Prof Asha Hans
Shanta Memorial Rehabilitation Centre
India

The latest report by the World Bank estimates that persons with disabilities account for 15% of the global population. A majority are them are poor and live in the developing world. This is important as migration has pull factors and the poor get drawn due to necessity. The issues in the context of disability in migration can be understood from two angles: i. refusal of entry due to disability and ii. their invisibility and marginalization from migration policies and legal frameworks.

Immigration restrictions
The UN Convention on the Rights of Persons with Disabilities saw a shift from medical to a social model but many visa restrictions are based on ground of the former (UK, Australia)i. The UNCRPD under Article 4 and Article 18.1 provides for liberty of movement, right to choose and right to residence to persons with disabilitiesii. However some countries even parties to the Convention restrict entry if a person has health problems (UK, Australia) especially a psychiatric disorder (psycho-social disability- Bahrain),Downs syndrome and intellectual disability.iii

Persons with disabilities may have health issues and are therefore restricted from entering as they would be a burden on the health system. This notion however overlooks the contributions they could make. By refusing entry to people on the basis of disability the principles of equality, justice and democratic processes are undermined.

Though with the introduction of the UNCRPD there is an increasing attempt for inclusion, however efforts need to be augmented. Migration laws such as the International Convention on the Protection of the Rights of all Migrant Workers and Members of their families (ICRMW) addresses disability as “other status”. A new synergy is required to bring CRPD into migration policies.

Labour Migration

There is no data available on movement of persons with disabilities as migrants outside the countries. However research has shown that migration brings in various hazards of lack of schooling, health and rehabilitation facilities. The biggest vulnerability is in their inability to get a visa due to legal framework in place which prohibits people with various disabilities. Host countries may not have implementable disability policies and so exclusion takes palce. To overcome these problems many migrant parents

1. Who have a disability person in the family leave them behind with extended families or self appointed guardians.
2. The stigma attached to disability might result in hiding it from visa officials and therefore on reaching an immigrant country the persons do not get the services required, or forced to return home.

Safe and Accessible workplace

Accessibility to workplace, including communication systems is important and States have agreed to it as per CRPD Article. Irregular migrants due to hazardous occupations face risks of disability and it is therefore important that safety work place is maintained and awareness on prevention be part of the workplace.

Residency and Access to services

Persons with disabilities require immediate access to services such as rehabilitation, health and disability related provisions provided to citizens but countries take years to provide these. This violates the provision of CRPD Article 25 on right to health including rehabilitation and habilitaion .

Forced migration, conflict and post conflict situations

Conflict situations across the globe produce IDPs and Refugees. In any conflict situation disability is high especially due to land mines or a resultant Post Traumatic Stress Disorder. These situations pose risk to persons with disabilities as there is a breakdown of services and people move elsewhere. Mobility may not be easy for those with disabilities, so many are left behind in situations with little access to health care or rehabilitation or support services, lack of carers and subject to high violence. If forced to move they might be in IDP camps or if go to other countries where they may be declared illegal/ kept in detention centres without access to their specific needs. Those who move may lose behind papers essential to their survival.

Violence against persons with disabilities is common even during normal times, and especially women with disabilities are prone to sexual abuse. Protection system if lacking in host countries would result in exploitation of the women. Camps for IDPs or refugees can be places of violence or change. Cases of trafficking of women with hearing impairment in South East Asian camps have been documented and action taken to stop it. Violence against women may take place if there are no accessible toilets for them, as spaces outside camps results in rape.
Provision of specific support services has to ensure inclusion. This may include accessible communication services, assistive devices, mobility aids and carer support where required. Children may suffer by not receiving education if in camps or schools many not be accessible. This contravenes the CRPD which as per Aricle 24 stipulates that States must provide the Right to education.

Art 11 of CRPD alos calls for States Parties to take all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters. By enforcing this article it can be ensured that camps create change through inclusion and social protection.

