When a party argues that no more Muslim migrants should be allowed into the Netherlands, this is widely condemned as discriminatory. When a different party argues that no more refugees should be allowed into the Netherlands, discrimination plays little to no role. Why are refugees different as a group from Muslims when it comes to discrimination?
In many jurisdictions, distinctions based on immutable characteristics are scrutinized more closely for being discriminatory compared to others. The argument behind this is that disadvantaged groups defined by these characteristics, for instance women, are unable to change their defining characteristic and therefore cannot escape discrimination. This would make distinctions that harm them even worse for them.
This claim is factually problematic, given the existence of trans-gender people. The same holds for one’s membership of an ethnic group, which can be lied about and thereby changed for the purposes of discrimination. Moreover, this argument seems to imply that the existence of transgender people would make discrimination against women somehow less bad. As this seems unacceptable, this metric for enhancing scrutiny should be rejected.
A second way which is used to rank how ‘bad’ distinctions are is whether there is a right to maintain the characteristic upon which the distinction is made. If there is such a right, the argument goes, the group faces a very harmful choice between giving up their rights and escaping discrimination. This can be applied to religious groups, as the freedom to practice a religion is considered to be a human right.
If we believe that one has a right to life, I would find it reasonable that trying to protect this right by fleeing violence or persecution should also be held as a legitimate expression of this right to life. This would then mean that distinctions made against those who exercise this option are equally discriminatory compared to a similar distinction made on one’s religion. Therefore, under this metric there is no reason to distinguish refugees from religious minorities when it comes to enhancing scrutiny.
I do not necessarily argue here that all distinctions which harm asylum seekers are discriminatory. However, I want to draw attention to the large discrepancy between the ease with which we identify discrimination in other areas compared to the exclusion of this concept when it comes to policy aimed at a group of people defined by their immigration status. It would help to keep in mind that refugees, like the groups we associate with ‘discrimination’, are also a vulnerable group of people unified by their choice to exercise their human rights in a particular way.