Juan Amaya-Castro argues that states’ selective immigration policies are discriminatory, and that this discrimination has been legitimized by international (migration) law. From a legal point of view, this is rather a misperception that confuses differential with discriminatory treatment. The latter is not allowed by contemporary international law as this post will show.
International migration law is not a self-contained legal regime. It is a multi-layered body of law consisting of various international, regional or bilateral treaties and agreements which leave “the alien’s body protected by a varying number of layers (legal regimes) depending upon the sartorial tastes of the State involved” (Richard Lillich, The Human Rights of Aliens in Contemporary International Law, Manchester UP, 1984, 122). Some of the most migrant-protective layers are certainly those provided by international and European human rights law and principles.
As regards migrants’ entry, the UN Human Rights Committee in its 1986 General Comment No 15 noted that the International Covenant on Civil and Political Rights
“does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise”.
This is true also under another core law-making treaty, the European Convention on Human Rights (ECHR), as interpreted by the Strasbourg Court (see below).
Differential treatment of migrants does not always equal discrimination
Migration control measures that differentiate among (prospective) migrants are not automatically unlawful. Whether such state action affecting migrants constitutes discrimination is grounded in the principle of prohibition of discrimination enshrined notably in Article 14 ECHR and in Protocol No. 12 to the ECHR. Non-discrimination grounds indicatively enlisted therein are: “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
As Judge Tanaka observed in his outstanding dissenting opinion in South West Africa (Second Phase) (1966), the “equal treatment of men as persons” is a metaphysical, natural law idea that pervades international and domestic law. Equality, however, does not exclude differentiation because “to treat different matters equally in a mechanical way would be as unjust as to treat equal matters differently”. For a differential practice not to amount to discrimination, it should be justified by the criterion of justice or reasonableness which excludes arbitrariness. In addition, since equality is a principle and different treatment an exception, states that resort to different treatment must always prove its “raison d’être and reasonableness”.
These positions were echoed later in the seminal Belgian Linguistics case (1968), where the European Court of Human Rights affirmed that the principle of equality of treatment is violated if the “distinction has no objective and reasonable justification”. The existence of such a justification must be assessed “in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies”. The Court went on and established two fundamental conditions that differential treatment should fulfill: firstly, it must pursue a legitimate aim; secondly, there must be a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”.
Major prohibitive grounds of differential treatment affecting migrants
The ECHR organs have developed a significant body of case-law on whether exclusion from territory or difference of treatment affecting migrants may be prohibited by the principle of non-discrimination. One of the first, fundamental principles highlighted is that states have no right to base migration control measures upon migrants’ racial origin. The question was posed in 1970 before the former European Commission of Human Rights in the case of East African Asians v. UK, concerning the exclusion from the UK, expressly and admittedly for reasons of ‘racial harmony’, of UK passport holders of Asian origin who lived in Kenya or Uganda.
In the above case the Commission noted that “publicly to single out of a group of persons for differential treatment on the basis of their race might, in certain circumstances, constitute a special form of affront to human dignity”. In addition, immigration law discrimination on racial grounds could itself amount to degrading treatment under Article 3 ECHR, as was found to be the case in East African Asians. In 1983, in Abdulaziz, Cabales and Balkandali, the Commission made it clear that no state may implement immigration policies “of a purely racist nature, such as a policy prohibiting the entry of any person of a particular skin colour”.
These cases remain important in view of ongoing debates about migration control, which are often tainted by racist considerations. Among many examples one may cite the travel restrictions imposed on Roma from the Western Balkans seeking asylum in the EU (cf. Council of Europe Commissioner for Human Rights, The Right to Leave a Country, 2013).
The question of differential treatment on the ground of sex was posed in 1980 when the UK introduced stricter conditions, purportedly in order to protect the domestic labour market, for entry of migrant husbands or fiancés seeking to join or remain with their wives or fiancées already settled in the UK. Under the law and practice of the time, it was easier for men settled in the UK than for women so settled to obtain permission for their non-national spouses to enter or remain in the country. This was found to be discriminatory against the women, primarily migrant, applicants, hence unlawful by the Strasbourg Court (Plenary) in Abdulaziz, Cabales and Balkandali v. UK (1985).
Ultimately, the argument centered on whether the above difference had an objective and reasonable justification. The Court stressed that “very weighty arguments would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention”. The data put forward by the respondent state did not convince the Court that this differential treatment to the detriment of migrant women already in the host state was justified “by the need to protect the domestic labour market at a time of high unemployment”.
Under the ECHR, states, in principle, cannot use nationality as a sole ground of distinction that would deny regular migrants, including recognised refugees, major social rights or social benefits. An exception to this principle may occur again only if states are in a position to persuasively provide “very weighty reasons” for differential treatment (e.g. Dhahbi v. Italy, 2014).
In his post, Juan Amaya-Castro claims that current selective immigration policies have legitimized another differentiation ground, the migrants’ “economic worth” on the basis of which easy entry and residence may be enjoyed by, for example, non-national investors or entrepreneurs. Although I am sympathetic towards his argument, I am not convinced that, in itself, such differentiation constitutes discriminatory, and hence unlawful, treatment, in the sense explained earlier. The Strasbourg Court has actually noted that, in the context of differential treatment, a “wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy”, adding that “offering incentives to certain groups of immigrants may amount to a legitimate aim for the purposes of Article 14 of the Convention”. The Court has made it clear that in general it will respect the legislature’s policy in this field “unless it is manifestly without reasonable foundation” (e.g. Hode and Abdi v. UK, 2012).
In conclusion, the claim that international (migration) law gives states a free hand to discriminate is not watertight. It certainly still grants states a margin of appreciation and license for differential treatment. However, under the European Court of Human Rights’ case-law, any such treatment affecting migrants has to be in conformity with the fundamental principle of equality, that is, to be legitimate, reasonably proportionate and justified by “very weighty reasons”. In this context, the Court has rightly applied a particularly strict review in cases concerning ‘suspect’ discrimination grounds relating to one’s race, sex or nationality, which refer to innate personal characteristics. These standards of European human rights law arguably constitute the most protective layer of international migration law.