Abstract
When people ask if we select on the basis of skin colour, then we have to readily admit that. Somebody’s skin colour is for us the first sign of possible illegality. But, because we select on the basis of skin colour does not automatically mean that we discriminate. 2
The reduction of unfettered state interests to skill-based or economic selection epitomizes the contraction of state sovereignty in immigration policy more generally: the state may consider the individual only for what she does, not for what she is. 3
Demarcating the field of inquiry: migration and discrimination
People migrate for a range of reasons: to work, to join family members, to study, or to seek international protection. While goods, services and capital can move relatively freely between countries, the same cannot be said for the movement of people. A ‘global mobility divide’ separates the nationals of comparatively wealthy states in the ‘global north’, who enjoy a wide range of legal migration options, from those of poorer states in the ‘global south’.
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David Owen characterises this distribution of migration opportunities as a ‘racialized pattern of transnational positional difference’, one in which migration controls maintain income inequality between states.
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E. Tendayi Achiume’s forensic analysis of race and migration law reveals how such controls also produce, and reproduce, inequalities between people: ….whiteness confers privileges of international mobility and migration. And proximity to whiteness calibrates these privileges. This racial privilege inheres in the facially race-neutral legal categories and regimes of territorial and political borders (sovereignty, citizenship, nationality, passports, and visas). It also inheres in rules and practices of national membership and international mobility.
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It is not just the ability to move at all that is distributed unequally, inequality is also evident in the conditions that those who are able to migrate are subject to. Immigration law creates a hierarchy of migration statuses that is stratified by duration and rights. 7 This hierarchy is, in many states, becoming increasingly complex, and the migration statuses within it ever-more precarious and rights-restrictive. 8 Rules that determine a person’s migration status may be predicated on ‘skill’ or relationship type, but they fashion particular kinds of precarious workers and dependent wives, generating disadvantage along multiple axes, including race and sex/gender. 9 Indeed, the use of rules that appear to be neutral to secure particular kinds of selection and exclusion, has a long history in migration law and control, identifiable in both colonial and post-colonial border regimes. 10 Their contemporary incarnations produce material and expressive harm, including by heightening vulnerability to exploitation, and increasing women’s extant risk of being subject to violence. 11 Such disadvantage is not only experienced by those subject to migration control. ‘Everyday bordering’, and the displacement of borders and border controls to, amongst others, landlords and health professionals, adversely affects migrants and citizens from racialized minority groups. 12 Such policies, alongside those that restrict access to citizenship, reduce the ‘heft’ 13 of it for some, and strip it from others, 14 are co-constitutive of both racial meaning and racial inequality. 15
Distributing the ability to move legally entails much more, however, than the distribution of economic and other opportunities. It may also be determinative of a person’s, or a group’s, survival. As we write, Europe is, once again, simultaneously a refugee-producing region, and one that is hosting a significant proportion of the world’s refugees. 16 The illegality of Russia’s invasion and the brutality of the war act as a reminder, were one considered necessary, that lives are saved when people are able to move between states. Yet, as Cathryn Costello and Itamar Mann explain, there is often a relationship of inverse proportionality between the risk of harm a person faces in their country of origin, and their ability to travel legally to somewhere that is safe. 17 The greater the risk, the fewer the legal options to escape it.
The European Union (EU) responded swiftly to the unprecedented numbers fleeing the war in Ukraine. Building on the visa-free access it had already provided to Ukrainians, it enabled people to enter and travel through the territories of its members. 18 This response stands in stark contrast to the often deadly treatment of other refugees seeking protection at Europe’s ‘racial borders’. 19 Indeed, the failure of legal scholars and practitioners to scrutinise laws that produce the deaths of, for example, thousands of Africans in the ‘black Mediterranean’ 20 from the perspective of racial discrimination is illustrative of a broader ‘racial aphasia’. 21 The failure to recognise the increased risk of death that women undertaking the same illegalised journeys confront, 22 is a similar and compounding omission that enables other, intersecting forms of disadvantageous treatment, to remain unaddressed.
