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On the Basis of Migratory Vulnerability:Augmenting Article 14 of the European Convention on Human Rights in the Context of Migration
Title / Series / Name
Publication Volume
20
Publication Issue
1
Pages
Author
Editors
Keywords
COVID-19 vaccinations
ECHR
discrimination
equality
migration
right to rent
undocumented migrants
vulnerability
Law
SDG 3 - Good Health and Well-being
ECHR
discrimination
equality
migration
right to rent
undocumented migrants
vulnerability
Law
SDG 3 - Good Health and Well-being
Files
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Ganty-Sarah1_2024.pdf
Adobe PDF, 216.5 KB
URI
https://hdl.handle.net/20.500.14018/28755
Abstract
The fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary mechanism for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work, which identified a legal tool suitable for achieving this reorientation in judicial practice: the principle that we call 'migratory vulnerability', once recalibrated away from a group-based approach to a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the 'comparator' test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.
Topic
Publisher
Place of Publication
Type
Journal article
Date
2024-03-26
Language
ISBN
Identifiers
10.1017/S174455232300037X