Introduction: Integration through Nondiscrimination¹

From a legal point of view, the whole concept of integration underlies the idea of equality in rights, entitlement, and the exercise of rights. This paper aims to show the possibilities of using anti-discrimination law to achieve migrant integration, and to clarify, from a perspective of access to justice, under which conditions this should occur. The reasoning and measures this perspective relies on may have purposes of recognition and redistribution effects. In this regard, a certain theoretical and practical priority should be given to redistributive policies since they underpin conditions for effective equality. This hypothesis, considered the most appropriate to address discriminatory processes and social and institutional patterns of discrimination, does not, however, disregard the paradoxes raised by political and legislative proposals both in the area of antidiscrimination law (^{Fredman, 2011:109}) and also migration law.

The European Union has undergone major developments in two aspects related to the contents of this article: on the one hand, equality directives, and on the other, attention to, and measurement of, integration in the different countries of Europe. In this regard and as part of the European justice, freedom and security plan (2010-2014), the Migrant Integration Policy Index (Mipex) came about, and it has become a reference guide, the aim of which is to collect and provide information to evaluate, compare, and improve integration policy. The report is based on the hypothesis that showing the higher levels of integration achieved by some states through the identification of achievements and obstacles in key areas may improve integration objectives in the other states (^{Huddleston and Niessen, 2011:5}). The areas include: labor market mobility, family reunion, political participation, long-term residence, access to nationality, antidiscrimination, and education.

However, this context still leads to certain paradoxical approaches. The first paradox is characterized by a two-sided regulatory approach to regular and irregular, or undocumented, immigration (^{Añón, 2013a:17-25}). First is the regular immigration channeled through the framework of mainly soft law recognition of integration and antidiscrimination measures. Second is the regulation synthesized in the European Directive on standards and procedures in member states for returning illegally staying third-country nationals, adopted in 2008 by the European Parliament, better known as the "Return Directive" and which was soon labeled the "Directive of Shame."

The second paradox arises from the contradictions found within the legal instruments of migration policies, particularly those that still fulfill an important function in the social construction of reality and which do so today with underlying currents of racism and xenophobia, but with new features. We are thus faced with a "differentialist" racism that continues to call for discriminatory treatment on the pretext of different cultural identity/-ies, but which gives rise to a construct of foreigners as impossible to integrate or incompatible (^{De Lucas and Añón, 2013:43}). In the laws governing immigration and asylum in recipient countries of population displacements, one may speak of an "institutionalization" of racism and xenophobia. The social construct of the immigrant-particularly irregular immigrants, and above all irregular women ones-and its consequences in terms of denial or curtailment of rights (marriage, family unit, minors), is an improper transposition of any legal logic of assumptions and analogy. The ethnic marker, as ^{Castel (2007:11-14)} argues, is not taken into account in order to invalidate it or to cancel out its relevance as a disadvantage, but to drive the "nail of discrimination" even farther in. Difference as a trait thus becomes an indelible defect that strengthens inequality and has ramifications for exclusion and social cohesion. Hence, the assertion that the fight against racism and xenophobia has not lost its raison d'étre; rather, it has to undergo a transformation and must be addressed as a product of social and ethnic conflict (^{Castel, 2007, 2010}).

The need to combine integration and antidiscrimination measures seems clear (^{Guiraudon, 2009:527-549)}. In general, as Esteve states, " [T]he authorities are reluctant to address issues of discrimination, their policies refer to integration rather than to 'non discrimination' and it is difficult to accept that the best integration is precisely that which guarantees nondiscrimination" (2012:26). This is a conclusion that has been reached in various fields. The Migrant Integration Policy Index (Mipex) makes it clear that integration policy improves significantly and consistently when countries advance their policies on discrimination and equality (^{Huddleston and Niessen, 2011:10}).

Europe is immersed in debate. On one hand, its self-proclaimed European Agenda for the Integration of Third-Country Nationals 2011, which states, "Europe needs a positive attitude towards diversity and strong guaranties for fundamental rights and equal treatment, building on the mutual respect of different cultures and traditions," a proposal aimed at increasing the economic, social, cultural, and political participation of migrants and which places emphasis on local action. And, on the other hand, state immigration policies characterized by new elements that create obstacles for labor migration and integration, as they now require the acquisition of minimum qualifications before starting the migration process, whereas in the past this was offered in the host country upon arrival. Labor migration has become something much more complicated and arduous in many European countries, and is even a matter of public order and state security (^{Bijl and Verweij, 2012:11}).

