Beyond arbitrary interference: the right to a home? Developing socio-economic duties in the European Convention on Human Rights
This paper is concerned with divergent trends in the protection of socio-economic rights by the European Court of Human Rights (ECtHR). It focuses on the potential to gain access to housing or housing-related benefits through the incremental development of positive obligations in the European Convention on Human Rights (ECHR). First, it argues that, despite the conceptual inadequacy of the positive–negative dichotomy of rights, its influence is still strongly reflected in the ECtHR’s jurisprudence. It demonstrates that, despite the potential to develop the positive aspects of Articles 3 and 8 ECHR to protect vulnerable homeless individuals in respect of their need for shelter, strategic successes of the past decade, such as Connors v UK and McCann v UK, reflect a bias towards claims involving negative interference with the enjoyment of an existing home. Second, the article considers the implications of a trend towards the harmonisation of socio-economic rights in member states, through use of the fair trial right in Article 6, or the right to equal treatment in Article 14, read with Article 1 of Protocol 1 ECHR. It argues that, despite the impression of progress in Tsfayo v UK and Stec v UK, ,the ECtHR has relied on an artificial extension of substantive rights to a fair trial or to property covered by the Convention, rather than on efforts to address issues of socio-economic disadvantage more holistically through the development of a principled jurisprudence of positive obligations in the ECHR.