Faulkner v. Ireland (application no. 30391/18) and McDonagh v. Ireland (no. 30416/18)

Date of the decision: 31 March 2022

Country: Ireland

Background

Sisters Christina Faulkner and Bridget McDonagh complained that the orders to vacate aroadside site in Limerick, on which they had been living illegally had interfered with their rights under Article 8, The Right to Family life and Home, of the European Convention of Human Rights, and that the authorities had not examined the proportionality of the orders. The Traveller Equality and Justice Project, the Irish Human Rights Commission and the European Roma Rights Centre also participated in the hearing and claimed local authorities in Ireland were failing to provide an adequate volume of accommodation as required under Irish law. They also criticised the insanitary conditions of existing Traveller accommodation and the inadequate provision of basic services.

However, in its decision in the cases of Faulkner v. Ireland (application no. 30391/18) and McDonagh v. Ireland (no. 30416/18)[1], the European Court of Human Rights found unanimously the applications inadmissible. The Court found that there was no basis to conclude that the court order to vacate the land had been disproportionate to the legitimate aim pursued of “improving infrastructure and public safety”. 

This decision can be seen as a backlash for States proportionality responsibility under Article 8 of the convention and can be seen as a set back for housing rights activist in Ireland.  

Here are some key passages in Faulkner and McDonagh v Ireland:

96. In considering whether an eviction is proportionate, the Court will take account of whether the home was lawfully established. If the home was lawfully established this factor will weigh against the legitimacy of requiring the individual to move. Conversely, if the home was established unlawfully, the position of the individual is less strong. If no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation. The evaluation of the suitability of alternative accommodation is a task that will involve consideration of the situation and particular needs of the persons concerned as well as the needs, rights and interests of the local community. In respect of this task it is appropriate to give a wide margin of appreciation to national authorities who are evidently better placed to make the requisite assessment.

97. The Court has stated that although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, it may have an incidence on the manner in which such laws are to be implemented. The vulnerable position of Roma and Travellers as a minority means that some special consideration must be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the way of life of the Roma and Travellers.

98. The Court would recall, however, the limits it has identified in its case-law on the scope of Article 8 of the Convention. It has held that this provision does not recognise, as such, a right to be provided with a home or guarantee the right to have one’s housing problems solved by the authorities, as the scope of any positive obligation to house the homeless is limited.