The underlying logic of integration, as a two-way process by which the recipient society has to give immigrants the opportunity to occupy a place in it, is changing and all the weight has now shifted to immigrants being able to fulfill their duties; in this way a conception of integration as the basis of positive social inclusion has come to be identified with a mechanism of control (^{Solanes, 2009}, ^{2013:14, 32-33}). Today in the European Union there is a range of data indicative of the need for a policy shift particularly, but not exclusively, in the labor market. From these data, ^{Bijl and Verweij (2012:15)} underline the predominantly low employment levels among immigrants, especially immigrant women, growing levels of employment for the highly skilled, greater risk of social exclusion, great differences in educational outcomes and certain public, mainly local, commitments with regard to failures in integrating the immigrant population.

I shall examine the thesis according to which nondiscrimination towards foreigners is the indisputable path to integration. Integration crucial for both welfare and social stability and for economic development, because inequality and exclusion, as the 2013 Human Development Report asserts, are injustices that undermine fundamental human freedoms (^{PNUD, 2013:34-38}). The discrimination that more directly affects immigrants is discrimination on racial or ethnic grounds. From the point of view of principles it is undoubtedly relevant that the European Court of Human Rights (ECHR) held that "no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures" (^{ECHR, 2009b}).

The Persistence of Racial and Ethnic Discrimination

Studies by Spain commissioned by the Council for the Promotion of Equal Treatment and Non-Discrimination Against Persons on the Grounds of Racial or Ethnic Origin (2010:39-47) confirm the fact that discrimination against people on the grounds of their racial or ethnic origin is still present in our societies, and that it is not diminishing, but becoming increasingly evident. These studies provide ample information on the following: group profiles, areas of discrimination, opinions of the host society, and the response to acts of discrimination.

The profiles show that in Spain the population groups that experience the greatest number of acts of discrimination are the Roma population and immigrants and, among the latter group, those from North Africa. The Roma community in Spain is the group that is subjected the most to intolerance and rejection by the majority population.

Looking now at the areas where instances of discrimination have occurred most often, these are-in individual cases-access to goods and services, treatment by law enforcement agencies, and employment. Cases of collective discrimination occur primarily in employment, media, and access to goods and services.

This is compounded by considerable disparities in levels of awareness and perceptions of discrimination; notable in this respect is the fact that around 70 percent of people indicated that they had not, in the first instance, felt discriminated against personally, but when questioned about specific situations they acknowledged that they had experienced them. Opinion polls assume that there is no discrimination in a society such as Spain (^{Cea, 2011:215}). Yet a combination of multivariate analytical techniques show, in keeping with Cea de Arcona's analysis, that the rejection of immigration as measured in surveys is mainly externalized in opinions like the following: the denial of social rights and citizenship to immigrants; to a notable degree, voting rights, naturalization and family reunification; the tacit rejection of living with immigrants; the desire to toughen up immigration policy and opposition to the regularization of economic migrants and the admission of political refugees; the stereotypical negative image of immigration, which associates it with an increase in crime and worsening working conditions; denial of the existence of discrimination on the grounds of racial or ethnic origin, blaming immigrants for shrinking public resources and job opportunities and flocking to the banner of national over foreign (in access to health care, education, the labor market); lukewarm penalization of racism and acceptance of political parties with a xenophobic ideology; playing down acts of violence against immigrants; fear of immigrants settling; taking a position against family reunification policies.

Another important factor is the limited response to discrimination. Complaints are only filed by about four percent of people who consider themselves victims of discrimination. The study by the Council for the Promotion of Equal Treatment and Non-Discrimination Against Persons on the Grounds of Racial or Ethnic Origin found that many people who are victims of unfavorable treatment are either unaware of it or simply do not assert their rights by reporting these incidents (2010:39-53, 141-148). There are many reasons for this, but it is very likely that one of them is the lack of trust that these people have in the effectiveness of justice. The low figures for individuals who have experienced discrimination filing a complaint coincide with data from the EU-MIDIS report (^{FRA, 2009:34-57}), which studies the results of a survey, conducted in 2009, of 23 500 EU citizens who belonged to racial or ethnic minorities or were immigrants. The report concluded that 82 percent of those who said that they had been discriminated against in the previous twelve months had not reported the incident, and 64 percent had not done so because they were convinced that their complaint would not change anything. Over a third of respondents had felt personally discriminated against in the previous 12 months. Twelve percent of respondents claimed to have been the victim of a crime they perceived to be motivated by racial discrimination; discrimination when looking for work and at work was the area of greatest discrimination.

