In today’s Grand Chamber judgment in the case of Garib v. the Netherlands (application no. 43494/09) the European Court of Human Rights held, by twelve votes to five, that there had been: no violation of Article 2 of Protocol No. 4 (freedom of movement / freedom to choose one’s residence) to the European Convention on Human Rights. The case concerned the complaint by a woman living on social welfare about residential restrictions in Tarwewijk, a district of Rotterdam with high unemployment, as a result of which she was unable to freely choose her place of residence. The legislation in question made taking up new residence in designated areas conditional on a housing permit, for which the applicant, Ms Garib, did not qualify since her income was not from work and she had not been a resident in the Rotterdam Metropolitan Region for six years immediately preceding her request.
The Court took into consideration that the legislation in question included a number of safeguards, notably an obligation on local government to ensure that sufficient housing remained available locally for those who did not qualify for a housing permit, a system of periodic review by the competent Minister and by Parliament, and adequate legal remedies.
Ms Garib had found accommodation in another municipality. She had not suggested that that residence was inadequate to her needs or in any way less convenient to her than the one she had hoped to occupy in Tarwewijk. The Court therefore concluded that the refusal of a housing permit that would have allowed her to move to the dwelling of her choice in Tarwewijk did not have any consequences amounting to disproportionate hardship.
The applicant, Ms R. Garib, is a Netherlands national who was born in 1971. At the time of lodging the application she was a single mother of two, whose sole source of income was social welfare.
Ms Garib settled in the Tarwewijk district of Rotterdam in 2005, having previously lived outside the Rotterdam Metropolitan Region. She was subsequently asked by the owner of the property which she was renting to vacate the place, as he wished to renovate it for his own use. He offered to let to her another property in the same area, to which she agreed, given that the new flat was bigger and more suitable for her and her two young children.
In the meantime, in 2006, the Tarwewijk district of Rotterdam – an area of high unemployment – had been designated under the Inner City Problems (Special Measures) Act as an area in which taking up new residence was only possible with a housing permit. Such a housing permit was, in principle, only granted to residents of the Rotterdam Metropolitan Area of six years’ standing unless their income was related to work.
Ms Garib duly lodged a request for such a permit in March 2007. Her request was refused by the authorities on the grounds that she had not been a resident in the Rotterdam Metropolitan Region for the six years immediately preceding the introduction of her request. Moreover, since her income was not from work, she did not meet the income requirement that would have qualified her for an exemption from the length-of-residence requirement.
Ms Garib’s objection against that decision was dismissed by the city authorities and, in April 2008, the Regional Court dismissed her appeal. It argued in particular that the Inner City Problems (Special Measures) Act provided for the possibility of temporary restrictions on freedom of residence. Those restrictions aimed to reverse a process of overburdening the districts concerned by striving for a more mixed composition of residents from a socioeconomic point of view. Her further appeal was dismissed by the Council of State in February 2009. In September 2010 she moved to the municipality of Vlaardingen, where she still lives.
Complaints, procedure and composition of the Court
Ms Garib complained that the Inner City Problems (Special Measures) Act and the related city legislation had violated her rights under Article 2 of Protocol No. 4 § 4 (freedom to choose one’s residence).
The application was lodged with the European Court of Human Rights on 28 July 2009.
In its Chamber judgment of 23 February 2016, the European Court of Human Rights held, by fives to two, that there had been no violation of Article 2 of Protocol No. 4. The Chamber found that the measure had pursued a legitimate aim – namely, it intended to reverse the decline of impoverished inner-city areas and to improve the quality of life – and that it had been proportionate to that aim. In particular, the relevant legislation had included several safeguard clauses for those who did not qualify for a housing permit; and Ms Garib had not been prevented from taking up residence in areas of Rotterdam not covered by the legislation in question. On 12 September 2016 the Grand Chamber Panel accepted Ms Garib’s request that the case be referred to the Grand Chamber.
The Human Rights Centre of Ghent University and the Equality Law Clinic of the Université Libre de Bruxelles were both granted leave to intervene in the written proceedings as third parties.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
- Guido Raimondi (Italy), President,
- Angelika Nußberger (Germany),
- Linos-Alexandre Sicilianos (Greece),
- Mirjana Lazarova Trajkovska (“the former Yugoslav Republic of Macedonia”),
- Nona Tsotsoria (Georgia),
- Işıl Karakaş (Turkey),
- Vincent A. De Gaetano (Malta),
- Julia Laffranque (Estonia),
- Paulo Pinto de Albuquerque (Portugal),
- Faris Vehabović (Bosnia and Herzegovina),
- Egidijus Kūris (Lithuania),
- Iulia Motoc (Romania),
- Jon Fridrik Kjølbro (Denmark),
- Georges Ravarani (Luxembourg),
- Gabriele Kucsko-Stadlmayer (Austria),
- Tim Eicke (the United Kingdom) and,
- Egbert Myjer (the Netherlands), ad hoc Judge,
- and also Johan Callewaert, Deputy Grand Chamber Registrar.
