Discrimination based on immigration status under the ECHR: Navigating between the factual versus the normative and the comparison-based versus the minimum-based treatment

Abstract

Immigration status as a ground of making distinctions that might be in violation of the right to non-discrimination, is conceptually underdeveloped. This gap is addressed by explaining how the European Court of Human Rights has chosen to use arguments shaped by factual and legal/normative elements to reason under Article 14 of the European Convention on Human Rights. One such argument concerns the usage of the ‘but for’ test for determining whether the basis for distinctions is immigration status. Another argument is that immigration status is a matter of choice. The role of legal and factual elements in the comparability stage of the anti-discrimination analysis is also explained and illustrated with reference to the two recent ECtHR judgments: M.T. and Others v Sweden that concerned family reunification and X and Others v Ireland that concerned child benefits.

Introduction

Non-discrimination has had a marginal role in debates about harm produced for immigration control related reasons. ¹ The right to non-discrimination has not been much litigated as a basis for challenging limitations of migrants’ rights, non-extension of benefits, or less favourable treatment. ² Admittedly, the relatively fringe role of the right to non-discrimination is of more general nature since Article 14 of the European Convention on Human Rights (ECHR) tends to be in principle neglected when the harm invoked can be addressed via the substantive provisions of the Convention. ³ Yet, it is worthwhile to investigate the role of non-discrimination in the migration context since making distinctions between different categories of migrants is a structural feature of international law, EU law and national law. These legal frameworks articulate various categories of migrants, draw multiple distinctions between the different categories and use these distinctions as a basis for limitations and extension of different benefits and affording different treatment. The labels given to the different categories and thus the framing of the basis for the differentiated treatment, also varies across the different legal frameworks. One basis on which these distinctions has been made can be generally framed as immigration status. Immigration status as a ground of making distinctions that might be in violation of the right to non-discrimination, is conceptually underdeveloped. ⁴

The objective of this article is to address this gap by explaining arguments and choices in the reasoning developed under Article 14 of the ECHR concerning immigration status as a discrimination basis. To do this, I turn first to the practice of the European Court of Human Rights under Article 14 ECHR to explain that factual and normative (i.e. legal) elements are instrumental in the determination whether immigration status is the selected basis on which distinctions have been made. The meaning ascribed to these elements (factual vs legal) is also clarified. Two key points emerge from the analysis of immigration status as ‘other status’ under Article 14 of the ECHR. The first one concerns the role of the ‘but for’ test for determining whether the precise basis for distinctions is immigration status. The second one concerns the understanding that immigration status is a matter of choice. The article then continues to examine the role of legal or factual elements in the comparability stage of the anti-discrimination analysis. It does this with reference to the two recent ECtHR judgments: M.T. and Others v Sweden ⁵ that concerned family reunification and X and Others v Ireland ⁶ that concerned child benefits. This choice of judgments is justified below. These judgments are used for illustrating how different choices of factual and/or legal elements are possible in the reasoning and how these choices affect the question of comparability. Comparability as a tool of reasoning is relegated and what ultimately matters is whether migrants are afforded some minimum level of treatment to be protected from severe forms of harm.

A terminological clarification is due from the outset. Throughout the following text, I use the terms ‘treatment’, ‘benefit’, ⁷ ‘harm’, ‘interests’, ‘harm to important interests’ and ‘rights’. To avoid confusion, it is relevant to explain that if a benefit is not extended, this is a form of treatment, which harms the individual’s interests. These interests are protected by human rights law. However, this does not necessary amount to a violation of human rights law and therefore to a violation of a human right. This usage of terminology follows the ECtHR’s approach according to which an infringement upon interests as protected by the ECHR (i.e. the harm that the person complains of), does not amount to a violation of the ECHR. ⁸ The references to the importance of the interests at stake should be interpreted as pointing to the severity of the harm suffered by the person.

Finally, a methodological note is due concerning the selection of ECtHR judgments. Based on searches in the HUDOC database done in at the end of July 2024, the following eight cases were identified as decided under Article 14 and immigration status invoked as the relevant discrimination ground: X and Others v Ireland, M.T. and Others v Sweden, Hode and Abdi v the United Kingdom, ⁹ Bah v the United Kingdom, ¹⁰ Ponomaryovi v Bulgaria, ¹¹ Anakomba Yula v Belgium, ¹² Niedzwiecki v Germany ¹³ and Okpisz v Germany. ¹⁴ These judgments are used in the forthcoming analysis as references, although a detailed analysis is only offered of X and Others v Ireland and M.T. and Others v Sweden, the two most recent ones at the time of writing. The references to the other judgments are used to contextualize and better understand X and Others v Ireland and M.T. and Others v Sweden.

