The Resilience of Implicit Exclusion in EU Migration Law – How the Law Helps Those Who Separate ‘Them' from ‘Us'

In a time of economic crisis, social divides become particularly visible. They affect notably minorities. Looking at the area of immigration, the proposed paper will examine how law in the EU and the Member States contributes to these social divides and undermines social cohesion. Underlying is the fact that minorities at large and immigrants in particular tend to be conceived of as ‘others’ by the receiving society and legislators. This raises the question of the construction and effect of ‘otherness’ in legislation. Is legislation influenced by prejudice against immigrants, and, in turn, do the effects of legislation, such as the marginalization of groups of immigrants, then help those political forces who lobby against immigration in the first place? The paper will look at examples on EU and national levels in one of the most sensitive areas of immigration legislation, namely rules in place governing family migration, to see whether such mechanisms of exclusion in the law can be identified. The hypothesis on which this paper is built is that the subconscious ‘othering’ of immigrants in the EU and its Member States is so strong that policy makers and legislators cannot escape its influence. This resilient way of thinking of immigrants as the ‘other’ is flavoring legislation and is liable for rules that do not foster inclusion even though inclusion of immigrants is often mentioned as main objective of legislation.