Yet there is little awareness of the importance of combating racism and racial discrimination; hence the weak institutional response to this issue. Proof of this is the inadequate structure for collecting data on the implementation of the new European framework, as well as on the number of complaints, the results achieved, and the reparation or compensation awarded. In Spain, weak points include insufficient data on acts of racism and racial discrimination (^{ECRI, 2013:5-7}). Transposition of European antidiscrimination law has not been optimal in Spain, although it can lay claim to notable institutional aspects such as the creation of the Council for the Promotion of Equal Treatment and Non-Discrimination Against Persons on the Grounds of Racial or Ethnic Origin³ and the prosecutor's special hate crimes and discrimination service.

An Overview of Discriminatory Acts

Antidiscrimination regulations concerning immigration and nationality are basically contained within Articles 3 and 23 of LOEX (Aliens Act) implementing regulation ratified by Royal Decree 557/2011, and Articles 314, 510, 511, 512 and 515.5 of the Criminal Code, which define the various offenses related to discrimination (^{Parlamento Español, 2000}, ²⁰¹¹, ²⁰¹⁵).

This section examines some of the acts that may be classified as discriminatory in migration law, and which give counterfactual proof to the notion that Spain is not a country where racism and discrimination based on ethnic origin occur. Article 23 of loex refers to "discriminatory acts" in Chapter IV, on antidiscrimination measures. The provisions of Article 23.1 are based on Article 1.1 of the International Convention on the Elimination of all Forms of Racial Discrimination, stating: "For the purposes of this Law, discrimination is any act which, directly or indirectly, entails distinction, exclusion, restriction or preference against a foreigner on the grounds of race, colour, descent, national or ethnic origin, convictions and religious practices, and which has the purpose or effect of nullifying or impairing the recognition or enjoyment, on an equal footing, of human rights and fundamental freedoms in the political, economic, social and cultural spheres." (^{Parlamento Español, 2000}, ²⁰¹¹, ²⁰¹⁵).

This legislation therefore introduces a concept of discrimination in line with international human rights standards, as well as the fundamental distinction between direct and indirect discrimination. There are some aspects that differ from the directive which, in any case, should be interpreted in such a way that they favor rights and are in accordance with Protocol No. 12, which requires objective and reasonable justification of any difference in treatment (^{Council of Europe, 2000}). It also stipulates that no one may be discriminated against by a public authority, which has an obligation to guarantee nondiscrimination, may not discriminate in the exercise of discretionary power, and may not discriminate by act or omission.

The second paragraph of Article 23 LOEX raises more problems, as it describes what constitute acts of discrimination. This description, considering its scope, is inaccurate and wrong, and has certain points in common with general alien law: legal uncertainty, presumption of illegality, disregard for the rights of foreigners, and exceptionality (^{De Lucas, 2012:15}). To focus on the grounds for an act of discrimination, ^{Rubio (2006:626)} points out that there is discrimination in Spanish law when a right or particular freedom as established by law is denied to a foreigner or a restrictive interpretation of the content of their rights is made. Acts of discrimination are those that directly or indirectly entail distinction, exclusion, restriction, or preference against a foreigner on the grounds of their race, color, descent, national or ethnic origin, convictions, and religious practices. But this legislation should be linked to Article 14 of the Spanish Constitution (^{Parlamento Español, 1978}) in such a way that the list of discriminated characteristics should also protect those listed therein. The purpose or effect of discriminatory acts is the impairment of the recognition or enjoyment, on an equal footing, of human rights and fundamental freedoms. The distinction between purpose and effect refers to intentionality in the discrimination, which may be both desired (purpose) and without intentionality (effect or result), and which essentially coincides with direct and indirect forms of discrimination (^{Añón, 2014:118-124}).