Decision of the Court
As to the scope of the case, the Court underlined that the complaint to be examined was the same one as before the Chamber. The Court was not in a position to consider a new complaint by Ms Garib under Article 14 of the Convention (prohibition of discrimination) which had been brought forward only in the proceedings before the Grand Chamber.
The Court agreed with the Chamber’s finding that there had been a “restriction” on Ms Garib’s “freedom to choose her residence”, within the meaning of Article 2 of Protocol No. 4. A Netherlands national lawfully within the territory of the State, she had been refused a housing permit that would have allowed her to take up residence with her family in a property of her choice. The Court found it appropriate to consider the restriction under the fourth paragraph of Article 2 of Protocol No. 4, providing for restrictions “in particular areas” and “justified by the public interest”.
It was not in dispute that the Inner City Problems (Special Measures) Act, on which the housing permit requirement was based, had been accessible to Ms Garib. She had thus been in a position to foresee the consequences which her actions might entail. Therefore, notwithstanding the fact that at the time when she moved to Tarwewijk in 2005 she could not have foreseen that it would be designated under the Act, the restriction of her freedom to choose her residence had been in accordance with the law, as required by Article 2 of Protocol No. 4 § 4. Furthermore, it was uncontested that the restriction had served the “public interest”, aiming to reverse the decline of impoverished inner-city areas and to improve quality of life.
As to the question of whether the means used to pursue that aim had been proportionate, the Court observed that the Act did not deprive any person of housing or forced them to leave their dwelling. The measures provided by the Act affected only relatively new settlers, while those who had been residents of the Rotterdam Metropolitan Region for at least six years were eligible for a housing permit whatever their source of income. The Court did not consider relevant a report of Amsterdam University, according to which, in Ms Garib’s interpretation, there had been no verifiable improvement in quality of life in the districts concerned as a result of the measures in question. The Court noted in particular that the report post-dated the decisions relevant to the complaint. Moreover, the report found that the socioeconomic composition of the districts concerned had already begun to change, to the effect that there were more new settlers who were employed.
Furthermore, the legislator had included a number of safeguard clauses in the Act. Notably, the authorities had to ensure that sufficient housing remained available locally for those who did not qualify for a housing permit; the designation of an area under the Act was to be revoked if not enough such alternative housing was available locally; and the restriction remained subject to temporal and geographical limitation, the designation of particular areas being valid no more than four years at a time. The competent Minister was required to report to Parliament every five years on the effectiveness of the Act. There was moreover an individual hardship clause, allowing the authorities to derogate from the length-of-residence requirement in cases where strict application of it would be excessively harsh. Finally there was the possibility of administrative objection proceedings and of judicial review before two levels of jurisdiction. In those circumstances, the Court considered that the national authorities had adequately provided for the rights and interests of persons in the Ms Garib’s position.
As to Ms Garib’s individual situation, the simple fact that she had constituted no threat to the public order – as she had argued – could not be decisive when balanced against the public interest, which was served by a consistent application of legitimate public policy. Nor was it in itself sufficient to point to the fact that she had already been a resident in Tarwewijk at the time the housing permit requirement entered into force. In that context, the Court underlined that States had a certain leeway (“margin of appreciation”) in determining the specific modalities of a system of residential restrictions.
The Court moreover observed that Ms Garib had been resident in a dwelling in Vlaardingen let to her by Government-funded social housing body since September 2010. She had not suggested that that residence was inadequate to her needs or in any way less convenient to her than the one she had hoped to occupy in Tarwewijk. Nor had she expressed the wish to move back to Tarwewijk since 2011, when she had completed six years’ residence in the Rotterdam Metropolitan Region and had thus become eligible for residence in Tarwewijk.
The Court therefore concluded that the refusal of a housing permit that would have allowed Ms Garib to move to the dwelling of her choice in Tarwewijk at the time did not have any consequences amounting to such disproportionate hardship that her interest would have outweighed the general interest served by the consistent application of the measure in issue. Consequently, there had been no violation of Article 2 of Protocol No. 4.
Judges Tsotsoria and De Gaetano (jointly), Pinto de Albuquerque (joined by Judge Vehabović) and Kūris expressed dissenting opinions. These separate opinions are annexed to the judgment.
EGMR, Pressemitteilung v. 06.11.2017 zum Urt. v. 06.11.2017 – Garib v. the Netherlands (application no. 43494/09)
Redaktioneller Hinweis: Der Fall betrifft nicht eine „Wohnsitzauflage“ im engeren Sinne, sondern eine weniger einschneidende Einschränkung der Freizügigkeit (Wohnsitznahme in einem bestimmten Stadtgebiet nur unter bestimmten Voraussetzungen).