A stepping stone for the right to adequate housing of undocumented migrants: Notes on Infante Díaz v Spain

Serde Atalay

Doctoral Candidate | Lund University, Faculty of Law, Sweden 

This article analyses one of the recent views adopted by the Committee on Economic, Social and Cultural Rights (CESCR, the Committee) in the communication Infante Díaz v Spain concerning the right to adequate housing under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR, the Covenant).[1] This view is important, as it marks the first time the CESCR found a violation of the right to adequate housing of an undocumented migrant under this provision. In what follows, this article will first introduce the facts of the communication and then the reasoning of the Committee. It will then offer a brief analysis of the Committee’s reasoning and observations on the importance of the case, followed by a conclusion.

The facts of the communication

The author of the communication was Yaureli Carolina Infante Díaz, a national of Venezuela, acting also on behalf of her youngest son. When she was homeless, Ms. Infante Díaz entered into a verbal agreement to rent a room in a shared apartment in Santa Coloma de Gramenet, Barcelona for €200/month. Shortly thereafter, the person who rented out the room told her that he was moving out and if the author wished to remain in the property, she would have to pay him €800. The author agreed to do so, and at that point realized that her occupation of the property was unlawful. Half a year later, the author received an eviction order in respect of ‘unknown occupants’. She went to court to identify herself as the occupier of the property, upon which the eviction order was suspended. One year later, however, the author received a notice informing her that the eviction order would be enforced soon, following a request filed by the financial institution that owned the property. The enforcement of this order was, however, suspended. The author approached the Social Services Department of Santa Coloma de Gramenet Municipal Council (Social Services Department) to report her socioeconomic vulnerability and risk of homelessness. Later, a second eviction order was issued against the author. The author requested the postponement of this order until the end of the school year with the help of a court-appointed lawyer, which was rejected. A new eviction date was then set. However, shortly before this scheduled date, the Social Services Department wrote a report, noting the author’s precarious socioeconomic and housing situation. It also delivered food to the author on six occasions for three months. The eviction was then postponed again, twice.[2] One day before the latest scheduled date of eviction, the communication was registered by the Committee. The Committee ordered the adoption of interim measures by Spain to either suspend the eviction of the author and her son while the communication was being considered, or to offer adequate alternative housing to them in genuine consultation with the author.[3] The facts show that while the communication was being considered, the eviction of the author and her son was still pending due to a few more suspensions.[4]

The author claimed a violation of ICESCR Article 11(1) due to the threat of eviction she and her son were facing in the absence of alternative housing. The author was not lawfully present in Spain and argued that this prevented her from seeking public housing. She also noted that she cannot afford housing in the private sector due to her socioeconomic situation.[5]

The reasoning of the Committee

In the absence of any objections raised by Spain to the admissibility of the communication, the Committee declared it admissible.[6]

The crux of the communication was whether, despite the author’s inability as an undocumented migrant to benefit from the existing public housing policies which were cited by Spain as proof of its compliance with Article 11(1),[7] her and her son’s planned eviction violated the Covenant.[8] The Committee started its reasoning by noting states’ obligation to guarantee the Covenant rights without discrimination under ICESCR Article 2(2). It referred to its General Comment No. 20,[9] which explicitly states that non-discrimination is a ‘cross-cutting and immediate obligation’ under the Covenant,[10] and the Covenant rights apply to all, ‘including non-nationals, regardless of legal status and documentation.’[11] With reference to the report of the Special Rapporteur on the right to adequate housing of migrants from 2010,[12] the Committee explicitly noted that ‘this implies that documented and undocumented migrants should enjoy the same protection.’[13] The Committee cited this report extensively in its reasoning, emphasizing the non-fulfilment of states’ obligations to guarantee the right to adequate housing particularly for undocumented migrants through necessary public policies.[14] It then significantly noted that,

… being unlawfully present in the territory of the State party should not, in itself, be a criterion for excluding the author and her son from public housing services.[15]

The Committee supplemented these remarks with its established principles concerning forced evictions, i.e., the need for the eviction to be reasonable and proportionate and the duty of states to provide adequate alternative housing.[16] A nuance in this respect is the Committee’s specific remark that ‘forced evictions, including of undocumented migrants, are prime facie incompatible with the Covenant’ (emphasis added).[17] In light of these principles, the Committee noted that the author made her socioeconomically vulnerable situation and need of housing known to the relevant authorities. It stated that the author was unable to obtain public housing due to her undocumented status, a point which was not contested by Spain.[18] Finding the author’s socioeconomic vulnerability more serious than the owner’s right to property which Spain aimed to protect, the Committee concluded that the eviction orders issued against the author and her son, without any alternative housing, violated ICESCR Article 11(1).[19]

Analysis of the view

For the first time in its growing jurisprudence on ICESCR Article 11(1), the Committee issued a view finding a violation of the right to adequate housing of an undocumented migrant. Ms. Infante Díaz’s undocumented status was instrumental to the outcome of the communication because her main claim was that, as an undocumented migrant, she was unable to obtain public housing as an alternative. The lack of any other alternative housing, coupled with the finding that the harm suffered by the author as someone in a socioeconomically vulnerable situation outweighed the right to property of the owner, led to a violation.

