Why the European Court of Human Rights Should Adopt an Animus-Based Approach to Xenophobic Discrimination

by Moritz Baumgärtel

NB: An extended version of this blog post will be published in the edited volume Race, Racism and the European Convention on Human Rights, edited by Vandita Khanna and Kirsty Hughes (Hart Publishing, forthcoming)

***

To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.

***

Xenophobia and xenophobic discrimination remain ‘elusive’ concepts in human rights law, including in the jurisprudence of the ECtHR. In Basu v. Germany, the Court hinted for the very first time that State Parties may have an obligation to combat xenophobia, and specifically ‘the spread of xenophobic attitudes’, under Article 14 of the ECHR, in this case in conjunction with Article 8. The applicant, a German national of Indian origin, had been subjected to racial profiling, and his subsequent complaints about the identity check were dismissed by the national authorities and courts. Prior to this judgment, the Court’s case law (e.g., Perinçek and Sanchez) suggested that xenophobia manifested only in individual speech acts and thus as conduct that States could prohibit within the scope of Article 10(2) when it amounted to hate speech or incitement to violence. Beyond that context, xenophobia has not figured as a form of exclusion capable of triggering a material breach of the Convention. Most likely, xenophobic discrimination has been regarded as subsumed under the suspect grounds of race or ethnicity, and therefore redundant as a separate category.

This entry challenges that view and argues that the ECtHR should develop a distinct approach to identifying xenophobic discrimination based on animus. To substantiate this claim, I show that recent scholarship treats xenophobia as distinct from racism, even though the two are interrelated. I then adopt a ‘harm-based’ understanding of xenophobia to highlight the Court’s variable capacity and willingness to address exclusions of perceived outsiders. The final section advocates for an animus-based approach, partly because a harm-centred theory casts too wide a net to be workable under Article 14, and partly because such an approach accounts for the Court’s own, very serious structural limitations. While a return to a more literal conception of xenophobia and an intent-based model of discrimination might seem like a step backwards, it would equip the ECtHR with a more sophisticated tool to address invidious violations at a time when European governments increasingly compete to restrict migrants’ rights.

The distinctiveness of xenophobia and xenophobic discrimination 

As Atrey reminds us (pp. 84-85), the term xenophobia first appears in the 1993 Vienna Declaration and Programme of Action, and later more substantively in the 2001 Durban Declaration and Programme of Action. Also established in 1993, the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance issued a key report in 2016 discussing xenophobia and legal responses to it at various levels. Given that no treaty explicitly mentions xenophobia or xenophobic discrimination, this report remains the most authoritative source delineating their legal contours, defining xenophobia as ‘behaviour specifically based on the perception that the other is foreign to or originates from outside the community or nation’ (para. 26). Other bodies, notably the UNHCR, explicitly refer to this definition.

A key conceptual challenge is xenophobia’s overlap with racism. As the Special Rapporteur’s report notes, ‘it is difficult to distinguish between racism and xenophobia, since differences in physical characteristics are often assumed to distinguish the “other” from the common identity’ (para. 27). The racialised other is often perceived as a threat precisely because of their physical appearance (para. 28), meaning that the two phenomena, even if conceptually distinct, are mutually reinforcing. While not offering a definitive resolution to the conceptual quandary, the report explains that victims of xenophobia and xenophobic discrimination ‘may be targeted as foreign on account of the multiple and intersecting categories’ which include, but are not reducible to, race (para. 34). Indeed, the same passage clarifies that accounts of actual and perceived status as foreigners can be based on ‘race, colour, ethnicity, religion, national origin, lineage, nationality, sex, gender, sexual orientation, social class and language, among others.’ Xenophobic exclusion will manifest in various ways, some (though not all) of which fall under prohibited grounds of discrimination. Race is only one such ground, and the role it plays varies by legal and political context.

