By: Dr. Yi-Sheng Liu | Date: September 26, 2025
The right to housing has long been recognized in international human rights law. The International Covenant on Economic, Social and Cultural Rights (ICESCR) affirms that everyone has the right to “an adequate standard of living … including adequate food, clothing and housing.” Yet in many common law jurisdictions, courts remain reluctant to transform this into a directly enforceable constitutional right. Among these jurisdictions, Canada and the United Kingdom stand out as instructive examples. This article highlights their distinct approaches—illustrated through leading cases—to show how two common law systems engage differently with the challenge of constitutionalizing housing rights.
Two landmark cases illustrate this divergence and provide the framework for the analysis that follows. In Canada’s Gosselin v. Québec (Attorney General) (2002), the Supreme Court rejected the imposition of positive obligations under the Canadian Charter. In contrast, in the United Kingdom’s R (Limbuela) v. Secretary of State for the Home Department (2005), the House of Lords held that leaving asylum seekers destitute could breach Article 3 of the European Convention on Human Rights. These cases not only highlight two distinct judicial approaches but also serve as entry points into the broader models examined in this article: Canada’s “soft-law permeation” and the UK’s “hard-law incorporation.” The discussion that follows will compare how each model balances judicial restraint with international human rights norms, and how both ultimately grapple with the limits of constitutionalizing housing rights within common law systems.
Canada: Judicial Restraint
In Gosselin, the Supreme Court considered a Quebec welfare scheme that gave reduced benefits to single adults under 30. The claimant argued this violated Section 7 of the Charter—protecting “life, liberty, and security of the person.” The Court disagreed. The majority stressed that recognizing a constitutional right to minimum assistance would push courts into resource allocation, undermining legislative authority. While Chief Justice McLachlin left open the possibility of future positive obligations, Canadian courts have not acted on it. In Tanudjaja v. Canada (2014), the Federal Court of Appeal dismissed a systemic housing challenge as a “policy issue” unsuited to judicial review.
Still, international human rights law has influenced Canadian administrative law. In Baker v. Canada (1999), the Supreme Court held that decision-makers should consider the values underlying the Convention on the Rights of the Child. More recently, in Vavilov (2019), the Court emphasized that administrative decisions must be reasonable and justified with coherent reasons. These rulings allow international norms to filter into decision-making, even without formal constitutional recognition.
United Kingdom: Minimum Obligations Through Incorporation
The UK has taken a more direct approach by incorporating the ECHR into domestic law through the Human Rights Act 1998. In Limbuela, the House of Lords found that denying asylum seekers access to basic subsistence could amount to “inhuman or degrading treatment” under Article 3. While the Court stopped short of creating a freestanding “right to housing,” it effectively established a minimum obligation: the state must not permit individuals to fall into destitution.
The proportionality principle played an important role. Even if restricting welfare to deter immigration was a legitimate aim, the policy could not be justified if it drove people into extreme deprivation. This reasoning reflects a shift from the UK’s traditional Wednesbury unreasonableness test —a highly deferential standard under which a decision is unlawful only if it is so irrational that no reasonable authority could ever have made it—toward a more rigorous, rights-based review grounded in human rights principles.
Real-World Illustrations
The importance of housing rights is not confined to the courtroom. In June 2017, the Grenfell Tower fire in London killed 72 people, many of them immigrants and low-income residents. Investigations revealed longstanding safety issues in social housing. The tragedy underscored that adequate housing requires more than shelter—it must also be safe, habitable, and dignified.
In Canada, the housing crisis takes another form. Rising rents and home prices have led to the growth of tent encampments in Toronto and Vancouver, especially during the COVID-19 pandemic. Municipalities have often dismantled these encampments citing public safety, yet affordable housing options remain scarce. These events highlight the practical consequences of judicial restraint: without constitutional recognition of housing rights, vulnerable populations have limited recourse.
Lessons from Two Models
Canada and the UK exemplify two distinct models of engaging with international human rights law. As the preceding discussion shows, Canada’s “soft-law permeation” approach allows treaties like the ICESCR and CRC to influence administrative law but stops short of enforcing social rights. The UK’s “hard-law incorporation” approach, by contrast, gives courts the authority to apply ECHR standards directly, ensuring at least a minimum safety net.
Both models have trade-offs. Canada preserves democratic control over budgets but leaves marginalized communities exposed to housing insecurity. The UK enforces minimum protections but faces political backlash, as seen when the Supreme Court in AAA v. Secretary of State for the Home Department (2023) struck down the government’s Rwanda asylum plan, prompting Parliament to pass the Rwanda Safety Act 2024.
Conclusion
Neither Canada nor the UK has fully constitutionalized a right to housing. But both demonstrate how international human rights norms can shape administrative decision-making. Canada illustrates the limits of a cautious, interpretive model, while the UK shows how treaty incorporation can enforce minimum obligations.
As global housing crises intensify, from London’s unsafe social housing to Toronto’s growing encampments, courts and policymakers face a pressing question: should housing remain an aspirational principle, or evolve into a justiciable guarantee of human dignity?