Immigrants with Disabilities

Humans are increasingly on the move, be they spurred by “push” factors, such as armed conflict, persecution, unrest, and increasingly, climate change, or “pull” factors, including educational or economic opportunity. Globally, more people live outside their birth countries than ever before, and an expanding share of migrants have left low- and middle-incomes countries in favor of richer ones. As a result, persons with disabilities are increasingly affected by national immigration laws, many of which are steeped in enduring legacies of ableism and eugenics.^1,2 For example, the United States’ “public charge rule” allows immigration authorities to deny entry to immigrants with disabilities based on the likelihood that they will receive social assistance.^3,4 Similar rules around the world also can deny long-time immigrant residents renewals of their status, such as when Australia denied visa renewals to two parents of a two-year-old with cystic fibrosis earlier this year.

The increase in human migration necessitates national immigration law and policy reforms to reflect evolving international disability rights legal standards. One of the many ways that international disability rights law intersects with national immigration regimes regards the right to family reunification. Under international law, refugees and asylees are entitled to be joined by their close family members, also known as “family reunification.” Many countries’ laws recognize this right but place certain conditions on how refugees and asylees may access it. For example, applicants for family reunification are frequently required to prove that they have, or are likely to obtain in the near future, sufficient financial resources to support their family members. For family reunification applicants with disabilities who receive various forms of social assistance related to their disabilities, such resource requirements can pose an insurmountable barrier.

In Domina & Bendtsen v. Denmark, the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) concluded that that resource requirements barring family reunification applicants with disabilities who receive forms of social assistance due to their disabilities violate their right to non-discrimination under CRPD Article 5, read together with their right to family under Article 23. There, a Danish man with traumatic brain injury sought a residence permit for his Ukrainian national spouse but was denied by Danish immigration authorities due to a rule barring family reunification for applicants who receive social benefits within the three years prior to the date of reunification eligibility. Because the man had been receiving social benefits following the car accident that caused his disability, under Danish law he would only be eligible to apply for a permit for his spouse three years after he stopped receiving benefits. Although the applicants’ challenge of this rule in the Danish courts was unsuccessful, the CRPD Committee rejected Denmark’s argument that their expectation that the man enroll in a wage subsidy program and wait three years before reapplying and found the resources requirement discriminatory.

HPOD and the University of Galway’s Centre for Disability Law and Policy (CDLP) had urged the European Court of Human Rights to consider the CRPD Committee’s jurisprudence in the recently decided D.H. & Others v. Sweden. This case centered on a refugee with disability's request for reunification with her two children and her mother, all of whom had fled Eritrea and resettled in Sudan. Swedish authorities, however, denied her request, in part due to the refugee's receipt of social welfare benefits caused her failure to satisfy a "maintenance requirement." Under Swedish law, refugees seeking family reunification must show sufficient income to maintain both themselves and any person they wish to sponsor. Such requirements are common throughout Europe; indeed, Council of Europe Directive 2003/86/EC expressly allows European Union Member States to apply similar resource requirements in family reunification applications. In a positive sign for harmonizing the CRPD Committee's and the European Court's precedents, the Court discussed Domina & Bendtsen at length. However, the Court distinguished the applicant's factual circumstances those in Domina & Bendtsen, finding that the applicant's benefits were not strictly tied to her disability. Thus, the Court held that Sweden's denial of reunification was non-discriminatory.

In multiple fora, through both scholarship and advocacy, HPOD has worked to ensure that immigration decision-makers incorporate international disability rights legal developments in their work. For example, last year HPOD Executive Director, Professor Michael Ashley Stein and HPOD Senior Associate Janet E. Lord, along with colleague Elizabeth Heideman, outlined numerous ways that the CRPD should affect adjudications of asylum claims by immigrants who fear disability-related persecution in their countries of origin. Even though the UN Convention on the Rights of Persons with Disabilities (CRPD) does not expressly refer to asylum-seekers or refugees, the Article 18 right to freedom of movement and the Article 11 right to protection and safety in situation of risks, among many other provisions have wide-ranging implications for laws regulating immigrants’ entry into, conditions of remaining in, and removal from countries other than those of their birth.

Options for the progressive interpretation of immigration laws, however, are more limited in countries that have not ratified the CRPD. Still, other sources of international human rights law confer vital protections on immigrants with disabilities. Under the Convention Against Torture (CAT), ratified by the United States in 1994, unauthorized immigrants cannot be returned to a country where they face a likelihood of torture, defined as severe pain and suffering intentionally inflicted for a proscribed purpose either by public actors or by private actors with the government’s acquiescence. However, as HPOD Director of Advocacy Initiatives Hezzy Smith and Professor Stein found in a review of unpublished immigration decisions denying CAT relief to immigrants with psychosocial disabilities, many immigration adjudicators appear to construe the United States’ CAT obligations too narrowly. Some have found that evidence of widespread abuses in mental health facilities abroad, inlcuding the indiscriminate use of prolonged physical or chemical restraints, do not qualify as torture. Such findings risk undermining a global reframing of coercive care catalyzed by the CRPD. To challenge narrow constructions of CAT, HPOD has intervened alongside other organizations in several cases before U.S. Circuit Courts of Appeals to urge courts to interpret the United States’ treaty obligations consistently with evolving international disability rights legal standards, although much work remains to close the gaps between U.S. immigration laws and international standards.

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