Occupation of the land for roadside housing by a minority. The evacuation order for the purpose of public safety did not violate the right to residence
JUDGMENT
Faulkner v. Ireland (app. no. 30391/18) and Mcdonagh v. Ireland (app. no. 30416/18) 31.03.2022
SUMMARY
The applicants, Christina Faulkner and Bridget McDonagh, sisters of each other, are members of the Traveler Community (a recognized ethnic group in Ireland) and live in Limerick, Ireland.
They both moved with their families to a roadside in Coonagh, a suburb of Limerick, in 2013. The first applicant claimed that she had not been provided with adequate housing in the area, while the Government argued that she had rejected the housing offered by the Council. As for the second applicant’s family, they were not offered permanent accommodation, but were given emergency accommodation in a hotel, although they continued to use the side street during the day. However, the family returned to the outdoors in 2017 for the rest of the day, due to the mental health effects of the applicant’s husband from his stay at the hotel.
In 2017 the Limerick County Council and County Council initiated proceedings to expel the applicants from the site. This was considered urgent because the occupation of the area delayed the construction of a new ring road to deal with traffic problems in the city. The applicants’ request for a stay of the evacuation measure was not granted by the District Court.
Invoking Article 8 (right to respect for private and family life) of the ECHR, the applicants complained that the evacuation orders of the illegally staying party constituted an interference with their rights and that the authorities had not examined those orders on the basis of proportionality. They also relied on Article 6, alleging that the proceedings had not been conducted lawfully in the first instance. The Court has decided to include this aspect in the examination of the main complaint under Article 8 of the ECHR.
The Court found that there was no basis for concluding that the decision to vacate the applicants’ premises was disproportionate or that the Court’s proceedings as a whole were unfair, noting that they were represented by a lawyer before the Supreme Court. He emphasized that the applicants had occupied the area illegally and that they had not been left homeless because of the orders, and that state-sponsored accommodation had been found for them. For these reasons, there was no basis for concluding that the court decision to evacuate the site was disproportionate to the legitimate aim pursued to improve infrastructure and public safety. The Irish authorities had acted at their own discretion and the applications were therefore declared inadmissible as manifestly unfounded. The ECtHR did not find a violation of Article 8 of the ECHR.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, Christina Faulkner and Bridget McDonagh, who are sisters and members of the
Traveller community (a recognised ethnic group in Ireland), live in Limerick (Ireland).
Both applicants moved with their families to a roadside in Coonagh, a suburb of Limerick, in 2013.
Ms Faulkner alleged that she had not been offered adequate housing in the area, while the
Government asserted that she had rejected the accommodation that the Council had offered.
Ms McDonagh’s family was not offered permanent accommodation, but was given emergency
accommodation in a hotel, although they continued to use the roadside site during the day.
However, the family returned to the site fulltime in 2017 owing to the effects of hotel living on
Ms McDonagh’s husband’s mental health.
In 2017 Limerick City and County Council initiated proceedings to have the applicants and others
living on that site removed. This was urgent because the occupation of the site delayed construction
of a new ring road to address traffic problems in the city. During these delays, the building
contractor claimed large sums of money for the lack of access from the Council, which in turn
obtained orders from the Circuit Court for the site to be vacated. This occurred at a time when the
applicants, who had very limited financial means, had yet to find legal representation and so they
sought to represent themselves when the matter first came up in court. Once they obtained legal
aid, they applied to have the orders suspended so as to allow sufficient time to find another place to
live. The Circuit Court declined to do so, only allowing some additional days for the applicants to
move on.
The applicants remained on the site. They appealed against the original orders, highlighting the
difficulties they had in obtaining accommodation elsewhere, and separately against the Circuit
Court’s refusal to suspend those orders pending their substantive appeal. This second matter was
dealt with by the High Court within a few days. That court was satisfied that the first-instance court
had dealt with the matter correctly, and noted that in the meantime the Council had offered the
applicants’ families accommodation elsewhere. It furthermore noted the liability of the Council to
pay substantial contractual penalties and the illegality of the applicants’ remaining on the land, and
upheld the original order.