To fill the gap left by legal sources, one can consult scholars of race and xenophobia who offer deeper insights into the nature of xenophobia. Kim and Sundstrom, for instance, describe it as a ‘particular racism’ marked by ‘civic ostracism’ (p. 21) of presumed outsiders, based on the notion that they ‘cannot be authentic participants of the cultural, linguistic, or religious traditions of the nation they inhabit.’ Xenophobia, then, is rooted in the belief that certain groups of people ‘do not really belong here’, making it conceptually distinct from racism, which operates through racial hierarchies. One illustration of this difference is a national minority that is treated as racially inferior but still seen as part of the nation (rather than belonging elsewhere). Conversely, some anti-immigrant movements have appropriated anti-racist language to argue that their views fall outside the dominant national narrative of racism. The observation that ‘charges of xenophobia offer little traction’ compared to racism should itself prompt scrutiny of why the exclusion of perceived outsiders is more readily accepted.

The idea of a harm-based conception of xenophobia has been transposed into the legal literature by Shreya Atrey, who refers to xenophobic discrimination as the ‘harm of disbelongingness’, which ‘makes people appear as foreigners or outsiders who do not belong to communities they find themselves in and hence excludes them from the social, political, economic and cultural life of those communities’ (p. 83). Atrey thereby challenges the grounds-based notion of xenophobic discrimination, most notably proposed by Tendayi Achiume, who formerly served as the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, and who identifies ‘foreignness’ as the relevant ground. While Achiume acknowledges the composite and intersectional nature of foreignness (pp. 331–334), Atrey argues that the concept is simply too context-dependent to serve as a workable ground. Specifically, it complicates causal analysis and is poorly suited to indirect discrimination claims requiring comparison between clearly defined groups (pp. 100–102). She contends that xenophobic discrimination should instead be treated as sui generis, identifiable in reference to ‘the effect or impact of a particular act, omission, policy, or practice’ (p. 108). 

The following section adopts this harm-based conception to critically examine the ECtHR’s willingness and capacity to counter xenophobia. Atrey’s notion of harm is broad, extending ‘to all aspects of human flourishing of which participation in community life of a village, town, city, state or nation-state is an essential ingredient’ (p. 83). Different kinds of exclusionary practices can lead to disbelongingness, with civic ostracism rooted in context-specific conceptions that may (but do not necessarily) include race. Adopting this expansive notion, the next section distinguishes between three types of xenophobic exclusion in relation to the ECtHR’s case law that, perhaps not coincidentally, correlate with three specific population groups.

Xenophobic harms within and outside the purview of the ECtHR

The concept of xenophobic harm, as defined above, offers a valuable cross-cutting perspective that reveals the Court’s varying capacity and willingness to address the civic ostracism inflicted on those perceived as outsiders. It allows us to view three populations as targets of exclusionary processes and practices that are comparable, yet treated differently by the ECtHR: (i) migrants in transit, (ii) long-term residents and citizens with a migratory background, and (iii) persons with precarious legal status within the territory of State Parties.

The first group—transit migrants not present on the territory of a State Party—is excluded from the Court’s protective scope by Article 1 ECHR. While the state’s right to control entry has long been recognised as permissible, this also effectively removes the most potent forms of xenophobic exclusion from scrutiny. This includes migration control and ‘non-entrée’ practices (visa regimes, carrier sanctions, and externalisation schemes) instituted precisely to prevent the arrival of undesirable migrants and avoid legal obligations under the Convention. To be sure, the Court has found violations in some cases, most notably in Hirsi, where Italy was held responsible for pushbacks on the high seas. In M.N. and others, however, the Court clarified that initiating domestic legal proceedings from abroad does not, in itself, establish jurisdiction. It thus confirmed what many had suspected: that xenophobic exclusions resulting from non-entrée policies are unimpeachable. This limitation should not be understood as a lack of judicial willingness, but rather as the Court’s structural inability to extend its jurisdiction. The Court’s recent and long-awaited inadmissibility decision in S.S. and Others, a case concerning pullbacks by the Libyan coastguard on behalf of the Italian government, can be read in the same light.