The EU has enabled Ukrainians, and some others fleeing the war, to receive temporary protection, a permission to remain that enables families to reunite, people to work and be supported, and children to go to school. 23 The content of the relevant decision, and the fact that it was made, raise another set of questions about differential treatment. Why are those fleeing the war in Ukraine offered protection in Europe as a group, while those fleeing other wars are not? The law on international protection enables the recognition of both individuals and groups as refugees. 24 So what factors determine how different groups of people, who appear to meet the refugee definition, are established to do so? Lamis Abdelaaty foregrounds the role of shared ethnic identities in shaping states’ responses to refugees. 25 Other research on asylum adjudication has identified gendered and racialized patterns of decision-making, as well as religious discrimination, such treatment negatively affecting asylum applicants’ ability to secure international protection. 26
The above is just a brief overview of some of the literature that has captured, and sought to understand, the myriad of ways in which borders discriminate. Overall, and to draw on the words of Antje Ellermann, those engaging in research on the subject have indeed substantiated the claim that group-based discrimination ‘remains an integral part’ of migration law and policy. 27 What is missing, however, is work that goes beyond impugning migration control as being discriminatory in the colloquial sense of the term, to that which does so by reference to its meaning, or meanings, in law and legal theory.
Why discrimination law?
‘Discrimination and equality law’, broadly defined, comprises international, constitutional, and statutory frameworks which guarantee the right to equality and/or the prohibition of discrimination based on certain ‘grounds’, such as race, colour, sex/gender, sexual orientation, age, disability, religion, etc. Grounds, or protected characteristics, serve as the key to equality and discrimination law, activating the field only when particular types of distinction, or disadvantage, are based on them. 28 Grounds can be enumerated in international treaties, constitutions, and statutory instruments, or identified and delineated via judicial interpretation.
Intuitively, the application of equality and discrimination law to migration control seems appropriate because the latter is predicated on, and imbricated in, disadvantageous treatment on the basis of such characteristics. Yet there has been little sustained academic analysis of when migration laws or controls are unlawfully discriminatory. 29 This has remained the case notwithstanding jurisprudence from national, regional, and international courts and treaty bodies applying prohibitions on discriminatory treatment to states’ migration control practices.
There are two key reasons why the intuition to apply equality and discrimination law to migration control bears fruit. First, substantively, it homes in on one particular, but broadly defined harm: ‘discriminatory treatment’ which encompasses stereotyping, 30 prejudice, 31 marginalization, 32 demeaning, 33 a lack of social inclusion, 34 or the loss of dignity. 35 Such treatment may also affect a person’s deliberative freedoms, 36 capabilities, 37 or autonomy. 38 Although considerable ink has been spilled on isolating which of these harms equality and discrimination law is really about, all of these continue to be reflected strongly in the scholarship. Indeed, pluralist accounts, such as Sandra Fredman’s substantive equality framework, which spans redistributive, recognition, participative and transformative dimensions, see equality and discrimination law as capable of reflecting a wide range of disadvantage, as it materialises in the real world. 39 Significantly, however, all these harms can be identified as flowing from migration law and control.
Migration law affects people’s material wellbeing, sense of belongingness to a community, and perceptions of self and dignity. It also produces a range of participative and structural harms which limit people’s voice and choices. Importantly, these harms are distinct from, but related to, the interests protected in human rights law more broadly, namely, life, security, privacy, health, education, and expression. The fact that the harm of discrimination flows from a certain kind of distinction, or difference in treatment based on a particular ground, distinguishes it from other kinds of injustice. An appreciation of this, separately from and in addition to migration law’s other rights-violating qualities, is necessary to capture the legal wrong, and ensure its remedy.
