The non-national as 'the other': what role for non-discrimination law?

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.