The argument that I made focused on the selection for admission of foreigners on the basis of economic worth, and I denominate this selection ‘discriminatory’. In his response Nikolaos Sitaropoulos argues that he is “not convinced that, in itself, such differentiation constitutes discriminatory, and hence unlawful, treatment”. However, the fact that it may not be, at least according to the European Court of Human Rights ‘unlawful’, or rather, in breach of the European Convention of Human Rights, although perhaps in breach of other international rules, does not mean that it is not ‘discriminatory’. The international human rights analysis of Sitaropoulos points in the direction of lawfulness for this discrimination in the context of admission. Allowing for this analysis to be correct, and at least suspending an important new argument, I would reframe the title of my argument to argue that it is international human rights law, and not just international migration law, that provides a license to discriminate on the basis of economic worth, exactly because it considers it lawful to do so. Referring to this practice as ‘differentiating’, rather than ‘discriminatory’, ignores the fact that we are talking about a very binary selection process: you are either admitted, or you are not. To differentiate is to identify difference. To discriminate is to grant somebody a right, or to deny it, on the basis of that difference.
Francesca Pizzutelli provides a welcome overview of international legal limitations that may protect people from discrimination according to economic worth. How should we, however, qualify these limitations? Do they indicate a new legal development? Or are they instead scattered exceptions that confirm a rule? Her analysis strongly reminds me of two very telling and almost identical anecdotes in which a refugee lawyer in the UK and an immigration officer in Germany were advising some prospective asylum seekers to seek entry through employment or ‘knowledge migration’, because that offered much better prospects. In addition, how should we assess these rather humble limitations against a backdrop in which citizenship of EU countries is increasingly for sale? And what to make of the fact that as this piece goes online, the UN Security Council is preparing military action against smugglers and accepting that this may result in the killing of ‘migrants’, as ‘collateral damage’? This author at least finds it hard to see in the limitations highlighted by Pizzutelli a significant obstacle to the right to discriminate according to economic worth.