Second, ‘the form’ of discrimination prohibited in equality and discrimination law is not restricted to that which is explicitly and directly based on certain protected characteristics. It also extends to ‘indirect discrimination’, the unjustifiable disparate impact of a neutral policy, criterion, or practice, on members of a disadvantaged group. For example, while a bar on the immigration of members of a certain faith would constitute direct discrimination on the basis of religion, barring the immigration of people from countries where the majority of people follow that faith may indirectly discriminate on this ground. 40 In the Council of Europe, jurisprudence which broadens the material scope of indirect race discrimination, 41 appears to be creating ‘a whole new range of possibilities to challenge the racial underpinnings of measures, practices and provisions that so far had not been subject to scrutiny’. 42 Prohibitions on discrimination may, therefore, be relied on to challenge the decisions of the border official quoted at the start of this introduction, who directly selected on the basis of skin colour. 43 They may also be used to challenge the apparently race-neutral visa regimes that that border guard is enforcing. 44 The possibility of challenging rules which are broadly, but incorrectly understood to be non-discriminatory, per Christian Joppke’s characterisation of skill-based selection in the second quote given at the start of this introduction, is significant. 45 Such challenges, whether on paper or in litigation, may reveal these rules to be unlawfully discriminatory, including against women, as Catherine Briddick has argued. 46 As discussed, much of the disadvantage experienced by racialized groups and women flows from such apparently neutral migration provisions. Prohibitions of indirect discrimination may, therefore, enable such apparently neutral but actually discriminatory rules to be contested as such. 47
There are a number of limitations on discrimination and equality law’s ability to contest and remedy discriminatory borders. Though substantively broad in one sense, on what constitutes discrimination, the field is narrow in another, in its requirement that one shows direct or indirect discrimination based on certain specified, or analogous characteristics. While the UK’s Equality Act 2010 protects individuals from discrimination on grounds including age, disability and gender reassignment, it does not protect on the basis of refugee or other migration status. 48 This has significant, adverse consequences, as illustrated by the predicament of migrant domestic workers in the UK, who can neither challenge their disadvantageous treatment on these grounds, nor ‘peg it’ to their race/nationality, characteristics that are protected. 49 Furthermore, while some international instruments, such as the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, do contain more expansive lists of grounds, 50 others specifically exempt discrimination based on citizenship. 51 Neither international nor comparative law has established a formal means by which new grounds may be recognised as such. Refugees’ and other migrants’ protection from discrimination on these bases is, therefore, ad hoc; the task of recognising such statuses as grounds one that is resource intensive, requiring litigation, or even the conclusion of new legal instruments. The problem is compounded if the differential treatment complained of is based on more than one ground. As Shreya Atrey has explained, intersectional discrimination, as a form of discrimination, remains an outlier across international and comparative law. 52
Indirect discrimination claims present a separate set of challenges. Evidence of disparate impact may be difficult to obtain, and an apparently neutral rule that can be shown to disadvantage a particular protected group may be justified. On the former, while it is ‘commonplace’ for indirect discrimination to be established on the basis of statistical information, 53 such material is often only available to public authorities and governments. On the latter, when it comes to migration control, national and international courts and tribunals appear to apply particularly low standards of scrutiny to the justifications proffered by states. 54
Identifying and securing a reparative remedy for discriminatory treatment presents a separate set of challenges. For some, levelling-down is an appropriate response to discriminatory treatment, the ‘unavoidable price we must pay to optimize the range of opportunities to which members of protected groups have access…’
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As Denise Réaume explains, however, the fact that claimants do not, generally, see levelling-up and levelling-down as equally attractive, indicates that discrimination law is concerned with something more than ensuring the optimal allocation of opportunities.
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Levelling-down may also be an inapposite, and indeed, potentially unlawful response to the disadvantage discussed here, which is produced by rules which affect or engage a range of human rights. Such approaches, which reflect different theoretical positions on the wrong that discrimination law is concerned with, are reproduced in the jurisprudence. The position of the US Supreme Court, for example, is that ‘when the ‘right invoked is that to equal treatment,’ the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.’
