Abstract
Migration control does not end at the border. Rather, controlling migration (and migrants) continues inside host countries as migration status is used to stratify benefits and limit rights across social, economic, cultural, and political life. This differentiation typically has exclusionary effects and aggravates structural disadvantages that migrants face. This essay argues that we should use anti-discrimination law to address such practices of differentiation and remedy their detrimental effects. While non-discrimination clauses in international human rights treaties provide a powerful resource to this end, they are currently often interpreted in a restrictive manner. “Differentiation within” includes a variety of measures such as restrictions on migration status that limit the right to work, restrictions on political participation, restrictions on freedom of movement based on migration status, and requirements of cultural adaptation.
Highlights
Migration control does not end at the border
While non-discrimination clauses in international human rights treaties provide a powerful resource to this end, they are currently often interpreted in a restrictive manner
The analysis in this essay focuses on one specific set of practices, namely limitations regarding work and access to the labor market based on migration status
Summary
Migration control does not end at the border. Rather, controlling migration (and migrants) continues inside host countries as migration status is used to stratify benefits and limit rights across social, economic, cultural, and political life.[1]. The non-discrimination clause in Article 2(2) of the ICESCR sets out that state parties “undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[4] In its General Comment No 20 on non-discrimination, the UN Committee on Economic Social and Cultural Rights (CESCR) has clarified that “[t]he Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.”[5] Article 2(3) of the ICESCR includes an exception for developing countries, which are allowed to restrict socioeconomic rights of non-nationals Still, these restrictions must be made with “due regard to human rights” and the exception should be interpreted narrowly.[6] the developing country exception does not apply to the majority of economically developed migrant-receiving countries in the Global North that have restrictive rules regarding labor market access. Article 52(2)(b) of the ICRMW and Article 14 of the International Labor Organization (ILO) Convention No 143 on the Protection of Migrant Workers
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