The choice of these two judgments can be also justified in light of their subject matter. M.T. and Others v Sweden as a family reunification case raises issues about access to territory (i.e. allowing a migrant the benefit to enter), where generally States are assumed to have wider discretion. X and Others v Ireland raises issues about benefits once migrants are within the territory. ¹⁵

Additional searches were performed at the end of July in HUDOC to discover cases, including communicated cases and admissibility decisions that relate to migration and that refer to X and Others v Ireland and M.T. and Others v Sweden. The reason was to better understand how they have been subsequently used by the Court and check whether they might have been clarified in some relevant ways in decisions. The results from these searches were the following. M.T. and Others v Sweden has been referred to two judgments related to migration: Dabo v Sweden and B.F. and Others v Switzerland, and in the decision of Mohamad v Sweden. ¹⁶ While, the latter was declared inadmissibility, in neither Dabo v Sweden nor B.F. and Others v Switzerland did the Court choose to engage with Article 14. X and Others v Ireland has not been referred to in any judgments so far. It was, however, used in A and B v Ireland ¹⁷ and Odu v Ireland to declare the applications inadmissible. ¹⁸ No pending communicated cases were found that referred to X and Others v Ireland.

Additional searches were also performed to better understand the wider impact of the above-mentioned eight cases that were decided under Article 14 ECHR where immigration status was invoked. The search for references in judgments, decisions and communicated cases concerning migration to Hode and Abdi v the United Kingdom, a judgment where Article 14 in conjunction with Article 8 was found violated, showed that this specific case has had very little impact. ¹⁹ The same conclusion can be made regarding Bah v the United Kingdom, ²⁰ a judgment where no violation was found, and Anakomba Yula v Belgium, where violation was found. ²¹ A search for Niedzwiecki v Germany rendered no migration-related results. Ponomaryovi v Bulgaria was referred to in X and Others v Ireland. The search in HUDOC for references to Ponomaryovi v Bulgaria rendered no judgments related to migration, no decisions related to migration and no communicated cases.

This overview suggests that the role of Article 14 ECHR in the migration context has been relatively limited due to the limited number of migration related judgments and decisions. The eights cases mentioned above are therefore sufficiently representative to allow understanding and explaining the arguments used by the Court under Article 14, although changes can be expected as (and if) more judgments are delivered. The overview of the case law also further justifies the strong focus in this article on X and Others v Ireland and M.T. and Others v Sweden, as being the most recent judgments.

Immigration status as ‘other status’ in the discrimination analysis

International law, regional law and national law have created multiple distinctions between nationals and non-nationals and between different categories of non-nationals (migrants). For example, the logic of the Refugee Convention in terms of the treatment due is inherently based on distinctions. ²² In this sense, the distinctions themselves, their basis and the treatment due are concrete and explicit. Much more importantly, the comparability between the different groups is not questioned, and the proportionality of the difference in treatment is assumed by the specific provisions of the Refugee Convention. Examples from other legal frameworks, including EU law, can be also offered. ²³ In contrast, human rights manifest generosity and high level of abstractness concerning the treatment due (i.e. the protected interests) and the basis (i.e. the various grounds mentioned in Article 14 of the ECHR) on which lesser protection of these interests (i.e. less favourable treatment) might be considered discriminatory. This generosity and abstractness imply that that the precise basis for any distinctions and the comparability between groups needs to be initially established in the reasoning of the decision-making body (i.e. the ECtHR). While below I will address the comparability question, this Section aims to clarify how immigration status, as opposed to other bases/grounds for making distinctions, has been considered as ‘other status’ under Article 14 ECHR and thus, as the precise chosen basis for distinctions. While the question of proportionality is touched upon below, it falls outside the limits of this specific article.

Two key points emerge from the analysis as to how immigration status has been interpreted as ‘other status’. The first one concerns the role of the ‘but for’ test for determining whether the precise basis for distinctions is ‘immigration status’. The second one concerns the perception that immigration status is a matter of personal choice. The guiding question in this Section is how legal and factual elements are used by the Court in the application of the ‘but for’ test and for assessing characteristics as being a matter of personal choice rather than being immutable. Factual elements more generally refer to the actual reality, including the actual harm suffered by the person. Legal elements refer to conditions and requirements regulated by relevant laws. ²⁴

The ‘but for’ test

Pursuant to Article 14 of the ECHR, the rights in the Convention ‘shall be secured without discrimination on any ground.’ The provision enumerates certain grounds as examples and adds ‘other status’ as another ground. The Court has also established in its case-law that ‘only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14’. ²⁵ In the context of Article 14, therefore, ‘status’ refers to the ground (i.e. the ‘identifiable characteristic’) of the difference in treatment.

