Gaygusuz revisited: the limits of the European Court of Human Rights' equality agenda

Today, Gaygusuz v Austria is widely considered to be a leading case of the European Court of Human Rights. Interestingly, such fame was not anticipated at the time of its pronouncement in September 1996. Moreover, in the subsequent 15 years, Gaygusuz did not lead to the development of an eminently significant case law. While the judgment is remembered for its broad pronouncement in favour of equality irrespective of nationality status, in fact it merely targeted the exclusion of legally resident migrant workers from social security benefits, which was already an exceptional phenomenon in the mid-1990s. Crucially, Gaygusuz has not served to extend the principle of equality between either nationals and non-nationals or regular and irregular migrants. Ultimately, this is because it does not manage to escape the fundamental contradiction, which lays at the heart of liberal theory, between the preaching of universality and the practice of closure.