Abstract
The immigration policies of countries point to a view of disabled people as being incapable of contributing to a host country, in either a restrictive economic sense or socially and culturally. This results in the adoption of stringent laws and policies in the context of migration that are unaccommodating and discriminatory toward peoples with disabilities. Article 18 of the CRPD guarantees the equality of persons with disabilities in the enjoyment of the freedom of movement and nationality by identifying the circumstances in which persons with disabilities, including children, are more discriminated.
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Notes
- 1.
CCPR, General Comment No. 27: Article 12 (Freedom of Movement), CCPR/C/21/Rev.1/Add.9, 2 Nov 1999.
- 2.
Burns (2013).
- 3.
Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/63/175, 28 Jul 2008.
- 4.
Bourke and Gerard (2002), p. 150.
- 5.
Bhabha and Crock (2007), p. 166.
- 6.
Several elements of the definition under the Refugee Convention can prove particularly challenging for a person with a disability who is seeking asylum. For a further analysis on the intersection between asylum seekers and disabilities, Crock et al. (2011).
- 7.
See para. 4.
- 8.
In its Concluding Observations on the report of Mexico, the CRPD Committee was concerned that migrants with intellectual or psychosocial disabilities are detained in migrant holding centers and that the authorities set stricter requirements for entry into the country for persons with disabilities. See CRPD Committee, Concluding Observations on the initial report of Mexico, CRPD/C/MEX/CO/1, 27 Oct 2014, para. 39.
- 9.
Against the denial of entry into the Cook Islands on the basis of disability, the CRPD Committee recommended that the State Party amend the law so as to allow all persons with disabilities entry to the State Party on an equal basis with others. CRPD Committee, Concluding Observations on the initial report of the Cook Islands, CRPD/C/COK/CO/1, 15 May 2015, para. 38.
- 10.
Consider, for instance, Article 24 of the ICCPR; Article 7 of the CRC; Article 29 of the ICMW; Article 9 of the CEDAW; Article 5 of the CERD; Article 6 of the African Charter on the Rights and Welfare of the Child; Article 20 of the American Convention on Human Rights; Article 6 of the UN Declaration on the Rights of Indigenous Peoples.
- 11.
van Waas (2012), p. 244.
- 12.
ECtHR (Grand Chamber), Kuric and others v. Slovenia, para. 36.
- 13.
ECtHR, Kiss v. Hungary, para. 42; Z. H. v. Hungary, para. 29.
- 14.
CRPD Committee, Concluding Observations on the initial report of Peru, CRPD/C/PER/CO/1, 16 May 2012, para. 6 (c).
- 15.
CRPD Committee, Concluding Observations on the initial report of Ecuador, CRPD/C/ECU/CO/1, 27 Oct 2014, para. 32.
- 16.
In its Concluding Observations on the report of Peru, the CRPD Committee expressed its concerns about the number of persons with disabilities, especially those living in rural areas and in long-term institutional settings, without identity cards and, sometimes, without a name. See CRPD/C/PER/CO/1, para. 22.
- 17.
For further information, see Waddington (2013).
- 18.
Act No. 40/1993 Coll. on the Acquisition and Loss of Citizenship of the Czech Republic.
- 19.
Nationality Act 359/2003, Section 13, 1 (6).
- 20.
Government Regulation No. 522 from 2011, available at http://likumi.lv/doc.php?id=232794.
- 21.
Loi du 28 novembre 2006 sur l’égalité de traitement, available at: www.legilux.public.lu/leg/a/archives/2006/0207/2006A3584A.html and du Loi du 15 juillet 2011 visant l’accès aux qualifications scolaires et professionnelles des élèves à besoins éducatifs particuliers, available at www.legilux.public.lu/leg/a/archives/2011/0150/a150.pdf.
- 22.
ECtHR, H. P. v. Denmark.
- 23.
Under section 23 of the Danish Circular no 90 of 1999 (in force at the relevant time), the language exemption is granted ‘where the person in question […] proved unable to learn Danish to a sufficient degree due to mental disorder, for example as a result of torture.’
- 24.
See CoE—Commissioner for Human Rights (2013), p. 15.
- 25.
This provision authorizes the State to restrict these rights only to protect national security, public order (ordre public), public health or morals, and the rights and freedoms of others.
- 26.
CCPR, General Comment No. 27: Article 12 (Freedom of Movement), CCPR/C/21/Rev.1/Add.9, 2 Nov 1999, para. 18.