Issues of Women and girls with disabilities in migration

CRPD as per Article 6 provides specific protection for women . Violence against women and girls with disabilities has been documented globally. They are the receiving end of violence by varied perpetuators such as parents, school teachers, bus drivers, family members. This violence is within homes and in institutions they arise. Sexual abuse increases in conflict and disaster situations and women seeking refuge may require support services.
If family migration takes place women with disabilities may be hidden by families or the State may not include them in provision of work. There may be specific violence such as Female Genital Mutilation which may contribute to women’s invisibility and it may also continue in migration and result in physical harm and psycho-social disability.

CRPD Article 15, 16, 17 – freedom from torture and ill-treatment, protection from violence, exploitation and abuse, protection of personal integrity which should be followed by State Parties

Recommendations:

Make national migration laws inclusive
As per Art 4.b of the CRPD State Parties are obliged to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;

States must ensure that the rights of migrant women and children are not overlooked in migration related international laws/Conventions, national laws and policies . To ensure this it must be ensured that all provisions of CRPD are introduced into the international migration framework. Specifically Article 5 of the CRPD which states that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. States Parties need to prohibit all discrimination on the basis of disability (in this specific case on migration) and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

Remove discriminatory provisions in laws

Disability must not be a reason for denial of an immigration application or residency . States must ensure that Article 18 of the CRPD which states that states that persons with disabilities have the right to acquire and change nationality and are not to be deprived of their nationality arbitrarily or on the basis of disability must be implemented. Countries who have not agreed to this article in their migration policy must withdraw any articles in their laws which are in variance with it. And remove any issues conflicting with CRPD

Recommendations

Call on States to ensure that persons with disabilities enjoy liberty of movement within and across borders and choose their own nationality and residence on an equal basis with others
Call on States to make their migration legal framework non discriminatory and change as per the provisions of UNCRPD.

Call on States to ensure that migration laws and practices are inclusive and uphold rights of persons with disabilities by removing existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities .

Call on States to involve persons with disabilities in decision making and monitoring whether they are men, women, children or seniors.

Call on States to ensure that persons with disabilities enjoy equal access to health, education and social protection policies.

Call on States to put in place protection strategies for all persons with disabilities and specifically women, children and aged.

Call on States to ensure that women victims of sexual abuse and harmful practices are provided required services without delay

Call on States to ensure that children with disabilities are not refused entry, allowed cared by their parents and registered immediately after birth

Call on States to include in their disaster management policies persons with disabilities as advisers and in the monitoring process.

Call on States to develop awareness strategies especially for migration personnel

Call to States to collect disaggregated data and sponsor research on migration and disability

Call on States and Humanitarian agencies to ensure that camps and transit homes are accessible to persons with disabilities

Many countries such as Germany have removed discriminatory health laws, while the EU has brought its immigration laws within its Fundamental Rights. India’s site by the Bureau of Immigration is accessible to persons with disabilities. So the way forward is possible.

It took Simran Kaur, a legally blind social worker from to be granted permanent residency following an intervention by the Minister for Immigration and Citizenship. Ms Kaur’s original application in 2009 under the General Skilled Migration Scheme (GSM) was rejected on the basis that she did not meet the health criteria solely due to her legal blindness. Under the hypothetical person test of the Migration Regulations 1994 (the Regulations), a legally blind person would in time be eligible to receive a Disability Support Pension, and therefore pose an undue burden on public expenditure (
Art 18 Liberty of movement and nationality
1. States Parties shall recognize the rights of persons with disabilities to
liberty of movement, to freedom to choose their residence and to a nationality,
on an equal basis with others, including by ensuring that persons with
disabilities:
(b) Are not deprived, on the basis of disability, —-to utilize relevant processes such as
immigration proceedings, that may be needed to facilitate exercise of the right
to liberty of movement;
2. Children with disabilities shall be registered immediately after birth and
shall have the right from birth to a name, the right to acquire a nationality and,
as far as possible, the right to know and be cared for by their parents.

For Australian Act see Migration Act 1958 (Sec. 5(1), UK Immigration Rules 36-37; http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/

Article 6: Women with disabilities
1. States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and
fundamental freedoms.

For children see IDA submission for the Day of General Discussion on
the rights of all children in the context of international migration:
“The rights of children with disabilities in the context of international migration”
28 September 2012, Committee on the Rights of the Child, 61st session. For women see “ Thematic analytical violence against women and girls with disability. Contribution from
International Organization for Migration.