The applicants later left the site and some months later, with support from the Council, obtained
housing in the Limerick area. They did not pursue their substantive appeal.
THE DECISION OF THE COURT…
The Court was satisfied that the roadside site in Coonagh was where the applicants had lived at the
relevant time and thus the court orders had been an interference with their right to respect for their
“homes”. The Court was also satisfied that the aims of the authorities – the improvement of the
road network, with consequent benefits for the economy, and ensuring public safety around a large
building site – had been legitimate.
The key question was whether the interference could be regarded as “necessary in a democratic
society”, that is to say whether it had pursued a pressing social need and the action taken had been
proportionate to the relevant aims. In such matters, the Court allowed a “margin of appreciation”, or
discretion, to the national authorities, which could be broader or narrower depending on the exact
issues, interests and circumstances of a given case. A very important consideration in this context
was whether the decision-making process followed had been fair and had ensured that individual
interests had been duly safeguarded. Also relevant was whether the home in question had been
legally established or not, and whether alternative accommodation had been available to those who
had been required to move on. The vulnerable position of the members of the Traveller community,
while not granting immunity from general legal duties, could be relevant to how laws had been
implemented in relation to this group, and some special consideration had to be given to their needs
and particular lifestyle. The right to respect for one’s home under Article 8 did not, however, include
as such a right to housing, a right to live in a particular location or a right to have one’s housing
problems solved by the authorities.
There were three strands to the Court’s analysis. It firstly examined the criticism that the domestic
legal framework was ill-adapted to deal adequately with cases involving members of the Traveller
community. It did not agree with this criticism, finding that under domestic law it was the courts that
decided on the removal of individuals illegally occupying sites, and that their approach, as guided by
domestic case-law, reflected the essential principles of Article 8 of the Convention, in particular the
need to ensure proportionality.
The second strand concerned the conduct of the proceedings. The Court found it difficult to accept
that, although they had been heard in person by the Circuit Court before the orders had been made,
the applicants had been in a position to effectively participate in that first hearing without legal
representation. It also doubted that the Circuit Court had taken account of all of the circumstances
relevant to the proportionality of the orders. However, the proceedings should be assessed as a
whole. By the time the case came before the High Court, the issue of legal representation had been
solved. As for proportionality, although the High Court had only considered the issue of suspending
implementation of the orders, which had been a narrower exercise than the substantive appeal
would have involved, it had nonetheless identified and evaluated the essential interests in play and
addressed the key point as to whether there had been sufficient justification to postpone the
applicants’ departure from the site.
Lastly, the Court made its own evaluation of the interference, clarifying that its role was not to sit in
appeal on the merits of the orders, but to verify whether the domestic authorities – referring to both
the local authority and the courts – had remained within their margin of appreciation. As the context
of the case – the construction of a new road – fell within the sphere of social and economic policy, it
was justified to allow a broad margin of appreciation. The same applied for the aim of ensuring
safety at the site. Another reason for allowing broad discretion was that a central element in the
proceedings had been the availability of suitable alternative accommodation provided or funded by
the authorities. This had involved the allocation of public resources, and had affected many
claimants. In addition, the applicant’s occupation of the site had been illegal, meaning that their
position had to be regarded as less strong. Their status as members of a vulnerable minority had to
be taken into account here, as well as the efforts made by the local authorities before, during and
after the proceedings to help them secure accommodation. However, the Court emphasised that it
was not its task to review compliance with the statutory obligation that local authorities in Ireland
are under to provide accommodation. It noted that the orders had not left the applicants homeless,
and that subsequently they had been granted, or assisted in obtaining, accommodation in the
locality.
For these reasons, 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. The
Irish authorities had acted within their discretion, and so the applications were declared inadmissible
as manifestly ill-founded.