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Costello and Mann have observed that ‘the statist migration control assumption dilutes human rights in many migration-related contexts.’ 59 Discrimination and equality law offers advocates and scholars a means of countering such rights-attenuation, requiring states to justify some of their differential and disadvantageous treatment. More broadly, the field understands as an injustice and seeks to remedy what might be thought to be the very essence of migration control: the (unjustifiable?) distribution of certain mobility and citizenship opportunities by reference to people’s protected characteristics. The potential of discrimination and equality law to transform the position of migrants is in principle, therefore, immense. As the above, brief discussion indicates, the path to realising that potential is not uncomplicated. This Special Issue is dedicated to uncovering and exploring this potential, reflecting on both the possibilities, and the limitations, of invoking the field.
Overview of contributions
The first two contributions to the Special Issue focus on migration law’s discrimination against women, and on the grounds of nationality and race, examining the non-discrimination provisions of key global human rights treaties.
In ‘Unprincipled and Unrealised: CEDAW and Discrimination Experienced in the context of Migration Control’, Catherine Briddick evaluates the standard-setting and jurisprudence of the Committee that monitors the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). 60 Briddick provides an improved understanding of both the content of international prohibitions of discrimination and refoulement, and the means by which the Committee, and other international adjudicative bodies, make decisions applying those prohibitions.
Briddick commences her article with a review of all the Committee’s General Recommendations. Identifying a particular pattern of normative under-development and overreach, she argues that the Committee’s adoption of unreasoned and expansive recommendations leaves women, who have been disadvantaged by migration law, without the legal tools necessary to challenge it. Briddick then examines the Committee’s application of those obligations it has delineated to states, reviewing individual complaints brought under the Convention’s Optional Protocol. A detailed analysis of the jurisprudence grounds her conclusion that the Committee is, in practice, according states a margin of appreciation that varies considerably according to the subject of the complaint. Using a series of representative communications, she argues that the margin granted, where states’ migration controls are challenged, is over-wide, characteristic not of appropriate (quasi) judicial restraint, but unprincipled deference. Briddick concludes by discussing how the different shortcomings she identifies could be remedied, including by encouraging the Committee to formulate, and apply, its own justification and proportionality analysis.
In ‘(Some) Refugees Welcome: When is Differentiating between Refugees Unlawful Discrimination?’, Cathryn Costello and Michelle Foster focus on race and nationality discrimination, exploring their links, and examining a range of practices in the global refugee regime that treat refugees from different countries radically differently.
The global refugee regime has long been pervaded both by stark differences in treatment on grounds of nationality, and deeply racialized practices. Yet until relatively recently, treatment that has been characterised as being or involving racial discrimination, has not been subjected to legal scrutiny on these grounds. This timely and original article corrects this omission. Through a careful analysis of general non-discrimination norms, Costello and Foster demonstrate that the prohibition of race discrimination protects refugees from a wide range of differential and disadvantageous treatment. The authors then proceed to examine a central, but rarely considered provision, the prohibition on discrimination set out in article 3 of the Refugee Convention, focussing their analysis on the protected ground of ‘country of origin’. 61 The authors examine article 3’s potential on its own terms, as well as demonstrating that the application of non-discrimination norms in general human rights treaties to refugees can be guided by the standards set in the Refugee Convention. While recognising the limits of anti-discrimination norms, Costello and Foster suggest new lines of argumentation, adjudicatory reasoning and research on issues of legal and practical significance to both refugees and the international protection regime.
In ‘Non-discrimination and Special Protection for Migrants and Refugees: Luisa Feline Freier, Valeria Aron Said and Diego Quesada Nicoli engage in a comparative quantitative analysis of immigration and refugee laws and regulations in 20 Latin American countries. As the authors explain, countries within the region have both liberalised their migration regimes, and provided increased protection from discrimination. Their study charts how discriminatory provisions in states’ immigration laws were repealed and replaced with comprehensive non-discrimination provisions and special protection clauses. While rights-restriction, deterrence and externalisation have been adopted by some countries and regions, this research demonstrates that these trends have been resisted by others, offering an important counter-point to literature that focuses solely on migration control in the ‘global north’. This study of liberalisation coupled with non-discrimination shows that other routes and trajectories are available to states, including in the context of significant levels of migration, notably, the exodus from Venezuela. The study also affirms the positive role that regional courts can play in the protection of migrants’ rights, as sexual orientation and gender identity, grounds established by the Inter-American Court of Human Rights, are shown to be incorporated into domestic legislative frameworks.
