015 ruling by the Irish Supreme Court, reflected upon whether positive provision could, in extreme circumstances, be necessary to prevent the effective deprivation of private and family life under Article 8. The case law also contributes to broader international debates as to whether a national court may reach ‘innovative’ decisions regarding Convention articles (Bjorge, 2012). ⁴⁷

The first ruling in which the High Court found that Article 8 can ground a positive obligation to provide suitable accommodation was Mary O’Donnell v. South Dublin County Council. ⁴⁸ This case concerned three Traveller applicants suffering from a severe condition known as Hurler’s Syndrome. They required assistance with dressing, washing and a range of other daily activities. Their caravan was located on an authorized halting site, with 10 people sharing its two bedrooms, a living area and a bathroom. During the preparation of the Council’s TAP, the family had expressed their preference for permanent halting site accommodation. The council was in the course of developing a permanent facility, which had been delayed by local opposition, but was due, in the Council’s estimation, to be completed in a year.

Laffoy J noted that there was no direct Strasbourg jurisprudence on when provision was necessary in order to facilitate meaningful exercise of Article 8 rights. Nevertheless, the Court was willing to recognize that there could be a positive duty to provide ‘where special circumstances cause a direct interference of a serious kind in family life’. ⁴⁹ This was supported by the United Kingdom Court of Appeal decision in Anufrijeva v. Southwark London Borough Council, ⁵⁰ where it was held that Article 3 ECHR (prohibition of inhuman and degrading treatment) was capable of imposing a positive obligation to provide. The Court in Anufrijeva had stressed that there must be ‘an element of culpability’ on the part of the authority before such an obligation could be imposed. ⁵¹

Laffoy J stressed that whilst culpability of the local authority was one factor, regard was also to be had to the severity of the consequences for the individuals involved. Her Honour relied upon the United Kingdom authority of R(Bernard v. Enfield London BC) where Sullivan J stressed that individuals with severe disability constituted a particularly vulnerable group and that positive measures were needed to enable them to enjoy ‘a normal private and family life’. ⁵² In holding that the council had not acted compatibly with Article 8, Sullivan J stressed that suitably adapted accommodation would have ‘secured [the applicant’s] physical and psychological integrity…restoring her dignity as a human being’. ⁵³ Laffoy J similarly concluded that the circumstances of the case raised a positive obligation to provide suitable caravan accommodation. The Court stressed it was not functioning as a ‘shadow housing authority’, nor recognizing an obligation to make provision for every Traveller, rather:

this case is about the particular circumstances of one family which has three severely disabled members, two of whom were minors when these proceedings started, who to the knowledge of the defendant have been living in unacceptable conditions since 2005, and whose plight is not going to be alleviated until August 2008 at the earliest, if it will be then. ⁵⁴

These two High Court opinions did not appear to fit within the wider constitutional tendency of the Irish Courts to defer to the executive in matters concerning socio-economic rights. This broader culture is embodied most directly by Murphy J in T.D. v. Minister for Education, who ruled out the possibility that the Constitution would directly provide for any form of socio-economic benefit to citizens ‘however needy or deserving’. ⁵⁶ Perhaps reflecting this, the council appealed the Ellen O’Donnell judgement to the Supreme Court, which delivered its ruling in March 2015.

‘Outpacing’ Strasbourg? The Supreme Court in O’Donnell

Stressing the extreme nature of the facts involved, the Supreme Court upheld the High Court ruling. ⁵⁷ Significantly, however, it did not base the outcome upon the ECHR, but rather upon Article 40.3 of the Irish Constitution, which requires the State to, as far as practicable, defend and vindicate the personal rights of the citizen. ⁵⁸ Whilst the Convention was thus not part of the binding portion of the Court’s ruling, it did make a number of comments which stressed that national courts should adopt a conservative approach to interpreting Strasbourg jurisprudence.

The Supreme Court supported the position taken by the United Kingdom House of the Lords in the landmark case of R (Ullah v. Secretary of State). ⁵⁹ It stressed that in interpreting the Convention under Ireland’s ECHR Act 2003, ⁶⁰ regard should be had only to ‘clear and consistent’ principles laid down in Strasbourg jurisprudence. McMenamin J warned that for Irish courts to identify a positive obligation to act under Article 8 ‘the existence and extent of such a duty would have to be discernible from clear and consistent jurisprudence’. ⁶¹ The Court did not cite the recent statement of the ECtHR in Yordanova v. Bulgaria that ‘an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases’. ⁶² While the High Court rulings remain as precedent, the Supreme Court’s repeated underlining of the ‘mirror principle’ in Ullah indicates that if the case had not been resolved under the Constitution, the Convention arguments may have been defeated as having ‘outpaced’ Strasbourg.

