The Equality Challenge
Edited by Sonia Morano-Foadi and Micaela Malena
Chapter 2: The equality clauses in the EU directives on nondiscrimination and migration/asylum
This chapter reflects on the application of the equality clauses to non-EU nationals in two separate areas of law–EU anti-discrimination and migration/asylum–and considers their interplay. A key aspiration of this chapter and, indeed, of the entire book, is to explore the challenges to equality that appear at the intersection of these two areas. The chapter begins with an analysis of the non-discrimination principles on the ground of nationality (art 18 TFEU) and on the ground of race (art 19 TFEU), as expanded by the Directives introduced in this field (hereby referred to as the Equality Directives). The scope of application of art 21 of the Charter, which lays down the principle of non-discrimination as a fundamental rights norm, is also explored. Next, the case law of the Court of Justice of the EU (hereby CJEU or Luxembourg) and the European Court of Human Rights (hereby ECtHR or Strasbourg) are examined. An analysis of the ECtHR’s case law regarding the differential treatment of third-country nationals (TCNs) serves two distinct but complementary purposes. First, it helps to clarify the legal standards with which the EU legal framework on the treatment of thirdcountry nationals must comply after the entry into force of the Lisbon Treaty.
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