The final two articles focus on denationalisation in Europe and India. Significantly, they both highlight forms of intersectional racial and religious discrimination (and potentially, persecution) that render those who are Muslim, who are perceived to be Muslim, and/or who are racialized as such, at greater risk of nationality loss.
In ‘The Dichotomy within Denationalisation: Perpetuating or Emancipating from its Discriminatory Past?’, Christian Prener evaluates widely-used denationalisation practices that strip certain dual nationals of their citizenship. Rooting his compelling and comprehensive analysis in theorising on citizenship and discrimination, as well as the prohibition on discrimination found in the European Convention on Human Rights (ECHR), 62 Prener subjects to scrutiny legal and political justifications for the differential treatment of mono and dual nationals. While denationalisation provisions that affect those who have more than one nationality may be explained by reference to legal obligations to prevent statelessness, such obligations do not, in Prener’s view, justify those provisions, legally or morally. Other ‘justifications’, including those concerned with national security, the need to ‘fight terrorism’ or ensure citizens’ loyalty, are also considered, and rejected. Denationalisation provisions targeting dual nationals are, consequently, impugned as indirectly discriminatory, including on ethnic, racial, and/or religious grounds. In addition, Prener contends that by dividing people into the ‘always belong’ and the ‘almost belong’, such provisions are also fundamentally incompatible with liberal conceptions of citizenship and equality.
Finally, in ‘Denationalisation and Discrimination in Postcolonial India’, Sumedha Choudhury examines the history, law and legal processes that have generated what may be one of the world’s largest stateless populations. Choudhury traces patterns of othering in India, from colonially-ruled Assam to the present day, explaining how colonially-rooted binaries of belonging and non-belonging provide the foundation for, and shape contemporary practices of, discriminatory denationalisation.
Choudhury takes as her focus the National Register of Citizens (NRC) updating process in Assam, and the Citizenship Amendment Act 2019. She explains how colonial policies of ‘divide and rule’, the violence and devastation of partition, and nation-building in the post-colonial state, have generated a conception of the citizen which operates primarily along Hindu majoritarian lines. Choudhury foregrounds the role of law in creating, retaining, and re-establishing certain groups of ‘others’, demonstrating how the legislation and jurisprudence she examines embeds colonial legacies within the architecture of the post-colonial state. In an illuminating analysis of the Supreme Court’s role in the NRC updating process, Choudhury analyses case law doctrinally and qualitatively, using it as a source of information about the discriminatory attitudes elites hold towards the members of minority groups. The material consequences of such discrimination on those who are unable to prove their ‘belonging’, consequences which include statelessness, and potentially indefinite detention, are discussed. Significantly, so too are the consequences for religious minorities outside of India, who may be denied international protection and citizenship, on the same discriminatory bases. Choudhury’s final thoughts provide an apt ending to both her work, and the Special Issue as a whole. Law, she concludes, is ‘double-edged’. It enables subjugation, but it also holds the possibility of emancipation.
Conclusions
Notwithstanding both the multiplicity and ubiquity of legal prohibitions and political condemnations, unlawful discrimination is, in many parts of the world, a pervasive and potentially the defining feature of border control. This Special Issue contributes to an emerging body of scholarship that evaluates discrimination and equality law’s ability to contest such treatment. 63
The articles selected confront forms of discrimination, including violence against women, and racial and religious discrimination and persecution, that are significant and enduring, both in, and out, of the migration control context. The articles are also extremely timely, addressing legal regimes that determine the rights and predicaments of those forcibly displaced from Venezuela and Ukraine, and those who have been denationalised in India.