The O’Donnell ruling underlines that the Ullah principle and broader debates regarding the role of national courts in interpreting the Convention are particularly significant in the field of discrimination. Whilst the Strasbourg court lays down general principles, national courts will often be called upon to examine the policy context and conduct a balancing exercise on the facts. As discussed in the next section of this article, the ECtHR’s reasoning regarding the obligation to facilitate a Traveller way of life lays particular stress upon proportionality and context. Recent United Kingdom decisions have acknowledged the complexity of the mirror principle in such contexts but these were not referenced by the Irish Supreme Court. In December 2014, the United Kingdom Supreme Court held that domestic courts ‘may choose to go further in the interpretation and application of the ECHR than Strasbourg has done where they reach a conclusion which flows naturally from Strasbourg’s existing case law’. ⁶³ It has also stressed that ‘the domestic court may have to decide for itself what the Convention rights meant, in a context which the ECtHR has not yet addressed’. ⁶⁴

In the author’s view, the Irish High Court rulings represent legitimate interpretations of Article 8. Both judges acknowledged that Article 8 grounded no general right to be provided with accommodation of one’s own choosing. They also argued that the case before them was unique to its facts and would not endanger this general principle. Applying the Court’s well-established proportionality principle, the High Court judgements identified evidence of the local authorities’ culpability whilst stressing the severe deprivation of rights at the centre of the cases. The indirect criticism of this approach by the Supreme Court underlines the vulnerability of the Convention’s equality jurisprudence to national judicial mindset. More positively however, the Irish High Court rulings have shown that it is possible to secure a kernel of protection for especially vulnerable Travellers under Article 8.

Facilitation: An obligation to properly weigh travellers’ rights

First laid down in Chapman v. United Kingdom, ⁶⁵ the obligation to facilitate has been obscured by the ECtHR’s reluctance to outline its substantive content outside the particular circumstances of the case. The leading definition provides that:

The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at decisions in particular cases. ⁶⁶

Over time however, the Court has provided more concrete insight into when a State’s consideration or valuing of Travellers’ cultural identity was not of sufficient quality. The case of Connors v. United Kingdom ⁶⁷ can be understood as addressing the question of whether adequate consideration or facilitation can occur against the backdrop of regressive national policies. Connors was formative for the manner in which national policy failings influenced the ECtHR to reject a state’s purported justification for interfering with Article 8 rights. The Court stressed that its evaluation of states’ balancing of the obligation to facilitate and the public interest in planning enforcement is dependent upon ‘the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant’. ⁶⁸ Significantly, the ‘context of the case’ includes broader shortcomings in government policy as well as the specific eviction order under challenge. In its ruling, the Court emphasized a number of systemic failings ‘for which the authorities must take some responsibility’. ⁶⁹ These included the failure of 70% of local authorities to create a written TAP and the overall small net increase in the number of local authority pitches in the previous decade. ⁷⁰ This ‘broader picture’ rendered the Court less likely to accept the government’s purported justification for the eviction and led it to hold that an appropriate weighting of the obligation to facilitate a Traveller way of life had not occurred.

Connors underlines that whilst the Court has not provided a specific definition of the content of facilitation, this reflects its contextual nature and the centrality of fact-based proportionality balancing to setting its scope. Unfortunately, this renders the obligation somewhat amorphous, relying upon national judges to account for the margin of appreciation, apply the proportionality principle and reach fact-sensitive determinations. The above discussion of the O’Donnell case has already shown the potential and risks to such a deeply contextual approach.

Connors made another important contribution to the development of the obligation to facilitate by underlining that the court will engage in a more searching examination of any procedurally framed Article 8 claims, such as those involving excessive delays or a failure to consult. As the case concerned a decision to evict a family, the Court held it was:

‘… not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. ⁷¹

Evictions and alternative accommodation in Winterstein v. France

Winterstein concerned the eviction a group of voyageur francais, a historically nomadic minority making up 10% of the relevant municipal population. In 2005, the local authorities prohibited the applicants from parking their mobile homes anywhere in the area. This was accompanied by an eviction order against their current encampment, which over one hundred gens du voyage had occupied, with the de facto toleration of authorities, for between 5 and 30 years. Four families opted to accept an offer of social housing and were housed after 40 years. The remaining families continued to live under threat of eviction, hoping that some family caravan sites would be created. After a 6 year wait, the municipal authority had recently abandoned its only listed project for families, in order to hurriedly create a short stay site for nomadic Travellers which the French High Authority against Discrimination and for Equality found it was already legally required to create. ⁷⁴

