This chapter introduces the mechanisms of deliberate or coincidental 'othering' of immigrants through law and the application of law. It starts by introducing what 'othering' means and then transplants the findings into the context of legislation and law. The chapter emphasizes the systemic 'otherness' of immigrants in a legal system defined by the nation state. Citizens are per definition in the in-group, whereas foreigners are per definition in the out-group. The chapter also addresses how the differentiation between foreigner and citizen is more complicated in the EU with its EU citizenship and free-movement rights. The chapter addresses the role of law as an amplifier of 'otherness' or as a tool for the inclusion of immigrants.

This chapter combines a critical reflection of the approach underlying the contributions to this volume with a forward-looking inspection of research questions for the future. At an analytical level, it discusses how to address the linkage between legal developments and broader debates to distinguish situations of overlap from scenarios of mismatch when legal rules are not influenced by discursive ‘othering’ or may even serve as a counterpoint. From a methodological perspective, this chapter presents different options of how to integrate interdisciplinary impulses into doctrinal analyses by combining the ‘negative’ critique of 'othering' with a ‘positive’ reconstruction of the legal material. Conceptually, we should be careful not to overestimate the role of migration law for ‘othering’ processes, which may reflect broader transformative processes or overestimate the relative (in)significance of migration law for the lived experience. This chapter concludes with an argument that no form of migration control should be equated with ‘othering’ and that we should enquire, rather, to what extent the motives or effects reflect degrading or exclusionary tendencies.

After a series of decisions, the Court of Justice of the EU has been accused of undermining the value of Union citizenship as a tool to overcome the confines of ‘market citizenship’, thereby conferring residence and equal treatment rights to all Union citizens, regardless of economic status. This chapter argues that, rather than ‘abandoning’ Union citizenship, the Court has evolved its approach in these cases following the adoption of Directive 2004/38. The Court treats residence and equal treatment rights under the Directive as a closed system, with lawful residence under Article 7 of the Directive being the gateway to citizenship rights. Whilst this is legally coherent, strict reliance on the Directive is liable to create problems, particularly for low-wage workers and the economically inactive. The closed system of residence and equal treatment rights potentially results in more insecurity when (i) Member States systematically check the individual’s residence status when assessing social assistance claims; (ii) the individual applies for permanent residence status and must prove lawful residence for a continuous period of 5 years; and (iii) returning to their home Member State with a third country national spouse following a period of residence in a host Member State.

The reception of asylum seekers in Europe is a highly debated topic: while national governments oversee the implementation of reception conditions, European member states are bound by European directives on minimum standards. Asylum seekers in collective reception facilities should be provided with at least a minimum of reception standards, including housing, food, material reception standards, and legal assistance. However, reception practices not only largely differ across member states but also constantly draw boundaries between asylum seekers and the host society through geographical, architectural, and bureaucratic measures. Using case studies from Austria and Italy, this contribution investigates how, on the one hand, certain (minimum) standards are applied in relation to restrictive integration claims and discourses and how, on the other hand, resources (e.g. for integration measures or housing) are strictly bound to exclusive structures that complicate the inclusive partaking of refugees in host societies. It highlights the mechanisms whereby national reception practices amplify the ‘othering’ of migrants in the context of asylum seeking.

This chapter focuses on EU laws and policies on family reunification in order to demonstrate how they create new ‘others’. The creation of Union citizenship disrupted the binary logic of ‘national’ and ‘foreigner’ in national immigration regulation even though, at first sight, it seemed to have recreated it at the EU level as the ‘EU citizen’ and ‘Third Country National’ (TCN). However, on a closer look, it becomes apparent that the new picture is much more complex, as a new hierarchy of statuses with different packages of rights has been created at the EU level for nationals, EU citizens, and TCNs alike. This chapter compares and contrasts family reunification rights of Union citizens and TCNs granted under the Treaties, international agreements, and secondary EU law and sheds light on the different degrees of ‘otherness’ and privilege created at EU level.

The chapter focuses on the processes of political differentiation as triggered by the refugee crisis of 2015. It maps them on an empirical level by studying the reactions of major political actors in the Czech Republic. Furthermore, the chapter abstracts a general theory of political differentiation, i.e. political 'othering'. It shows how the degree of differentiation can be approximated to a strong anti-liberal position mirroring the dichotomy between friend and foe. Outcomes of the differentiation processes are confronted with selected principles of modern constitutionalism, i.e. the principles of human dignity and democratic governance, that are endangered by the persistence of an extreme degree of hostile group differentiation.