‘Other status’ has an open-ended meaning. This implies that various distinctions that might be possible to make with reference to different ‘identifiable characteristics’ can be covered by the non-discrimination provision. ²⁶ The ECtHR has recognised that immigration status can amount to ‘other status’ within the meaning of Article 14. ²⁷ Immigration status is therefore ‘an identifiable characteristic’ which, once used as a ground for making distinctions, it is possible to challenge these distinctions as amounting to discrimination within the meaning of Article 14 ECHR. ²⁸ In X and Others v Ireland, for example, the Court explicitly noted that ‘such a ground – residence/immigration status’ comes under the term ‘other status’ within the meaning of Article 14. ²⁹

Given that X and Others v Ireland has an important role in the forthcoming analysis, it is relevant to first briefly describe the facts. In X and Others v Ireland, the applicants were two mothers X. and Y. The first one was originally from Nigeria; after having her asylum application rejected, she applied for the right to reside in Ireland on the basis of being a mother of an Irish citizen child. While this application was pending, X. also applied for child benefit in respect of her child. The child benefit application was rejected since the mother did not satisfy the condition of habitual residence in Ireland. The other applicant Y. had a similar story. She originally came from Afghanistan. Her application for benefits in respect of her four children was rejected since Y. did not satisfy the condition of habitual residence in Ireland. Both women’s applications for child benefits were eventually granted once satisfying the condition. Before the ECtHR, the applicants contended that they were discriminated against in the basis of the specific nature of their residence status. To review their claim, the Court applied Article 14 in conjunction with Article 1 of Protocol 1 (the right to property) by accepting that the national legislation providing for the payment as of right of a welfare benefit must be regarded as ‘generating a propriety interest. ³⁰ No violation was found, however, since the applicants’ situation did not ‘place them in a relatively similar situation to persons who already had the status of legal resident in Ireland.’ ³¹ The requirement for comparability that, according to the ECtHR was not met in X and Others v Ireland, will be addressed in detail below. Here the focus is on the framing of the basis of the distinction.

In X and Others v Ireland, the Court invoked the test for determining whether indeed the distinction is based on immigration status:

[…] where an applicant complains that he or she has been denied a particular benefit on a discrimination ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had an enforceable right to receive the benefit in question. ³²

In X and Others v Ireland, the ‘but for’ test was fulfilled since but for the applicants’ specific immigration status (i.e. lawfully present, but not with habitual residence), they would have been entitled to child benefits. This ‘but for’ test has not been invoked prior to X and Others v Ireland in past ECtHR cases where distinctions based on immigration status have been challenged. ³³ Neither does the test have wider relevance in the anti-discrimination case law of the Court. The mere presence of causes for the differentiated treatment (i.e. the disadvantage) other than the specifically invoked discrimination ground, does not normally invalidate the invoked ground. ³⁴ In this sense, therefore X and Others v Ireland could be viewed as an aberration, whose relevance might be limited to eligibility to benefits for different groups of migrants.

The ‘but for’ test used in X and Others v Ireland is reminiscent of the test of exclusivity invoked in Gaygusuz v Austria. In this case, a person with Turkish nationality was denied unemployment emergency assistance in Austria, where he had been a legal resident and paid contributions to the unemployment insurance fund. The sole basis for the denial was that he did not have an Austrian nationality. Most importantly, in Gaygusuz v Austria, the Court held that ‘very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention’. ³⁵ The test of exclusivity was of key role for finding a breach of Article 14 in Gaygusuz v Austria. However, more generally, given the multiple conditionalities for receiving benefits, the test is difficult to meet. ³⁶ In other words, since there are various requirements for eligibility, nationality rarely directly and exclusively constitutes a conditionality. ³⁷

Admittedly, migrants as non-nationals in practice are less likely to fulfill the preconditions for benefiting from social schemes. This is so for the following reason. Even though many migrants might fulfill the preconditions and be eligible, as Slingenberg has observed

this eligibility is for all non-nationals conditional upon the fulfillment of an additional criterion [e.g. lawful stay/presence, residence permit or a certain type of residence permit], whereas for nationals, the fulfillment of this criterion is necessary and automatically linked to their nationality. ³⁸

In light of these conditionalities, nationality could be viewed as the pertinent discrimination ground. Yet, for certain schemes nationals might also have to fulfill certain residence requirements, ³⁹ not in the form of residence permits, but for example, in the form of physical residence or certain length of residence. This weakens the argument that nationality might be the relevant discrimination ground (if the exclusivity test is to be applied) and furthers the argument that it might rather be distinctions (e.g. type of residence permit, lawful stay) that, can be rather understood as distinctions based on ‘immigration status’.

