European case law on migrants’ social and mobility rights: The need for a comparative approach in assessing ‘human rights overreach’

Abstract

Social rights (right to social security and social welfare) and mobility rights (right to freedom of movement within the territory) are the only two rights in European human rights law that limit their scope of application to persons lawfully in the territory. Migrants have contested this limitation in two ways: (1) arguing for exceptions to, or for a broad interpretation of, the concept of lawful presence, and (2) arguing that such policies violate other human rights that apply to everyone. This article examines the responses in European case law to these arguments, and shows a striking difference between cases on social rights and cases on mobility rights. While European courts and treaty bodies have significantly expanded the personal scope of social rights and/or the material scope of civil rights into the social realm, they have refrained from doing so as regards mobility rights. This finding is relevant for two reasons. First, it nuances the general idea that civil rights are privileged over social rights. Second, it nuances concerns about human rights ‘proliferation’ or ‘overreach’, which have been voiced as regards the expansion of migrants’ social rights.