In relation to the acts defined in the law as discriminatory, brief reference may be made to the following:

Discrimination and Access to Justice: An Approach from the Right to Effective Access to Justice

The starting point is the hypothesis according to which integration policies improve when antidiscrimination laws and policies are developed. In this field, framed by antidiscrimination law, the right of access to justice and associated rights are essential. The Migrant Integration Policy Index (^{Huddleston and Niessen, 2011:24}) establishes parameters for assessing the development of nondiscrimination policies, outlining the achievements of the strongest and weakest countries.⁴ But the report also shows the average country is characterized by some traits. In most areas, discrimination on the grounds of race, ethnicity, or religion is prohibited. But other categories such as nationality are not circumscribed and are not afforded the same protection. When a victim seeks redress they may benefit from financial aid, an interpreter, and reversal of the burden of proof. NGOS dedicated to the promotion of equality do not have sufficient legal capacity to represent victims or to lead collective action. There are few equality bodies with full legal capacity and the independence necessary to provide assistance to victims. The main weakness is the equality policies, and this inadequacy, linked to dwindling funds, may have a very negative impact on access to justice in many countries (^{Huddleston and Niessen 2011:24}).

Ensuring access to effective justice in cases of discrimination may be considered a justice response in the sense proposed by ^{Fraser (2003:83)}. A response that surpasses both the limits of a simple economics-based view and the weaknesses of a culturalist perspective that states that maldistribution may be remedied through recognition. It is a response that can embrace the demands of cross-cutting redress and transformative redistribution on a limited scale. Transformative redistribution comes about through measures designed to increase and/or redistribute income intended to strengthen the capacity to avoid harm associated with status, from an approach that promotes the right to social welfare above assistance programs that stigmatize their beneficiaries. This transformative remedy to maldistribution has the potential to reduce misrecognition, and is especially useful in combating racism. Cross-redressing also includes measures associated with recognition, by way of greater respect for groups that are socially spurned due to subordinate status, e.g., overcoming discrimination in access to housing, credit, and employment. In these cases, recognition may help because they are situations where distributional issues are linked to status subordination. As is well known, ^{Fraser (2003:40, 42)} posited a bivalent conception of justice that does not attempt to synthesize recognition and distribution, but that speaks of two perspectives, two mutually irreducible dimensions of justice that would nevertheless coincide in a key criterion of justice: parity of participation. This is a criterion of justice that has two conditions. One is related to the distribution of goods that ensure the independence and voice of all participants, precluding those social arrangements that institutionalize deprivation, exploitation, or great disparities in wealth that keep some people from interacting as equals. The second condition precludes the institutional schemata that systematically depreciate certain categories of people and therefore rejects institutionalized social and cultural patterns that deny certain people participant status.

In this regard, the right to free legal aid may be a step towards social justice in terms of access to justice, as an expression of the parity of participation. There are clearly different parameters and levels of development of the legal aid. First of all, effective access to justice comprises a range of situations or possibilities admitted by legal systems: citizens' knowledge of their rights and the means to exercise them; access per se through some kind of institutionalization of free legal aid for those without the means to take legal action; the availability of a justice system capable of delivering a correct decision on the merits of the case within a reasonable time period; and the possibility of completing proceedings in full, so that the outcome ultimately depends on the legal merits of each part of the process, and in sum that it has satisfied the regulatory principle of "equality of arms" (^{Capelletti and Garth,1996:20}).

Let us consider how important it is for potential litigants in this area of law to be aware of their rights, the violation of said rights, and the possibility of finding redress through the courts (^{Gloppen, 2006:46}). Often, those whose rights have been severely violated lack this knowledge. The first barrier is therefore overcome by recognizing that there is a legally enforceable right, followed by the degree of knowledge and information required to file a complaint. However, these obstacles, according to Cappelletti and Garth, have more or less impact depending on other aspects, such as the parties, institutions, and actions involved.

