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Discrimination Based on Immigration Status under the ECHR: Navigating between the Factual versus the Normative and the Comparison-based versus the Minimum-based Treatment

Stoyanova, Vladislava LU (2025) In International Journal of Discrimination and the Law 25(2). p.182-202
Abstract
Immigration status as a ground of making distinctions that might be in violation of the right to non-discrimination, is conceptually underdeveloped. This gap is addressed by explaining how the European Court of Human Rights has chosen to use arguments shaped by factual and legal/normative elements to reason under Article 14 of the European Convention on Human Rights. One such argument concerns the usage of the ‘but for’ test for determining whether the basis for distinctions is immigration status. Another argument is that immigration status is a matter of choice. The role of legal and factual elements in the comparability stage of the anti-discrimination analysis is also explained and illustrated with reference to the two recent ECtHR... (More)
Immigration status as a ground of making distinctions that might be in violation of the right to non-discrimination, is conceptually underdeveloped. This gap is addressed by explaining how the European Court of Human Rights has chosen to use arguments shaped by factual and legal/normative elements to reason under Article 14 of the European Convention on Human Rights. One such argument concerns the usage of the ‘but for’ test for determining whether the basis for distinctions is immigration status. Another argument is that immigration status is a matter of choice. The role of legal and factual elements in the comparability stage of the anti-discrimination analysis is also explained and illustrated with reference to the two recent ECtHR judgments: M.T. and Others v Sweden that concerned family reunification and X and Others v Ireland that concerned child benefits. (Less)
Please use this url to cite or link to this publication:
author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
Human rights, Migration law, Mänskliga rättigheter, Migrationsrätt
in
International Journal of Discrimination and the Law
volume
25
issue
2
pages
182 - 202
external identifiers
  • scopus:105008344166
DOI
10.1177/13582291251334540
project
The Borders Within: the Multifaceted Legal Landscape of Migrant Integration in Europe
language
English
LU publication?
yes
id
b3b5b1aa-fea6-4f3c-8aa7-6a96262c65e8
date added to LUP
2025-03-28 14:38:19
date last changed
2025-06-22 04:00:25
@article{b3b5b1aa-fea6-4f3c-8aa7-6a96262c65e8,
  abstract     = {{Immigration status as a ground of making distinctions that might be in violation of the right to non-discrimination, is conceptually underdeveloped. This gap is addressed by explaining how the European Court of Human Rights has chosen to use arguments shaped by factual and legal/normative elements to reason under Article 14 of the European Convention on Human Rights. One such argument concerns the usage of the ‘but for’ test for determining whether the basis for distinctions is immigration status. Another argument is that immigration status is a matter of choice. The role of legal and factual elements in the comparability stage of the anti-discrimination analysis is also explained and illustrated with reference to the two recent ECtHR judgments: M.T. and Others v Sweden that concerned family reunification and X and Others v Ireland that concerned child benefits.}},
  author       = {{Stoyanova, Vladislava}},
  keywords     = {{Human rights; Migration law; Mänskliga rättigheter; Migrationsrätt}},
  language     = {{eng}},
  number       = {{2}},
  pages        = {{182--202}},
  series       = {{International Journal of Discrimination and the Law}},
  title        = {{Discrimination Based on Immigration Status under the ECHR: Navigating between the Factual versus the Normative and the Comparison-based versus the Minimum-based Treatment}},
  url          = {{http://dx.doi.org/10.1177/13582291251334540}},
  doi          = {{10.1177/13582291251334540}},
  volume       = {{25}},
  year         = {{2025}},
}