The ECtHR began by constructing the margin of appreciation, stressing that life in a caravan is an integral part of many Travellers’ identity. Even if they are no longer nomadic, it represents a core method of retaining their cultural heritage, their personal self-determination, their physical and moral integrity as well as community ties. ⁷⁵ Whilst the Court reiterated that the margin of appreciation is wide in social and economic matters, the involvement of a vulnerable minority must make it more likely to intervene. ⁷⁶

In finding the eviction order disproportionate, the Court identified difficulties relating to both the procedure and the substance of the national authorities’ conduct. Firstly, it held that the necessity of the order had not been established, as non-compliance with planning law cannot be cited as being of paramount importance, without balancing this against applicants’ rights. ⁷⁷ Secondly, the principle of proportionality demanded that particular consideration be given to the consequences of the eviction. The failure to carry out proper impact assessment prior to the eviction order was viewed as ruling out the prospect of an accurate proportionality analysis by the authorities.

Turning to the substance of the balancing exercise, the Court stressed that special consideration must be given to Traveller identity when devising solutions to the unlawful settlement of land or deciding on possible alternative accommodation. ⁷⁸ The need to consider alternative accommodation had been met in the case of the four families who sought social housing – they had not been immediately evicted and were accommodated after 4 years. The municipal authorities had, however, failed to consider reasonable alternative accommodation options for those seeking family caravan sites. National authorities must facilitate their cultural identity by exploring reasonable alternatives involving caravan accommodation. The Court underlined that Travellers who request caravan accommodation cannot be criticized for not having accepted social housing. This is a significant finding; supporting the principle that the availability of standard housing does not represent adequate consideration where Travellers have expressed a wish to live in a caravan. ⁷⁹ Where specific attention to alternative caravan accommodation is not paid, it deepens the seriousness of the rights interference and makes it more difficult to justify eviction, particularly where vulnerable individuals or families are subject to the order. This did not occur here, as the local authority had recently abandoned the family site project it had promised for over 6 years.

The specific facts of the case did strengthen the Court’s analysis, especially the authorities’ extended tolerance of the encampment and the presence of a large number of residents. Nevertheless, the Court stressed that the overall, systemic deficiencies in caravan accommodation must be taken into account in assessing whether sufficient attention has been paid in particular cases. ⁸⁰ It expressly relied upon the decision of the European Committee of Social Rights that France was in violation of Article 31 of the European Social Charter (the right to housing) due to the insufficient number of adapted housing solutions for sedentarized Travellers. ⁸¹ The ECtHR placed similar reliance upon specialist jurisprudence in developing the scope of Article 14 (Opuz v. Turkey ⁸² ) and Article 11 (Demir v. Turkey). ⁸³

The jurisprudence of other international human rights institutions also features at another key point in the ECtHR’s reasoning. Paragraph 88 of the judgement reiterates that Article 8 does not encompass a general right to be provided with a home. The Court then immediately qualifies the effect of this position by relying upon two further principles. Firstly, it underlines that reasoning under Article 8 is contextual and shaped by the circumstances of the case, especially the vulnerability of particular applicants, their status as an underprivileged social group and the overall adequacy of national housing arrangements. In the author’s view, this is intended as a rebuttal to the charge that the decision involves the creation of a general right under the Convention. The relevant test eschews general entitlements, instead requiring national authorities to consider the extent of their responsibility, in the circumstances, for the damage to family and private life that may follow a failure to rehouse.

The second qualification appears to rely upon the concept of an ‘emerging consensus’, which has been central in developing the Court’s jurisprudence on Traveller/Romain cases such as D.H. v. Czech Republic. ⁸⁴ The court emphasized:

… in this context that numerous international instruments, some of which have been adopted within the Council of Europe, emphasise the necessity, in the event of the forced eviction of Roma/travellers, of providing them with alternative housing, except in cases of force majeure: see Recommendation (2005)4 of the Committee of Ministers, Resolution 1740(2010) of the Parliamentary Assembly and the Position Paper of the Commissioner for Human Rights dated 15 September…and in more general terms, General Comment no. 7 of the United Nations Committee on Economic, Social and Cultural Rights.

Winterstein should therefore be appreciated as strengthening the protection of nomadic identity under the Convention. For Irish Travellers, the requirements to assess impact and investigate reasonable options for alternative accommodation represent a possible brake upon the dynamic of constructive assimilation described earlier in this article.