Discrimination based on immigration status under the ECHR: Navigating between the factual versus the normative and the comparison-based versus the minimum-based treatment

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.