Research event

The potential of non-discrimination clauses for the inclusion of migrants

A presentation by Anuscheh Farahat. This event is part of the Fundamental Rights Research Colloquium hosted by the Centre for Fundamental Rights.

Modern societies of immigration are characterized by a new super diversity which renders the idea of a homogenous (cultural) majority ultimately anachronistic. While migration law in many countries is still largely focused on the integrative efforts of migrants themselves, super diverse societies of immigration require a fundamental shift towards a cooperative and progressive framework for inclusion of migrants. Such a progressive and cooperative paradigm requires the state to actively combat structural disadvantages regarding in particular political and socio-economic participation and to set the stage for the effective and active inclusion of migrants rather than to only expect them to adapt to their new host society.

Against this background, the paper analyses the potential of non-discrimination clauses in international human rights law for the inclusion of migrants in modern societies of immigration. It asks whether and to what extent non-discrimination clauses can be interpreted in a way so as to require states to combat structural inequalities, provide opportunities for participation and to actively promote socio-economic and political inclusion of migrants.

The paper examines the practice of several UN Treaty bodies regarding the respective non-discrimination clauses: the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee on Migrant Workers and the Committee on the Elimination of All Forms of Racial Discrimination. The idea is to map differences and overlapping in the interpretation of non-discrimination clauses with respect to the inclusion of migrants. On the basis of this empirical analysis, the author makes some suggestions on how these inclusionary human rights requirements could be translated into concrete measures in European and domestic migration law. She argues that such an equality based approach to the inclusion of migrants will also pave the way for the elimination of other structural inequalities within societies of immigration.

Anuscheh Farahat is a Professor of Public Law, Migration Law and Human Rights Law at the University of Erlangen-Nürnberg. Since 2017 she leads an Emmy-Noether research group on the role of constitutional courts in transnational solidarity conflicts in Europe funded by the German Research Foundation (Deutsche Forschungsgemeinschaft). Anuscheh is also a Senior Research Affiliate at Max Planck Institute for Comparative Public Law and International Law, Heidelberg. Anuscheh publishes widely on issues of constitutional law, migration and citizenship law, and international human rights law. Her book on migrant citizenship and transnational migration in Germany (Progressive Inklusion: Zugehörigkeit und Teilhabe im Migrationsrecht, Springer Verlag, 2014) has received multiple awards, including the Herman-Mosler-Prize 2015 of the German Society of International Law.