Rethinking discrimination and migration in the era of AI

In recent years, interest in Artificial Intelligence (AI), understood as a set of techniques used to train machines to approximate some aspects of human or animal cognition, has heightened. In the field of migration, AI has the potential to revolutionise the way states manage mobility, decision- making and community integration. AI systems, such as facial, dialect or emotion recognition, risk assessment tools or predictive analytics, promise modernised identity checks and border controls, as well as expedited, consistent and more efficient decision making, for example in relation to visa, residence permits or asylum applications. At EU level, the experimentation with AI-reliant tools has been in the making since the past few years, but information on where exactly AI will be used remains fragmentary, creating opacity and raising an eyebrow as to the potential fundamental rights challenges for third-country nationals, particularly in relation to non-discrimination. Indeed, AI-based tools may raise significant concerns when the algorithms are by design biased, (racially) discriminating against specific groups of individuals originating from certain regions or countries. (Cognitive) bias may also be present when human officers review the results or suggestions by AI systems. Against this backdrop, this paper will first provide a typology of the different ΑΙ systems envisaged in EU legal instruments to identify where AI could be used. Then, the contribution will examine the discrimination concerns in light of the jurisprudence of the European Courts to highlight two main issues: that the existing standards for protection against non-discrimination in the field of migration are not catered to accommodate modern technologies and that the existing case law on the use of AI tools is not suitable either as it does not take into account the inherently discriminatory nature of the field of migration law. The contribution will offer insights into a new conceptualisation of non-discrimination based on the principles of fairness and accountability and in accordance with other fundamental rights.