230 | PRACTITIONERS GUIDE No. 6The European Court of Human Rights has held that when a State decidesto provide benefits to a migrant, it must do so in a way that is compliantwith Article 14 ECHR, 899 which prohibits unjustified discrimination inthe enjoyment of other ECHR rights “on any ground such as sex, race,colour, language, religion, political or other opinion, national or socialorigin, association with a national minority, property, birth or other status.”The Court ruled that immigration status could be considered as an“other status” on which unjustified discrimination was prohibited underArticle 14 and “the fact that immigration status is a status conferred bylaw, rather than one which is inherent to the individual” did not precludethis classification, since “a wide range of legal and other effectsflow from a person’s immigration status”. 900 However, “[g]iven the elementof choice involved in immigration status, [. . .] while differentialtreatment based on this ground must still be objectively and reasonablyjustifiable, the justification required will not be as weighty as in the caseof a distinction based, for example, on nationality. Furthermore, [when]the subject matter [. . .] is predominantly socio-economic in nature, themargin of appreciation accorded to the Government will be relativelywide.” 901 Because of this wider margin of appreciation given to the authorities,the European Court found it justifiable to discriminate in theprioritization for the assignment of housing benefits by disfavouringmigrants who are undocumented or that are present in the nationalterritory on the condition that they had no recourse to public funds, asthis specific discrimination “pursued a legitimate aim, namely allocatinga scarce resource fairly between different categories of claimants.” 902The European Committee on Social Rights has considered the exclusionof certain categories of foreign nationals (those unlawfully present on theterritory) from the Charter rights. Drawing on the nature of the Charteras a living instrument inspired by the values of dignity, autonomy, equalityand solidarity, the Committee found that the exclusion of undocumentedmigrants did not apply to rights such as the right to healthcare, “offundamental importance to the individual since [they are] connected tothe right to life itself and [go] to the very dignity of the human being”. 903The Committee has stressed that “this choice in applying the Charterfollows from the legal need to comply with the peremptory norms ofgeneral international law (jus cogens) such as the rules requiring eachstate to respect and safeguard each individual’s right to life and physical899 Bah v. the United Kingdom, ECtHR, Application No. 56328/07, Judgment of 27 September2011, para. 40.900 Ibid., para. 46.901 Ibid., para. 47.902 Ibid., para. 50.903 International Federation of Human Rights Leagues (FIDH) v. France, ECSR, ComplaintNo. 14/2003, Merits, 8 September 2004, paras. 30–32.
MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 231integrity.” 904 The Committee failed to apply this approach to the right tosocial protection/benefits under Article 23 of the ESC(r), 905 to the rightto adequate housing (Article 31.1 ESC(r)), even for unaccompanied minors 906 or the right to protection against poverty and social exclusion(Article 30 ESC(r)), 907 but it found that the right to immediate shelter“is closely connected to the right to life and is crucial for the respect ofevery person’s human dignity” 908 and is therefore applicable to undocumentedmigrants. 909 The Committee has also considered of fundamentalimportance the obligation to “provide protection and special aid fromthe State for children and young persons temporarily or definitively deprivedof their family’s support”. 910 The right to health (Article 11 ESC(r)),the right to social and medical assistance (Aritcle 13 ESC(r)) have beenequally considered applicable to undocumented foreign minors. 911 TheCommittee has also held that “the part of Article 16 relating to the rightof families to decent housing and particularly the right not to be deprivedof shelter applies to foreign families unlawfully present in the country”. 9125. Remedies for violations of ESC RightsAlthough the extent to which ESC rights are justiciable 913 has beencontroversial, arguments that ESC rights cannot be adjudicated on bycourts, or that they are policy objectives rather than rights, have beenauthoritatively dismissed, and ESC rights are regularly adjudicated onby national courts. International judicial or quasi-judicial bodies alsoadjudicate on a comprehensive catalogue of ESC rights, as describedfurther in Annex II.The way in which ESC rights can be claimed in courts and the remediesavailable will vary according to the legal system and the domestic904 Defence for Children International (DCI) v. Belgium, ECSR, Complaint No. 69/2011, Merits,23 October 2012, para. 33.905 International Federation of Human Rights Leagues (FIDH) v. Ireland, ECSR, ComplaintNo. 42/2007, Merits, 3 June 2008, para. 18.906 Defence for Children International (DCI) v. the Netherlands, ECSR, Complaint No. 47/2008,Merits, 20 October 2009, paras. 44–45.907 DCI v. Belgium, ECSR, op. cit., fn. 904, paras. 143–147.908 Ibid., para. 47.909 Ibid., paras. 46–48.910 Article 17(1)(c) ESC(r). See, DCI v. the Netherlands, ECSR, op. cit., fn. 906, para. 66; DCIv. Belgium, ECSR, op. cit., fn. 904, para. 39.911 DCI v. Belgium, ECSR, op. cit., fn. 904, paras. 102, 119–122.912 DCI v. Belgium, ECSR, op. cit., fn. 904, para. 136.913 “Justiciability” “refers to the ability to claim a remedy before an independent and impartialbody when a violation of a right has occurred or is likely to occur, [and it] implies access tomechanisms that guarantee recognised rights”: ICJ, Courts and Legal Enforcement of Economic,Social and Cultural Rights, op. cit., fn. 29, p. 6. The case Purohit and Moore v. The Gambia,ACommHPR, Communication No. 241/2001 (2003), 33 rd Ordinary Session, 15–29 May 2003,paras. 78–85, constitutes a good example, and not the only, of justiciability of ESC rights.