Going back to X and Others v Ireland, it is important to highlight that similarly to the exclusivity test used in Gaygusuz v Austria, the ‘but for’ test restricts the circumstances where it can be claimed that distinctions were specifically and exclusively based on immigration status. The reason is that the ‘but for’ test implies an exclusive causation between the ground (i.e. ‘immigration status’) and the treatment (i.e. denial of benefit). Given the multiple conditionalities for receiving benefits, such exclusivity might be difficult to demonstrate. Relatedly, the ‘but for’ test is underpinned by legal elements since the determinative question is whether the law has made the specific condition (e.g. the specific type of residence permit held by the migrant) necessary.

The difficult to meet exclusivity test might be easier to justify in relationship to nationality since the latter is considered a suspect ground. Immigration status is not. As the next section will explain, since immigration status is not a suspect ground, a lower level of scrutiny is applied in the assessment of the distinctions. The ‘but for’ test in turn might preclude any scrutiny if the strict causation between, on the one hand, the specific ground of immigration status and, on the other, the treatment cannot be established. ⁴⁰

Immigration status as a matter of choice

The ground on which discrimination is alleged is important since it affects the level of scrutiny with which any distinctions are assessed. ⁴¹ A strict review is applied to suspect discrimination grounds that ‘relate to innate personal characteristics or core choices that have a significant influence on a person’s identity and existence.’ ⁴² Distinctions based on immigration status, when this status is perceived as being a matter of choice, might not need weighty reasons to be justified as opposed to distinctions based on innate and immutable characteristics. ⁴³ The human rights review is accordingly seriously affected by the evaluation of the characteristic (i.e. the status i.e. the ground for the distinction) as being one of choice. An important question therefore is whether immigration status is or can be a matter of choice. This question brings us back to the role of legal and factual elements.

In Bah v United Kingdom, the Court addressed this question by introducing some relevant distinctions. In this case, the applicant’s son was legally admitted to the country with conditional leave to remain, which implied that he was not permanently admitted but was subject to immigration control. The condition attached to his status was not to have recourse to public funds. Based on her son’s conditional immigration status, the applicant and her son were denied priority housing. The ECtHR found that the distinction was justifiable and therefore not in violation of Article 14 of the ECHR. To reach this conclusion, the Court clarified that ‘other statuses’ in the sense of Article 14 could be ‘personal’ and ‘not personal’. ⁴⁴ A ‘personal’ status is based on characteristics that are ‘immutable or innate to the person’ and that are ‘inherent to the individual.’ ⁴⁵ ‘Not personal’ status was not explicitly defined in the text of Bah v United Kingdom; however, given the definition of ‘personal status’, the former can be understood as being based on mutable characterises (i.e. characteristics that the person can change and are therefore a matter of choice).

In Bah v United Kingdom, the Court also used the term ‘legal status’ i.e. ‘conferred by law’ and i.e. not ‘inherent to the individual’, which would suggest that it is not personal. How does immigration status fit within these distinctions? In Bah v United Kingdom, the Court noted that ‘immigration status where it does not entail, for example, refugee status, involves an element of choice, in that it frequently applies to a person who has chosen to reside in a country of which they are not a national.’ ⁴⁶ The Court also qualified immigration status as ‘status conferred by law, rather than one which is inherent to the individual.’ It also immediately added that ‘a wide range of legal and other effects flow from a person’s immigration status.’ ⁴⁷ The latter statement is important since it refers to the significance of the interests at stake, which as Iwill explain below is an important factual element. Here it is relevant to underscore that the statement in Bah v United Kingdom that highlights the wide range of effects that flow from the immigration status, is also an implicit acknowledgment that although individuals might have chosen which country to migrate to, they might have little choice and little control over the effects from the legal status conferred. ⁴⁸

Going back to the issue of choice and the role of choice in immigration status, if the status is based on refugee status, it is recognized that the status does not entail ‘an element of choice’. However, the expression ‘an element of choice’ also demonstrates that the Court’s reasoning accepts the proposition that choice is not a strict binary. Some elements of the status might reflect an element of choice (i.e. factual element); others might not (i.e. legal element since it is the host state’s legislation that determines the conditionalities). Choice and immutability are therefore nuanced, dependent on the overall context. They are a matter of degrees. Yet, when it comes to immigration status’ the starting point seems to be that it is at the far end of the side of the spectrum where choice is assumed, and immutability rejected. If the immigration status is based on the conferral of refugee status, though, we move to other side of the spectrum. ⁴⁹

