Non-Discrimination and special protection for migrants and refugees
| Author | Luisa Feline Freier,Valeria Aron Said,Diego Quesada Nicoli |
| DOI | http://doi.org/10.1177/13582291221115538 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(3) 281–304
© The Author(s) 2022
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DOI: 10.1177/13582291221115538
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Non-Discrimination and special
protection for migrants and
refugees
Luisa Feline Freier
1
, Valeria Aron Said
2
and
Diego Quesada Nicoli
3
Abstract
In the Americas, the Inter-American Commission on Human Rights (IACHR) and the
Inter-American Court of Human Rights (IACtHR) have established that the principle of
equality and non-discrimination requires States to both ensure that migrants are not
discriminated against on any of the protected grounds of the American Convention on
Human Rights, as well as to take specific action to protect certain groups of migrants that
are in a situation of vulnerability. Via a comparative quantitative analysis of the immi-
gration and refugee laws, as well as implementing regulations, of 20 Latin American
countries, we examine the extent of non-discrimination and special protection provided
by the region’s migratory legislation. Our results reveal three main findings. First, more
recent immigration and refugee laws tend to be more expansive, which reflects the period
of migratory liberalisation in the region. Second, while non-discrimination clauses are
more dominant in laws, special protection clauses are primarily present in implementing
regulations. This suggests that countries see special protection as a tool to positive
discrimination of particularly vulnerable groups. Third, although we identify an overall
expansion on protection grounds, countries’migratory laws mostly reflect traditional
categories like: sex/gender; race/ethnicity/colour; nationality; economic/social condition;
and religion. Overall, although laudable, the impact of these provisions on reversing
structural discrimination from an intersectional approach remains questionable.
1
Associate Professor, Social and Political Sciences, Universidad del Pacifico, Lima, Peru
2
Social Sciences, Pontificia Universidad Catolica del Peru, Lima, Peru
3
Law, Universidad del Pacifico, Lima, Peru
Corresponding author:
Valeria Aron, Social Sciences, Pontificia Universidad Catolica del Peru, Av. Universitaria 1801, Lima 15032,
Peru.
Email: valeria.aron@pucp.pe
Keywords
Vulnerable migrants, refugees, non-discrimination, special protection, Latin America
Introduction
The 2001 Durban Declaration established that xenophobia against non-nationals–
particularly against migrants–constitutes one of the main sources of contemporary
racism.
1
Across the globe, many migrants and refugees find themselves in a condition of
heightened precarity that puts them at risk of human rights violations,
2
including being
discriminated against in terms of housing, education, health, work or social security. In
these areas, migrants “face interrelated forms of discrimination, […] not only because of
their national origin or more broadly, because of being foreign, but also because of factors
such as age, gender, sexual orientation, gender identity, ethnic-racial, disability status,
poverty or extreme poverty, among others.”
3
As a result, displaced populations are in need
of special protection due to the additional risks to which they are exposed, and scenarios in
which one or multiple factors of discrimination converge to increase their levels of
vulnerability.
4
The principle of equality and non-discrimination, which is at the heart of human rights
treaties, is now widely recognized as forming part of international customary law, and
constitutes a peremptory norm of international law, “because the whole legal structure of
national and international public order rests on it and it is a fundamental principle that
permeates all laws.”
5
In the Americas, the Inter-American Commission on Human Rights
(IACHR) and the Inter-American Court of Human Rights (IACtHR) have established that
the principle of equality and non-discrimination requires States to both ensure that
migrants are not discriminated against on any of the protected grounds of the Am erican
Convention on Human Rights,
6
as well as take specific action to protect certain groups of
migrants that are in situations of vulnerability.
7
More specifically, the IACHR has enshrined non-discrimination and the protection of
vulnerable individuals as two of the main pillars of the human rights framework regarding
persons in the context of human mobility. On the one hand, the regional entity has stated
that immigration and refugee laws should explicitly ban discrimination on any of the
below-mentioned protected grounds:
The law shall prohibit any discrimination and guarantee migrants equal and effective
protection against discrimination on any ground such as race, color, sex, language, religion or
conviction, political or other opinion, national or social origin, economic status, birth,
property, marital status, sexual orientation, gender identity or expression, ethnic group,
disability, nationality or statelessness, migration or residence status, age, reasons for crossing
international borders or the circumstances of travel or any situation in which they are found
by the authorities, as any other factor.
8
On the other, noting that formal equality is not enough to address the disproportionate
impact some migrants experience due to structural and systemic instances of
282 International Journal of Discrimination and the Law 22(3)
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