The fundamental social rights of irregular migrants under the European Social Charter: Central or marginal to their access to services in Europe?

he European Social Charter (ESC) is the socio-economic 'sister' instrument of the ECHR. The text of the ESC contains a comprehensive list of social rights, which are generally binding on the vast majority of European states, and its provisions have exerted a considerable influence over the development of national and EU legal standards (including the EU Charter of Fundamental Rights). However, a tension exists between the universal nature of these rights and the limited personal scope of the ESC, which in general exempts irregular migrants from its scope of protection. The European Committee on Social Rights (ECSR), the body which interprets the ESC, has tried to bridge this tension by setting out a minimum floor of social protection which should apply to all irregular migrants, in decision such as Defence of Children International v Netherlands. However, states have resisted this interpretation of the ESC, and it remains to be seen whether this minimum floor of basic social rights protection will become an effective means of guaranteeing irregular migrants access to essential services across Europe.