- 27.
CCPR, General Comment No. 27, para. 20.
- 28.
Bhabha and Matache (2015), pp. 130–144.
- 29.
For instance, in its Concluding Observations on the initial report of Paraguay, the CRPD Committee expressed its concerns about the fact that children with disabilities are not registered in the State Party and that there are as yet no concrete measures to encourage the registration of children with disabilities, particularly in rural areas. CRPD Committee, Concluding Observations on the initial report of Paraguay, CRPD/C/PRY/CO/1, 15 May 2013, para. 46.
- 30.
CRPD Committee, General comment No. 1, Equal recognition before the law, CRPD/C/GC/1, 11 Apr 2014.
- 31.
CRPD/C/PRY/CO/1, para. 45.
- 32.
CCPR, General Comment No. 17: Article 24 (Rights of the child), para. 8.
- 33.
United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en. Accessed 7 May 2015.
- 34.
The declaration states that ‘Australia recognizes the rights of persons with disability to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others. Australia further declares its understanding that the Convention does not create a right for a person to enter or remain in a country of which he or she is not a national, nor impact on Australia’s health requirements for non-nationals seeking to enter or remain in Australia, where these requirements are based on legitimate, objective and reasonable criteria.’
- 35.
Waldeck and Guthrie (2007).
- 36.
The reservation reads as follows: ‘The United Kingdom reserves the right to apply such legislation, insofar as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, as it may deem necessary from time to time.’
- 37.
Issued by Government to begin the parliamentary process for ratification of the CRPD, the Explanatory Memorandum of 3 March 2009, and associated documents, are available at http://www.equalityhumanrights.com/sites/default/files/uploads/documents/UNCRDP/gov_explanatorymemorandum23feb09.doc.
- 38.
It has been noticed that such rationale ‘appears to confuse issues relating to health and those pertaining to disability, whereas it is obvious that global health emergencies affect people with and people without disabilities’ and that ‘this will serve only to perpetuate the misconception that Government can ‘pick and choose’ who should be allowed to enter and remain in the UK based on the perceived severity of a person’s disability.’ See http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/70/7010.htm. Accessed 7 May 2015.
- 39.
The Commission observed that the reservation to CRPD is nearly identical to reservations entered by the United Kingdom to Article 22 of the CRC, which has been removed in 2008, and Article 14, para. 4, of the CEDAW, which has been withdrawn in 2007. The Commission outlined that ‘the available evidence does not indicate the withdrawal of such immigration reservations has had any adverse impact on the Government’s ability to apply immigration rules in a fair, proportionate and legally justified manner either.’ Equality and Human Rights Commission (2011) UN Convention on the Rights of Persons with Disabilities: Review of Immigration Reservation.
- 40.
See the objections of Austria, Belgium, Germany, Hungary, Portugal, Slovakia, Sweden. United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en. Accessed 7 May 2015.
- 41.
CRPD Committee, Concluding Observations on the initial report of Australia, CRPD/C/AUS/CO/1, 21 Oct 2013, paras. 8–9.
The removal would be in line with Article 19 of the Vienna Convention on the Law of Treaties, by which States are not permitted to make reservations where the reservation is incompatible with the object and purpose of the treaty in question. https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf. Accessed 7 May 2015.
The Kingdom of Thailand has removed its interpretative declaration by which the application of Article 18 of the Convention was subject to conformity with the national laws, regulations, and practices. Thailand’s declaration to Article 18 was so unclear and vague in its content to appear in contrast with the object and the purpose of the CRPD. In fact, it was argued that if such declaration was an effort to thwart previously institutionalized persons from relocating them in community residences, one of the major raisons d’être of the Convention was vitiated. See Perlin (2012), p. 152. On 5 February 2015, the Government of the Kingdom of Thailand informed the Secretary-General that it had decided to withdraw such interpretative declaration.
Table of Cases
ECtHR (lodged on 01.10.2009), Application No. 55607/09, HP v Denmark
ECtHR 20.05.2010, Application No. 38832/06, Alajos Kiss v Hungary, IHRL 3619 (ECHR 2010)
ECtHR (Grand Chamber) 26.06.2012, Application No. 26828/06, Kurić and others v Slovenia, ECHR 070 (2014)
ECtHR 08.11.2012, Application No. 28973/11, ZH v Hungary, HEJUD [2012] ECHR 1891
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Cera, R. (2017). Article 18 [Liberty of Movement and Nationality]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_22
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