Comparability

Having explained the discrimination ground of immigration status and how its framing by the Court can navigate between factual/choice-driven and immutable characteristics, this section focuses on the question of comparability. Comparability is ‘the logical precondition for engaging in the exercise of examining the justification for a difference in treatment.’ ⁵⁰ The Court has held that ‘in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relatively similar, situations.’ ⁵¹ The ECtHR has added that ‘the elements that characterise different situations, and determine their comparability, must be assessed in the light of the subject matter and purpose of the measure that makes the distinction in question.’ ⁵² Along similar lines, the Court has also held that the ‘legal and factual elements’ that characterise the circumstances in the particular context and that enable the answer to the question on comparability, ‘must be assessed in the light of the subject matter and purpose of the measures which makes the distinction in question and the context in which this measures is imposed.’ ⁵³ The Court has further stated that ‘[i]n assessing the comparability of situations, it is appropriate to consider them in their totality and to avoid singling out marginal aspects, which would lead to an artificial analysis.’ ⁵⁴

There are two considerations that emerge from these statements. The first one pertains to the legal and factual elements that characterise different situations. The second one pertains to the purpose and the context of the measures that allow to be considered in their totality.

Let’s look at each of these two considerations as applied in M.T. and others v Sweden and X and Others v Ireland. The facts of the latter case were already described above. Only brief outline of the facts in M.T. and others v Sweden is therefore due here. The case concerned the refusal by the Swedish authorities to grant residence permits (and in this sense, an authorisation to legally enter Sweden) to a mother and her son, who were in Syria. They applied for the permits on the basis of their family ties with their sponsor (respectively their son and brother). The sponsor who was in Sweden was granted subsidiary protection status. According to the national legislation valid at the time, the entitlement to family reunification of beneficiaries of subsidiary was suspended. This treatment was in contrast to the treatment afforded to the beneficiaries of refugee status, who as per the relevant legal definitions were granted protection on the basis of individualized risk of persecution, rather than general risks. ⁵⁵ This difference in treatment between the two groups: subsidiary protection beneficiaries and refugees, regarding the possibility of family reunification, made Article 14 of the ECHR relevant in M.T. and others v Sweden. After proceeding under the assumption that the two groups are comparable, the Court concluded that the less favourable treatment of the first group was proportionate.

The ‘legal and factual’ elements characterising situations

Which ‘legal and factual elements’ that characterise the respective situations were considered relevant in M.T. and others v Sweden and X and Others v Ireland to address the comparability? This is an important question since the acceptance or the rejection of certain ‘elements’ as relevant can be instrumental in deciding whether the situations are comparable and what treatment is due. ⁵⁶ Let us see how this choice of elements is performed by the Court in M.T. and Others v Sweden and in X and Others v Ireland.

M.T. and others v Sweden: dominance of the ‘legal element’

The Court in M.T. and Others v Sweden explicitly identified the factual and the legal elements that characterized the situations and determined their comparability. ⁵⁷ The factual elements were two: first, ‘historical events [that] do support the argument that persons who flee a general situation [i.e. the beneficiaries of subsidiary protection] may generally have a more ‘temporary’ need for protection’; ⁵⁸ and second, the number of persons fleeing a general situation ‘is usually very high within a short period of time’. ⁵⁹ In sum, according to the Court’s reasoning temporary need of protection and high numbers were relevant facts that distinguish people in need of subsidiary protection in comparison to refugees.

The legal elements that the Court chose to highlight in M.T. and Others v Sweden to characterise the distinction were four. First, there were different procedures for granting protection, whereby refugees face higher evidential difficulties to demonstrate personal risk in comparison with the other category (i.e. the beneficiaries of subsidiary protection). ⁶⁰ Second, the EU Family Reunification Directive applied only to refugees and not to beneficiaries of subsidiary protection. ⁶¹ Third, the provision in the EU Qualification Directive regarding family unity applied only to ‘family members’ who were present in the same member State. ⁶² Finally, the EU Temporary Protection Directive also incorporated a distinction whereby the right to family reunification of beneficiaries of temporary protection was more limited in comparison with the same right as afforded to refugees under the terms of the EU Family Reunification Directive. ⁶³