The difficulties gaining access to justice that affect large sectors of the population, especially vulnerable groups (^{Gloppen, 2006:45}), are related in particular to financial problems, but also to other variables such as lack of information, corruption of the justice system, the formalism that surrounds the judicial institution, the fear and mistrust it generates, delays owing to its decision-making system and other-even geographical-barriers that stand between citizens and judges. The greatest obstacles include temporal restrictions on access and on the proceedings,⁵ the issues of active and passive legal standing, costs and court fees,⁶ the complexity of the legislation and the formalities and structure of the judicial system, substantive and procedural law. Gargarella refers to it as a "situation of opportunity" defined through the formal or "systemic" barriers and the informal barriers of the search for justice or redress through the judicial system (^{Gargarella, 2006:120}). So there are various impediments that are significant enough to condition the right of access to justice. However, the focus shall be on those that are particularly relevant to antidiscrimination protection and among these, on those related to knowledge of rights and the means to exercise them.

Legal aid as a right to give effect to the access to justice raises a number of core issues that must be addressed, particularly in regard to combat discrimination by individuals such as third-country nationals in Spain.

First, it requires a reflection on the consideration law in itself, to strengthen the idea of the right to free legal aid as a fundamental social right, as a justice guarantee not only individually, but also as a constitutional value and a key component of the rule of law (^{Añón, 2013b:292}). This also includes deepening the necessary relationship among the right to free legal aid and other fundamental rights such as equality, the right to effective judicial protection, and the right to legal assistance.

Access to justice has two central dimensions that characterize it as a social and a fundamental right. ^{Cappelletti and Garth (1996:10-13)}, in their now classic analysis, noted that access has the potential to bring to bear two basic objectives of the legal system by which people may assert their rights and resolve disputes within the state. These are equality of opportunity and quality of outcome. The system must be equally accessible to all and should result in outcomes that are individually and socially just. Therefore, on the one hand, and in a broad sense, this is understood to guarantee real and effective equality in accessing state institutions, bodies or powers that generate, implement or interpret laws and set standards, including those that-according to ^{Birgin and Kohen (2006:20)}-have a particular impact on social welfare. Hence their centrality in a democratic society (^{Gloppen, 2006:37}). Moreover, access to justice includes the means, particularly those of a procedural nature, which are adopted in order that people may resolve their disputes and protect their rights in the courts of justice and, in general terms, before the corresponding institutions.

Concurrently, this also means keeping legal aid as a public service, as part of a fundamental right-the right to effective judicial protection-publicly funded. This is the last defense of those most disadvantaged, the most vulnerable groups such as immigrants in Spain. This is an increasingly more needed right, while there are an increasing number of people with incomes below a sufficient level to litigate.

Effective judicial protection is interpreted both by those different laws that have regulated the legal status of aliens in Spain, and the Constitutional Court as a fundamental right equally entitled for nationals and aliens. Thus, the right to free legal aid and legal assistance is considered an essential right, needed as a universal human right. The judgment of the Spanish Constitutional Court 95/2003 is critical at this point acknowledging that aliens settled in Spain are entitled to free legal aid regardless of their legal status. Following the Judgment 236/2007, it expressly recognizes a profound relationship to international human rights and fundamental rights in its legal basis (^{Tribunal Constitucional Español, 2003}, ²⁰⁰⁷).

The determination of this institution in Spain, however, has even more critical aspects according to the reform of free legal aid legislation, which is pending approval. Indeed, the Draft Bill on Free Legal Aid of February 24, 2014, maintains the recognition of the right to Spanish, EU nationals, and aliens who are settled in Spain, having to prove all of them the lack of financial resources to litigate (Article 2). This reform introduces higher requirements in terms of access, in income levels (Article 3), and in the content, which now, however, reaches all jurisdictions, and those cases in which legal assistance is mandatory. The legal reform has been criticized by the General Council of Spanish Lawyers because, ultimately, it introduces difficulties in access to justice and undermines the rights of citizens in general, not just immigrants (^{Parlamento Español, 2014}).

A second core issue of legal aid is the importance that legal advice deserves as an essential element for success in legal proceedings and before administrative and judicial institutions, as many institutions supporting the most vulnerable groups submitted (^{FRA 2012:50}).⁷ The main barrier to the access to justice for many people is to count on appropriate legal advice, by legal advice services in bar associations, to guide citizens, and to clearly explain to them the sustainability of the claim. In this sense, the legal ways of obtaining legal aid and advice are essential, as well as the attempt to use technical language to improve the understanding of the legal situation, options among procedures, and their possible consequences.