A second group consists of individuals who reside lawfully within a state yet continue to be perceived as ‘foreign’ (cf. Atrey, pp. 104–105; Achiume, p. 331). These ‘perpetual foreigners’ include long-term residents, naturalised citizens, and descendants of guest workers or colonial subjects whose belonging remains contested despite a secure legal status. In such cases, the ECtHR has demonstrated greater capacity to challenge exclusionary practices of a xenophobic character. Biao remains the most prominent instance, with the Grand Chamber finding a violation of Article 14 (in conjunction with Article 8) due to a family reunification rule that disproportionately affected Danish citizens of non-European ethnic origin. There are other cases (e.g., Gaygusuz, Koua Poirrez) that highlight the Court’s ability to address discriminatory restrictions in social welfare and education.

That said, the case law also reveals that protection is closely tied to legal status and perceived integration. In Ponomaryovi, the Court distinguished the applicants from ‘individuals arriving in the country unlawfully’ (paras. 60–61). In Anakomba Yula, it even inferred a ‘quasi-regular’ status (Dembour, p. 272) from a brief period of irregularity and efforts to regularise one’s presence (para. 38). In Savickis and others, the Court took this line of reasoning to its logical conclusion by upholding Latvia’s differential treatment of ‘permanently resident non-citizens’ with regard to pension entitlements. This shift towards framing exclusion as a result of personal choice, rather than as state-imposed policy, downplays the xenophobic undercurrents that inform such exclusions. Even settled migrants, apparently, are not conclusively protected from xenophobic harm under the ECHR.

The third form of exclusion operates through legal status. If xenophobic harm is understood as fostering disbelongingness, it finds one expression in civic stratification, defined by the differential allocation of rights through ‘state-created’ legal categories. As I argue in a forthcoming article in the International Journal of Constitutional Law, civic stratification constitutes a particularly entrenched exclusionary mechanism that may short-circuit any human rights framework, with the ECHR being no exception. One key case in this context is Bah, where the ECtHR accepted the UK’s denial of housing benefit based on a child’s conditional immigration status. In the more recent judgment in M.A. v. Denmark, the Grand Chamber distinguished a legal claim based on the ‘particular immigration status of the persons requesting it’ (para. 136). While civic stratification affects rights under the ECHR differently, it is perhaps most deleterious in Article 14 cases. There, immigration status not only fails to trigger strict scrutiny as a suspect ground, but often results in circular reasoning and the conflation of legal and factual elements. My forthcoming article shows that with the exception of baseline protections under the non-derogable Articles 3 and 4, the ECtHR again faces a structural limitation: operating within the dominant paradigm of legal status, it must accept status categories as valid instruments of differentiation and many stratified rights entitlements as legally justified.

In short, adopting the lens of xenophobic harm reveals certain patterns. Some forms of civic ostracism are recognised and constrained by the ECtHR’s jurisprudence; others remain at its margins or entirely beyond its reach. The Court is most willing and able to intervene when applicants are territorially present, legally established, and socially integrated. Where migrants are in transit or fall into precarious legal categories, scrutiny of exclusionary practices declines.

Towards an animus-based approach to xenophobic discrimination

How, then, should the ECtHR respond to xenophobic exclusion? The answer is admittedly not straightforward. Atrey’s harm-based conception of xenophobia may offer valuable insights into structural exclusion but ultimately casts too wide a net by capturing harms beyond the Court’s reach. The introduction of a doctrine of xenophobic discrimination will not suddenly make the Court more capable of addressing externalised migration control or status-based civic stratification. As explained above, a grounds-based approach centred on ‘foreignness’ is likewise difficult to operationalise, given the context-specific and composite nature of the category. In short, neither is workable as the basis for a theory of xenophobic discrimination.