The Court observed in M.T. and Others v Sweden that these six elements (two factual and four legal) favour the conclusion that ‘persons fleeing a general situation in their country of origin are not in a situation i.e. analogous or relatively similar to that of refugees as regards the need for family reunification. ⁶⁴ The Court’s choice of the relevant elements is, however, already determinative of the type of substantive treatment due to the disadvantaged group. This is most powerful in relation to the second legal element regarding the limited personal scope of application of the EU Family Reunification Directive. It needs to be also acknowledged that the law already embodies certain legal distinctions; there is therefore certain circularity in allowing these legal distinctions to be germane in the choices within the human rights law review as to which distinctions are relevant. ⁶⁵ To avoid such circularity, the legal element (i.e. the more beneficial conditions for family reunification as demanded by the EU Family Reunification Directive) should not have been made relevant in the comparability test. This legal element exists in the first place due to a presumption of incomparability embedded in the law, specifically in EU law and its implementation at the national level. In contrast, the human rights law review is meant to scrutinise such presumptions. It then follows that the circularity also undermines the rationale of the scrutiny.

The elements chosen for determining comparability could have been different, as the Court itself recognised in M.T. and Others v Sweden. The element for determining comparability could be exclusively factual and framed as ‘obstacle preventing them [the beneficiaries of subsidiary protection] and their family from enjoying family life in their country of origin for as long as the risk was present.’ ⁶⁶ If this element were to be chosen, the disadvantaged group could be viewed as being in situation i.e. ‘analogous or relevantly similar’ to that of the advantaged group (i.e. those with refugee status).

X and others v Ireland: dominance of the ‘legal element’

In contrast to M.T. and Other v Sweden, where the Court considered different choices of different legal and factual elements to assess comparability, the Court in X and Others v Ireland started with the choices already made by the domestic court. The choice of the Supreme Court in Ireland, being ‘in principle best placed to assess […] whether or not several persons or several categories of persons are in [analogous or relevant similar] situations’ was not in any way challenged. ⁶⁷ It followed that the Court simply accepted the outcome of the domestic court’s assessment: since the applicants did not have ‘a status akin to that of legal residence’, they were ‘not in a relatively similar position, in terms of legal status, to her chosen comparators, i.e., parents with a legal right to reside in Ireland.’ ⁶⁸ The acceptance of this outcome aligns with the ‘procedural turn’ in the Court’s case law, whereby national authorities’ assessments are upheld unless significant procedural errors are identified in the decision-making process. ⁶⁹

This acceptance of the outcome of the domestic court’s assessment meant that in X and Others v Ireland parents with legal residence were explicitly rejected as a relevant comparator. As a next step in its reasoning, the Court continued to ask whether there might be ‘some other basis’ on which the applicants were in a similar situation to ‘persons enjoying a right of residence in Ireland’. In particular, the Court enquired

whether the applicants can claim, on some other basis, to be in a relevantly similar position to persons enjoying a right of residence in Ireland, taking into account the legal and factual elements that characterizes their circumstances in the particular context. ⁷⁰

Other basis than what? The basis for comparability rejected was ‘legal status’. But what is this other basis mentioned in the above-quoted paragraph 95. This was not made explicit in the text; but it could be implied that there were relevant factual elements (e.g. both groups had children and both groups physically resided in Ireland) that might support an understanding that they are in an analogous situation.

In X and Others v Ireland regarding the relevant elements, the Court noted:

The subject-matter at issue in this case is entitlement to a universal (i.e., non-means tested) statutory social welfare benefit payable to all parents who satisfy the eligibility criteria, including the criterion of residence, which has a legal element (right to reside) and a factual element (habitual residence). ⁷¹

The legal element of lawful residence was ‘a necessary corollary of the essentially national character of social security systems.’ ⁷² Notably, however, it was not the fact of actual residence on the territory that mattered, but the qualification of this residence as ‘legal residence’ as legally different from ‘lawful presence.’ It then follows that the right to reside that implied lawful residence, as opposed to mere lawful presence, was the relevant legal element for assessing comparability in X and Others v Ireland. However, it is exactly on this basis that the applicants argued that they were discriminated against. This leads to a certain degree of circularity in the judgment: lawful residence was the alleged ground for discrimination and, at the same time, the Court invoked it and used it as the relevant element for assessing the comparability in the reasoning. The circularity is only partial since a factual element (i.e. habitual residence) was also registered in the reasoning as relevant for assessing the comparability. However, this element was not given any weight. Neither was it actually clarified what ‘habitual residence’ might mean.