The survey and report by the European Union Agency for Fundamental Rights in eight EU states confirms this hypothesis by examining the availability, quality, and accessibility of legal advice and assistance. It distinguishes between the points of view of complainants, lawyers, and other intermediaries and equality bodies (^{FRA, 2011:47-54, 2012:49-50}).

There is a general recognition of the difficulties of procuring the services of lawyers specialized in discrimination cases and affordable quality advice. The complainants particularly value systems in which this advice is provided for free or through insurance. In this environment it is understood that initial advice and assistance include: explanation of the regulations contained within legal texts on equality (national and EU directives); the form and procedure of filing a lawsuit or complaint; its content; the identification of lawsuit or complaint alternatives; possible outcomes; subsequent steps in the procedure; and information on mediation or other alternative forms of dispute resolution. This advice helps complainants to clarify their goals and how to approach the case. Explanations of legal terminology and the system of access to justice as well as a professional description of the risks and prospects for the proceedings are especially appreciated at this early stage (^{FRA, 2012:50})

A broad analysis of this area leads to the conclusion that there are a number of indicators that promote the knowledge of rights and the availability and accessibility of information. Conversely, when these indicators are absent or inadequate, there are major repercussions in the area that was initially highlighted: low levels of awareness about situations of discrimination and a lack of response or complaint (^{FRA 2012:53}). This is undoubtedly influenced by the political reluctance to combat discrimination and to place racial and ethnic discrimination on the political agenda, and the political permissiveness regarding expressions of animosity towards certain population groups. The approach of the media to groups at risk of discrimination is not always constructive, and this is compounded by the lack of resources available to the equality bodies and other entities to promote a culture of fundamental rights.

Basic conditions include the availability and accessibility of legal assistance at all stages of the processes in each legal system; certainly, the complexity of the processes and the technical nature of the language do not facilitate these conditions. This includes: independent institutions specialized in antidiscrimination; the development of communication strategies on these rights within the framework of equality legislation and on the existence, nature, and tasks of each body and complaint submission guidelines; and the development of good practice guides to promote equality and combat discrimination. It also includes: specialized training for lawyers and the quality of relationships that they develop as advisers to the complainants; the qualifications of the professionals who provide advice and support as well as the competencies developed and incorporated into their legal knowledge, in order that they may engage with experiences of discrimination across a variety of people or interdisciplinary teams; and the exchange of information, training, and references between organizations that provide advice and support to victims of discrimination. Other relevant aspects are the personal, moral, and emotional support of victims by equality bodies and other intermediary institutions. The development of cooperation and support networks for specialized knowledge by media professionals, social partners, and politicians, who should have at least some basic working knowledge of antidiscrimination law. Finally, the development of networks by organizations in the field of human rights to identify the practical needs of individual complainants and how best to respond to them.

The aforementioned barriers or obstacles are interrelated, and it will be difficult to introduce reforms that are effective and that affect only one of the aspects involved; this is a situation analogous to that of the advantages and opportunities. Moreover, the obstacles have a greater or lesser influence depending on the conditions and the manner in which they are addressed. Their effects are more negative in situations in which the complainant is isolated or acting individually, where individuals do not have sufficient resources to litigate, the complaints are minor, the advisers and lawyers have no specialized knowledge, there is no case law in the higher courts, or no victim support institutions. Conversely, those with greater access to advice and information, who under-take the litigation and make use of all legal resources and existing networks in their own interest, are at an advantage. Turning barriers into opportunities undoubtedly requires framing the right of access to justice as a measure of cross-redressing and transformative redistribution. A measure aimed at strengthening the capacity of people to avoid the negative consequences associated with their status and increasing respect for socially neglected groups, thus helping to provide support networks that maximize the possibility of claiming a right and make it effective. This leads to a framework characterized by elements such as that residents of a state have the means to combat discrimination and benefit from the same opportunities. Residents may file a case in court on any form of discrimination, racism, and incitements to hatred. These forms of discrimination are prohibited in all areas of public and private life: employment, education, housing, and social protection. The victims are able to access justice because there are institutionalized mechanisms for this, as well as independent bodies and NGOs that take part in the process. The courts have a wide range of measures and sanctions at their disposal to prevent, deter, and correct discrimination. The state also adopts positive duties and actions that encourage the creation and implementation of antidiscrimination policies in other institutions.