By contrast, an animus-based approach may offer a more feasible path forward. Borrowed from U.S. equal protection jurisprudence in cases like Windsor, which dealt with the question of same-sex marriage, it would define xenophobic discrimination as state action motivated by a desire ‘to disparage and to injure’ (p. 25) those perceived as foreign. This would shift the focus to the purpose behind policies, adding another factor to the (still present) element of harm. Under this approach, the ECtHR would examine the broader context—legislative history, political rhetoric, procedural anomalies, and lack of legitimate justification—to detect when animus is present (cf. Carpenter, pp. 224–225). Where it is, the State Party would be deemed to have engaged in direct xenophobic discrimination, provided the facts fall within the ambit of a substantive ECHR right.

To be clear, xenophobic discrimination under an animus-based approach would not be limited to cases where foreignness is explicitly invoked; other factors may signal xenophobic intent. Animus can manifest procedurally; for example, in a reluctance to assess harm in advance, the use of emergency laws, and departures from standard considerations such as administrative burden (Carpenter, pp. 244, 273). Because this approach targets direct discrimination, it avoids the need to identify a specific disadvantaged group, which is otherwise required to establish disparate impact (cf. Atrey, p. 102). The fine-grained analysis of animus would equip judges with tools to detect justifications that are merely ‘makeweight or pretextual’, thereby addressing the problem of ostensibly neutral state action. In the context of migration, which arguably perpetuates myths more than any other policy area, it is especially important to scrutinise the genuineness of government rationales. Broadly framed laws are less likely to provide credibly objective motives (Carpenter, pp. 211–212), making this approach especially well-suited to counter disproportionate and exclusionary policy measures.

An animus-based approach to xenophobic discrimination would not require a radical departure from existing ECtHR jurisprudence. For instance, migration control would not automatically be deemed discriminatory, as it can be justified by legitimate policy concerns rather than a mere intention to harm migrants in transit—more specifically, concerns regarding migrant reception and the maintenance of welfare and other state services. However, this approach would allow for more persuasive reasoning in ‘perpetual foreigner’ cases like Biao, where direct discrimination and the ideology behind the attachment requirement could have been explicitly challenged (issues already highlighted by Judge Pinto de Albuquerque in his concurring opinion to that judgment). Similarly, in Bah (at para. 48), it could have prompted greater scrutiny of the government’s suspiciously shifting justifications (initially centred around the trope of ‘welfare tourism’, which the Court tellingly places in quotation marks), even if the outcome would likely have remained unchanged.

More significantly, an animus-based approach would strengthen the Court’s ability to respond to new realities and challenges. Across Europe, increasingly harsh migration policies appear driven less by necessity than by political efforts to capitalise on (or contain) anti-migrant sentiment. Recent examples include proposals in Germany to reject asylum seekers at the border, sweeping emergency laws in the Netherlands targeting asylum procedures and family reunification, and Poland’s suspension of the right to asylum for arrivals from Belarus. These measures, each highly questionable in terms of effectiveness, reflect above all a desire to exclude, despite their human rights consequences. While the principle of subsidiarity requires that national courts address such issues first, the ECtHR should be prepared to intervene decisively, including under Article 14, when domestic remedies fail.

Concluding remarks

Earlier this year, Poland’s Deputy Interior Minister sought to assuage MPs about the impact of asylum restrictions by stating: ‘[w]e are only talking about suspending the rights of migrants’. This entry has argued that the ECtHR should develop an animus-based approach in order to respond to such instances of xenophobic discrimination. It has also demonstrated that there are compelling conceptual reasons to do so: xenophobia is a distinct phenomenon that may often overlap with, but cannot fully be subsumed under, racial or ethnic discrimination. It produces tangible inequalities that result in human rights violations and therefore merits recognition by the Court, including under Article 14. Most fundamentally, the understanding that prevailed prior to Basu, in which xenophobia appeared to manifest only in individual speech acts, is no longer tenable. As anti-migrant sentiment continues to drive rights restrictions, and as some European heads of government now openly call on Strasbourg to show even greater deference to state parties in migration cases, reality is bound to catch up with the Court. Whether it meets that challenge with a principled stance or quiet retreat is, ultimately, a choice the Court will have to make.