The purpose and the context

In addition to the legal and factual elements that the Court might chose to frame as parts of its comparability analysis, the Court takes account of the purpose of the measures that arguably harmed the applicants and their context. Let us see how the purpose and the context of the arguably discriminatory measures were invoked and used by the Court in M.T. and Others v Sweden and in X and Others v Ireland.

M.T. and others v Sweden: the comparator matters little

In M.T. and Others v Sweden, the Court observed that ‘[the] purpose of the measure that makes the distinction in question’ had to be taken into account. ⁷³ The purpose was regulating the conditions under which family reunification would be allowed. The Court in particular stated that the question whether the applicant with subsidiary protection status was in a situation that was analogous or relevantly similar to that of persons with refugee status,

cannot be answered in abstract or in general, but has to be assessed on the basis of the specific circumstances of the case and in particular with regard to the right invoked – in this case, the right to family reunification. ⁷⁴

It then follows that in some respects the two groups of migrants might be in similar situations, while in other situations not. ⁷⁵ The Court reasoned that what matters was whether they were in similar situations specifically with regard to the substantive benefit invoked, which is family reunification. Notably, this reasoning aligns with other legal frameworks regulating migration and more specifically with the proposition, that in relationship to some benefits, the treatment afforded should be the same as afforded to some other groups. In relationship to other benefits, other groups are the relevant comparators. ⁷⁶

The narrowing down of the analysis to the question as to whether the two groups were in a similar situation exclusively in relationship to the specific substantive benefit’ invoked (i.e. family reunification) was not enough. In M.T. and Others v Sweden the Court chose to further reduce the level of abstractness. It held that

[the] Court is of the view that the question cannot be answered in general in respect of the right to family reunification. If the Court were to find in general that persons with ‘subsidiary protection’ were not in an analogous or relevantly similar situation to that of persons with ‘refugee status’ with respect to family reunification, that would not take sufficient account of the duration of an imposed suspension period. ⁷⁷

What matters then was the gravity of the harm on its own terms, which in M.T. and Others v Sweden was the duration of the suspension period. This is further supported in the following statement that trails the above quotation: ‘the core of the issue is not the imposition of a suspension as such, but the length of the suspension period imposed on persons with ‘subsidiary protection status’, as opposed to persons with ‘refugee status’’. ⁷⁸

An objection can be anticipated against my analysis that what mattered was the gravity of the harm on its own terms, rather than any comparability between groups. It could be objected that in the above quoted sentence the Court still refers to ‘refugee status’ as a comparator. This is a weak objection: the invocation of a comparator simply facilitated the assessment of the gravity of the harm. This becomes very evident when the Court reached the proportionality stage of its analysis. At this juncture therefore it becomes pertinent to investigate in more detail how the Court performed its proportionality review in M.T. and Others v Sweden.

The Court stated that it was willing ‘to proceed on the basis of the assumption’ that the applicant ‘was in an analogous or relatively similar situation to that of persons granted refugee status’. ⁷⁹ Comparability is therefore neither accepted nor rejected, which is a useful judicial strategy for remaining as vague as possible and avoiding statements in a judgment that the Court does not consider as necessary to make (since they might be too controversial). This assumption is used by the Court as a justification for ‘leaving the assessment of the duration of the suspension period imposed to be assessed in terms of its proportionality.’ ⁸⁰ It can be rebutted that logically using the assumption as a justification does not make sense. The full quotation of the relevant paragraph can be helpful here:

the Court is for the purpose of the present case – where the core of the issue is not the imposition of a suspension as such, but the length of the suspension period imposed on persons with “subsidiary protection status”, as opposed to persons with “refugee status” – willing to proceed on the basis of the assumption that the second applicant in respect of the right invoked (namely, family reunification), was in an analogous or relevantly similar situation to that of persons granted refugee status, thus leaving the assessment of the duration of the suspension period imposed to be assessed in terms of its proportionality (emphasis added). ⁸¹

The usage of ‘thus’ could be read to mean that the acceptance of the assumption allowed the Court to proceed more generally to the question of proportionality. The proportionality analysis that followed, however, was not shaped by the comparison. The analysis was centred on the duration of the suspension period, i.e. on the gravity of the harm on its own terms in respect to the specific applicants as such, not as members of a group compared with another group. ⁸² In particular, it was relevant that they were, first, ‘de facto only covered by the suspension for less than 1 year and a half’, second, could be eligible ‘had exceptional circumstances emerged’ and, finally, when the national authorities denied family reunification, they struck a fair balance between the relevant competing interests.