These articles also demonstrate the value of interdisciplinary scholarship. Luisa Feline Freier, Valeria Aron Said and Diego Quesada Nicoli offer legal scholars and practitioners an improved understanding of migration regulation within and across 20 states, including by charting those states’ responses to the jurisprudence of the Inter-American Court of Human Rights. Prener’s assessment of justifications for denationalisation that span law and ethics provides a richer understanding of the wrong of denationalisation, regardless of context. His interdisciplinary approach produces a nuanced and compelling analysis of both legitimate ends and proportionality, considerations of which are often simplistic, or incomplete. Work that focuses on particular legal instruments, and securing what may be seen as fairly limited rights on a non-discriminatory basis, may be criticised for falling ‘into a liberal politics of recognition [of status or rights] that fails to challenge the law’s embodiment of colonial violence.’ 64 Choudhury’s integration of doctrinal, historical, and post-colonial analyses is responsive to such criticisms, while also providing a sophisticated analysis of legislation and jurisprudence that legal scholars, and others, will find highly compelling.
Two of the articles identify significant normative gaps at the international level. Briddick, and then Costello and Foster, identify a number of areas where important issues of interpretation have been left unresolved by UN treaty bodies. While addressing distinct grounds of discrimination, these contributions draw similar conclusions regarding the failure of those bodies to articulate the scope of non-discrimination norms in the context of migration and international protection. A common theme is the need for a more robust approach to, and analysis of, justification and proportionality. Briddick calls on the CEDAW Committee to articulate how discrimination against women may be established, doctrinally and empirically. Doing so would, she explains, enable the Committee to apply all its recommendations robustly, drawing, where necessary, on a justification and proportionality assessment, rather than the political and other considerations that inform the adoption of a margin of appreciation. Costello and Foster provide a coherent justification and method of reasoning to counter the ‘migration exceptionalism’ of the International Convention on the Elimination of All Forms of Racial Discrimination, 65 as well as exploring a re-centring of article 3 of the Refugee Convention. Both contributions provoke international adjudicators to confront, rather than ignore, the complexity of non-discrimination and migration/protection.
Two of the contributions are notable in evaluating regimes and decisions that are (more) protective of migrants’ and refugees’ rights. Latin American states’ liberalisation with non-discrimination offers an alternative to countries which, like the UK, discriminate against, penalise, and even criminalise some protection-seekers. 66 The cumulative effect of the legal regime that has emerged in the EU to respond to people fleeing Ukraine places these refugees at a considerable advantage, when compared to other protection-seekers. Costello and Foster suggest that non-discrimination norms cannot be straightforwardly applied to this differential treatment. Their analysis explores the limitations of discrimination law-based approaches which analyse distinctive measures one-by-one, arguing that such an approach is unlikely to provide remedies in this context.
While much of this Special Issue’s critique is directed to adjudicators, we understand many of the contributions to be calling for more creativity in general, including from lawyers and scholars. Protections from discrimination, and of equality, are enshrined in a range of human rights instruments. Yet equality remains ‘an unfulfilled promise in the field of immigration.’ 67 Changing this requires immigration and refugee lawyers to bring cogent and thoughtful submissions before adjudicatory bodies. Scholarship, like that discussed here, can inform such litigation, providing doctrinally rigorous and theoretically informed argument and inspiration to lawyers and decision-makers.
Those seeking to challenge discriminatory treatment need to have the material and legal resources to engage in adjudicative processes that may be complex and lengthy. We understand that the practical, evidential, and doctrinal barriers confronted by those who seek to challenge their disadvantageous treatment are considerable, and may be insurmountable for those with an insecure migration status. We also acknowledge that scholarship and litigation are not the only means by which discrimination, experienced in the context of migration control, may be contested. The disadvantage that migration law and control produces may only be redressed, and migration law itself transformed, through concerted and collaborative action that takes place at a number of different sites, and at a variety of legal and institutional levels. Notwithstanding these and other limitations and omissions, the articles we present in this Special Issue represent one important contribution to this effort.