Equality is, one might have thought, an inclusive principle. The Universal Declaration of Human Rights commits nations to protect ‘the equal and inalienable rights of all members of the human family’, while closer to home the British Conservative party speaks of equality of opportunity for ‘every single individual in this country’.1 Equality is not, however, the intention of any government for one section of society: migrants. Their conditions of entry spell out the terms of their inequality, imposing limits on their right to access jobs, public services, social assistance and participation in elections.
These departures from the equality principle are not seen as discrimination but as a legitimate part of immigration control. Few would indeed suggest that migrants should be able to make their way to the benefit office or polling station on the day they step onto the tarmac at JFK or Charles de Gaulle. Yet there are other rights – such as freedom from torture and to a fair trial – where migrants’ equality with citizens is, in a liberal democracy, taken as read.
That divergence raises a fundamental question: when is it legitimate for a state to impose restrictions on migrants as part of its sovereign right to control its borders, and when should that right be trumped by the principle of equality for all within the territory? As Linda Bosniak puts it: when is it legitimate for the border to follow the migrant inside (2006)? If it is legitimate to restrict some of the rights of some migrants in some circumstances, what are those circumstances, and when do the restrictions amount to illegitimate discrimination? Is there a workable test we can use to decide where to draw the line?
Academic and policy discourses have toyed with various criteria as the basis on which migrants should acquire equal rights: the strength of the individual’s social ties; length of residence; contribution. All have strengths but also flaws; for example, contribution may not be within the migrant’s control (if still a child or barred by discrimination), or their existing affiliation may be weak but their need for protection strong. Basing access to equality on such criteria, moreover, reinforces exclusion rather than building capacity to overcome it. Nor is it clear how affiliation or contribution should be measured and hence at what point equality in civil, social and political rights should be granted.
Rather than criteria for earning equality, the question should be ‘on what grounds is it justified to exclude?’ The majority of states have signed up to human rights instruments, like the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights (ECHR), in which equality is the default position from which states have to justify any departure.
The ECHR provides protection from discrimination in relation to the rights in that Convention ‘on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’ (Art.14). Not every difference in treatment amounts to discrimination – only if the less favourable treatment has no objective and reasonable justification. To be non-discriminatory, the restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the restriction and the aim that it is intended to achieve. So the Convention provides a clear test against which any restriction must be judged.
In decisions binding on the 47 Council of Europe member states, the European Court of Human Rights has clarified that these provisions include protection from discrimination on grounds of nationality, immigration and residence status. Austria’s denial of unemployment benefit to a tax-paying Turkish national on the basis of his nationality was, for instance, discrimination in the enjoyment of his right to property. The Court said a government would have to provide ‘weighty reasons’ before it could regard difference of treatment based exclusively on nationality as compatible with the Convention (De Schutter, 2009; 2011). The absence of a stable residence permit was likewise not sufficient reason to deny the right to family reunion to a refugee whose marriage post dated his arrival, when other temporary residents (workers and students) are allowed to be joined by their spouses. The UK justified this on the grounds that it needed to provide an incentive to workers and students to come. The court thought this a legitimate aim but did not consider the difference in the treatment of refugees to be justified and proportional on those grounds. It is not sufficient to claim restrictions are necessary for the purposes of immigration control or to protect the public purse. There must also be evidence that the restrictions are necessary and proportional to that end.
That test provides more than fine points to debate in court. It is an operational yardstick public authorities can use to consider when it is legitimate for a right to be restricted and when the equality principle should prevail. It brings into play a broad range of economic, social and personal considerations when weighing up the necessity and proportionality of the restriction.
European governments have not yet felt any need to spell out their reasons for the restrictions they impose or the evidence on which they are based. Recent COMPAS studies had difficulty tracking down any rationales for many restrictions in place except where, retrospectively, they had been challenged through a parliamentary process or in court (Pobjoy and Spencer, 2012; Oliver, 2013). If challenged, governments may find the impacts of restrictions poorly evidenced, suggesting a new research agenda. If the aim is indeed not equality for all, then inequality for whom, and on what grounds?
1 Teresa May, Shadow Home Secretary, Second Reading Equality Bill, May 11, 2009. Col 565. UN Declaration: author’s emphasis.
Bosniak, L. (2006) The Citizen and the Alien: The Dilemmas of Contemporary Membership, Princeton and Oxford: Princeton University Press.
De Schutter, O. (2009) ‘Links between Migration and Discrimination’, Thematic report, European Network of Legal Experts, European Commission.
De Schutter, O. (2011) ‘The Prohibition of Discrimination under European Human Rights Law: Relevance for the EU Non-discrimination Directives – an Update’, Thematic report, European Network of Legal Experts, European Commission.
Oliver, C (2013) ‘The Impact of Restrictions and Entitlements on the Integration of Family Migrants’, Final report of the IMPACIM project, COMPAS, University of Oxford.
Pobjoy, J. and Spencer, S. (2012) ‘Equality for All? The Relationship Between Immigration Status and the Allocation of Rights in the United Kingdom’, European Human Rights Law Review (2): 162 -177.
In this analysis I draw significantly on my work with Jason Pobjoy at the University of Cambridge and acknowledge with gratitude his contribution.