To recap, in M.T. and Others v Sweden the purpose and the context of the measure (i.e. the limitation that was imposed on one group of migrants, but not on another) were invoked as a proxy for assessing the gravity of the harm as such, which relegated the question of comparability. ⁸³ Let’s now see whether a similar approach was applied X and Others v Ireland.

X and other v Ireland: no comparability in any case

What role did the purpose and the context play in X and Others v Ireland for identifying the comparator group and determining whether the disadvantaged group was in an analogous situation? The Court stated that ‘the general context of this case is that of immigration policy.’ As the Court has stated many times: ‘a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non-nationals into its territory and their residence there.’ ⁸⁴ Given that the State’s entitlement to immigration control is only part of the context, it can be accepted that the differentiated treatment of the applicants was not a mere corollary of state migration control powers. The differentiated treatment based on the criterion of lawful residence was rather, according to the Court’s reasoning, a ‘necessary corollary of the essentially national character of social security systems.’ ⁸⁵ As the Court further clarified:

[…] this criterion [lawful residence] has an inclusionary effect inasmuch as it broadens the entitlement to child benefit so as to include not just Irish nationals or those benefiting from specific forms of residence (such as EU nationals exercising freedom of movement), but the entire resident population. ⁸⁶

This reasoning is in accord with the clarification made in Section ‘The ‘but for’ test’’ above. That there are multiple conditionalities for receiving social benefits, which makes difficult the identification and the specification of a single group that has an exclusive (i.e. ‘but for’) characteristic based on which a benefit has been denied. For similar reasons, a comparator group is difficulty to identify and specify. All of this suggests that comparability might be difficult to operationalise. The Court did not state this directly in X and Others v Ireland. It rather focused on the specific context of the applicants to highlight that ‘their essential material needs were being met through the system of direct provision.’ ⁸⁷ The short timeframe within which they did not access the child benefit was also underlined. This low gravity of the actual harm was essential for the Court to conclude that it

is unable to find that the legal and factual elements characterising the applicant’s situation at the time they first applied for child benefit, considered in their totality and in context, were such as to place them in a relevantly similar situation to person who already had the status of legal resident in Ireland. ⁸⁸

The requirement for comparability was therefore not met and no proportionality assessment needed to be made. Ultimately, however, and despite the explicit invocation of comparability, it was not the latter that had a key role. What mattered in the reasoning was the gravity of the harm as such, which in X and Others v Ireland was assessed as not that significant.

Conclusion

The formulation of an argument that a group has been discriminated on the basis of its immigration status might face some initial definitional challenges. One of them might be the application of the ‘but for’ test, which demands demonstrating that distinctions between groups have been made exclusively on the basis of their immigration status. Exclusivity might be difficult to demonstrate. The second challenge, that can be also understood as definitional, pertains to the understanding that immigration status is a matter of personal choice. As in many other legal areas, choice is a difficult concept. In this article I showed how the Court in its reasoning can select factual and legal elements to conclude whether the status was a matter of personal choice and to what degree.

Combinations of factual and element elements can be also used by the Court to characterise situations between groups to assess their comparability. M.T. and Others v Sweden and X and Others v Ireland were used to illustrate such combinations. Legal elements appear to dominate the reasoning in both judgments, which creates circularity. For example, in M.T. and Others v Sweden the regulation of family reunification by the EU Family Reunification Directive was invoked by the Court as a legal element for assessing comparability. The latter Directive, however, already assumes the more favourable treatment of one group over others. Another example of circularity emerges from the reasoning in X and Others v Ireland. In particular, the distinction between lawful presence and lawful residence was taken for granted in the reasoning and used to assess comparability, while it is this very distinction that the applicants tried (unsuccessfully) to challenge.

The danger when legal elements dominate is that legal distinctions between groups remain difficult to contest especially in areas such as migration and social assistance where States have wide discretion and have to make difficult decisions about redistribution of resources. I explained that the Court’s reasoning has a tool to address this danger. More specifically, while factual and legal elements to assess comparability might be invoked in the reasoning, what eventually seems to be emphasized and to determine the conclusion, is whether migrants are afforded some minimum level of treatment to be protected from severe forms of harm.

This finding exposes the question about the usefulness of the comparative lens (i.e. the anti-discrimination framework under Article 14 of the ECHR) as still quite open. This in turn might justify the current ECtHR practice of avoiding to address migrants’ complaints under Article 14. ⁸⁹ Conversely, viewed through a comparative lens, certain questions and issues emerge that might not otherwise be explored. Relevant examples include the varieties of categorisations; or putting the Court in a position where it has to make normative determinations what is a matter of personal choice and what is legally imposed.