The Schengen Agreement was meant to create a 'borderless Europe'. Yet, from the outset, countries have had a very ambivalent relationship to what Schengen stood for politically – an enhancement of the economy – and what it meant in practice: not being able to properly monitor the movement of flows of people across intra-Schengen borders. Whereas there should be no borders for so-called bonafide, or trusted, travellers, the lack of border control was seen as problematic in keeping out the 'crimmigrant other': the irregular migrant, the criminal migrant, the terrorist migrant. By investing in various modalities of the policing of movement and mobility, one could say that the border is everywhere in an area that was meant to be borderless and that the process of 'othering' is central to its functioning. By bringing together the literature on 'othering' and 'bordering', this chapter considers the utility of borders not just as sites of enquiry in their own right but as ‘epistemological viewpoints’ from which to analyse the processes of differential 'othering' that are at the core of bordering practices in intra-Schengen border zones.

EU citizens living in the United Kingdom and EU citizens-qua-UK nationals living in other Member States following the referendum on the UK’s continued membership of the EU on 23 June 2016 became ‘the numbered’ 'others'. Their identities were redefined overnight not by them, but by state authorities and their co-EU citizens. In this chapter, I trace the process of 'othering' of EU citizens, which had started several years before the referendum in 2016, and unravel the key moments, forces, and strategies that made it possible by utilising a discursive theoretical approach. I argue that the quest for EU citizens’ rights in the UK under Brexit, just like the quest for migrants’ rights, is a quest as much for the realisation of the fundamental status of Union citizenship as for the effectiveness of the principle of respect for human dignity.

This chapter explores the different levels of ‘legal otherness’ in European Union law in the context of expulsion and entry bans. It is based on the premise that deportability constitutes a clear indicator of 'otherness' and that the lack of a secure residence status marks an individual as an outsider. This contribution examines the impact of a foreigner’s nationality and the duration of her or his residence in the ‘host’ Member State on the level of ‘legal otherness’ as it emanates from the person’s protection against expulsion. The different levels of 'otherness' are analysed against the background of the rationale that a secure residence status has an inclusive effect and is conducive to the foreigner’s integration. A low level of protection against expulsion and an insecure residence status, by contrast, have exclusionary effects and are capable of hampering the foreigner’s integration into the society of the ‘host’ Member State.

This chapter argues that non-discrimination law can and should offer enhanced protection against legal ‘othering’ of foreign nationals in the EU. It starts from the premise that some states offer much better value, in terms of rights, resources, and ultimately life chances, than others. Once this unequal distribution is brought into the picture, it becomes clear that nationality functions as a mechanism of exclusion vis-à-vis nationals of ‘low value’ states (and stateless persons) whose access to rights and resources is limited both in countries of origin and in ‘high value’ states where they are not recognised as (full) members. Relying on recent theories of non-discrimination law that focus on stigmatisation as a root cause of discrimination, this chapter proposes to combine increased scrutiny of nationality as a stigma-carrying attribute with due regard for its legitimate function in maintaining viable political communities.

This chapter brings together the findings of the other chapters and emphasises some common trends that came back repeatedly in the preceding chapters. The chapter starts with the general rigidity and stickiness of legal norms in the area of immigration and asylum. As a result, procedures, implementation, but also interpretation of these norms are changed more often than the norms themselves. On the EU level, the phenomenon called ‘reverse harmonization’, which led to vague legal norms, contributes to the discretion to install procedures on the national level leading to deliberate bureaucratic 'othering'. The chapter also highlights economic and cultural 'othering' as common treads throughout the book. The chapter concludes with some thoughts on what the treatment of the 'other' says about European Societies and what can be done to stop 'othering'.

The State’s legal obligation towards refugees comprises granting protection and conferring post-determination rights. This chapter queries how the UK discharges its legal obligation to facilitate refugees’ engagement with work and whether it contributes towards their ‘othering’. It examines the Syrian Vulnerable Persons Resettlement Scheme (VPRS) as a case-study, assessing how ‘resettled’ refugees access support to labour market integration through various organisations and actors, comparing the support provided to them with the assistance available to ‘recognised’ refugees. The latter are those who have reached the UK by their own endeavours, applied for asylum, and been granted refugee status. The study has demonstrated how diverse networks of organisations and state actors facilitate or inhibit refugees’ access to the labour market, counterbalancing State actions on integration.