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Uncovering and challenging discrimination in immigration law and migration control

Border fencing and barbed wire at Dieppe, France, at sunset © Eye DJ
Dieppe sunset, French border [CC BY-NC-ND 2.0]

Project aims

Migration law and control distribute an important social good: the right to enter and reside in a particular state. These laws and controls are multi-faceted, multi-sited and mobile. Some, such as visa systems, take place remotely and are often outsourced. Others, such as asylum and migration adjudication, usually take place within states, are legally complex and involve large public bureaucracies. Migration controls reach into host states, impacting on both migrants’ and citizens’ daily lives, often entailing checks in workplaces and places of residence. Migration controls also radiate out, beyond states’ borders, applying extra-territorially and effecting the movement of people in other states and regions. 

Discrimination has a long history in the context of migration control, unsurprising given that these controls were and remain involved in nationalist, colonial and postcolonial projects of racialized and gendered exclusion and subordination. Contemporary migration controls frequently appear to disadvantage women, racial and religious groups and those whose sexual orientation, gender-identity or family status departs from the nuclear hetero-norm. This research project aims to understand when such disadvantageous treatment constitutes unlawful discrimination. Remarkably, while the philosophical, political and legal study of discrimination has burgeoned, there has been little sustained analysis of when, precisely, migration controls are unlawfully discriminatory. This is a significant omission – both normatively and legally, and one that this project seeks to remedy.

The project was launched in October 2020 with two workshops, hosted jointly by the Refugee Studies Centre and the Centre for Fundamental Rights at the Hertie School. Papers and discussions held in these workshops have given rise to two sets of publications. The first is a Symposium issue of AJIL Unbound (the online publication of the American Journal of International Law) co-edited by Professor Cathryn Costello and Dr Catherine Briddick. Contributions include an essay by Professor E. Tendayi Achiume (UCLA and UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance) on ‘Digital Racial Borders’, as well as an essay co-authored by Professor Cathryn Costello (Hertie School, RSC) and Professor Michelle Foster (University of Melbourne) entitled ‘Race Discrimination Effaced at the ICJ’. Other essays include, by Dr Catherine Briddick ‘When Does Migration Law Discriminate Against Women?’; by Professor Anuscheh Farahat (Friedrich-Alexander-University Erlangen-Nürnberg), ‘Discrimination Inside: Non-Discrimination as a Tool of Migrant Integration’; by Liav Orgad (WZB), ‘When is Immigration Selection Discriminatory?’; and a concluding essay by Professor Colm O’Cinneide (UCL) on ‘Why Challenging Discrimination at Borders is Challenging (and Often Futile)’.

The second publication, which is in preparation, is a Special Issue of the International Journal of Discrimination and Law  (the call for papers can be found here). Further events are being planned, so please contact Catherine Briddick if you are a legal scholar working in this field.

Network members

E Tendayi Achiume

Alicia Miñana Chair in Law, and former Faculty Director of the UCLA Law Promise Institute for Human Rights.

United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance

Cathryn Costello 

Andrew W Mellon Professor of Refugee and Migration Law, Refugee Studies Centre

Professor of Fundamental Rights, Co-Director of the Centre For Fundamental Rights, Hertie School

Michelle Foster 

Professor and inaugural Director, Peter McMullin Centre on Statelessness, Melbourne Law School

Elspeth Guild 

Jean Monnet Professor ad personam in law, Queen Mary University of London

Emeritus Professor, Radboud University

Events

Undoing Discriminatory Borders

10 January 2022, 3–4.30pm UK

This seminar discussed the Symposium issue of AJIL Unbound on Undoing Discriminatory Borders which was co-edited by Professor Cathryn Costello and Dr Catherine Briddick.

Publications