Importantly, Ms. Infante Díaz was occupying the property in question unlawfully. She had no other choice but to do so, because her undocumented status prevented her from accessing public housing or finding a job (which would enable her to afford housing), thus further entrenching her in socioeconomic vulnerability.[20] She was essentially pushed into a vicious cycle of poverty and exclusion as an unlawfully present foreigner.[21] Though the Committee did not discuss Ms. Infante Díaz’s double disadvantage in more detail, it is significant that in the last instance, it explicitly found this concern to outweigh the right to property of the owner, rather than interpreting unlawful occupation to her disadvantage in the balancing exercise.[22]

The most important aspect of this view is the Committee’s finding that unlawful presence should not, in itself, lead to one’s exclusion from access to public housing services. This finding enhances the Committee’s jurisprudence in a significant way. Previously, when examining access to social housing as part of states’ duty to provide adequate alternative housing to those facing eviction outside a migration context, the Committee found that, 

…States parties, with a view to rationalizing the resources of their social services, may set criteria or conditions that applicants must satisfy in order to receive social services.[23]

According to the Committee, such criteria and conditions need to be ‘reasonable’, ‘carefully designed’ to avoid stigmatization, communicated to applicants in a ‘transparent, timely, and complete manner’ etc.[24] Despite these guarantees, this earlier finding left an important question hanging: if ‘conditions and criteria’ in accessing public housing can be set ‘with a view to rationalizing the resources of social services’, (when) would it be justifiable to differentiate between nationals and non-nationals, and/or, between different groups of non-nationals depending on the type of their residence permit or the lawfulness of their presence in this context? This is a valid question since there is no prohibition of differential treatment under the Covenant if it is objective and reasonable.[25] In principle, the ‘criteria and conditions’ referred to in the Committee’s earlier views could be understood as allowing specific constraints on the access of migrants and refugees to public housing if they are deemed to be reasonable and objective. However, the Committee’s finding in Infante Díaz v Spain that unlawful presence as such should not be a criterion for excluding a person from public housing qualifies its earlier finding, noted above, in a crucial way and to the advantage of foreigners. Essentially, it signals that the presence of such a criterion is deemed unreasonable unless proven otherwise by the state. This is in stark contrast to the approach adopted by, for instance, the European Court of Human Rights which prioritizes states’ migration control prerogatives by reasoning that ‘a State may have legitimate reasons for curtailing the use of resource-hungry public services – such as welfare programmes, public benefits and health care – by short-term and illegal immigrants, who, as a rule, do not contribute to their funding.’[26]

Despite its important contribution to the Committee’s jurisprudence on the right to adequate housing and to the rights of undocumented migrants, Infante Díaz v Spain leaves the reader wanting more in two respects. First, and most importantly, it is surprising that the Committee does not separately examine and find a violation of ICESCR Article 2(2) (in conjunction with Article 11(1)) due to discrimination on grounds of immigration status and/or socioeconomic status along the lines discussed above.[27] True, the author herself has not brought such a claim. However, the lack of invocation of a Covenant article (specifically, Article 2(2)) by the authors did not stop the Committee from examining a possible violation thereof ex officio before.[28] In Infante Díaz v Spain, the automatic exclusion of the author from public housing because of her immigration status, along with her related socioeconomic status which also led to her exclusion from the private market, raises enough red flags with respect to discriminatory treatment. Considering specifically the intersectional nature of the disadvantage suffered by Ms. Infante Díaz,[29] examination of the communication from a discrimination lens could have contributed significantly 1) to countering discrimination not only on grounds of immigration status, but also socioeconomic status in light of the complex intersection of the two, and 2) to an understanding of how these grounds should be examined under the Covenant. Such an understanding is crucial given that these grounds would have to be assessed as ‘other status’ according to Article 2(2), since this provision does not explicitly enumerate them as prohibited grounds of discrimination.[30]

Second, it is not clear from the facts, the parties’ arguments, or the reasoning itself exactly which regulations prevented Ms. Infante Díaz from obtaining public housing. It would have been helpful if clear references to the regulations that exclude undocumented migrants from accessing public housing were included; not least for the purposes of follow-up on Spain’s actions (or lack thereof) to amend its legislation in accordance with the Committee’s recommendations.[31]

Conclusion

As the Committee is continuously asked to examine claimed violations of the right to adequate housing in different contexts, its contribution to the enhancement of the justiciability and normative outreach of the right to adequate housing grows. Clearer and more detailed reasoning by the Committee, especially when it comes to claims brought by those who are most vulnerable to rights-violations, would make this contribution more solid. This is particularly important, given the need to fight against housing inequality through strong and well-articulated claims on all fronts – from theory to practice. Regardless of its certain weaknesses, Infante Díaz v Spain constitutes an important step in that respect, and in the right direction.