On the 7th March 2018, the Dail has commenced the process of ratification of the UN Convention of the Rights of Persons with Disabilities 2006, following the enactment of the Disability (Miscellaneous Provisions) Bill 2016.
The Tánaiste and Minister for Foreign Affairs Simon Coveney will be signing the Instrument of Ratification, which will come into force 30 days after it is received by the UN.
Ireland will be the last member of the EU to ratify the 2006 Convention, despite having signed the framework in 2007.
Once ratification has been completed, the Convention of the Rights of Persons with Disabilities will then have legal effect in the State and give specific legal rights to individuals with disabilities.
The Convention protects equal treatment for all people with disabilities with respect to human rights and fundamental freedoms. It has eight guiding principles: respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women, and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
In respect of immigration cases, this is a very relevant development. It is common that visas, residence permissions or family reunification applications are granted or refused on the basis of a person’s financial and employment circumstances. This has put some persons with disabilities at a specific disadvantage when they do not have the capacity to earn a living, and therefore would potentially be excluded from a particular visa or residence permission, or perhaps never benefit from the option of family reunification
This affects non EEA nationals in terms of applications for visas and residence permissions, and also Irish citizens and EEA citizens who are applying for family reunification where the applications have specific financial thresholds.
In the case of Directive 2004/38/EC and the European Communities (Free Movement of Persons) Regulations 2015, persons with disabilities are not included as a category of persons who are deemed to be exercising EU Treaty Rights. Both the Directive and Regulations are silent on the matter, and individual cases fall to be determined at the discretion of the Minister on a case by case basis.
We have made representations to the Minister on behalf of some clients with disabilities arguing that their disability cannot lawfully be relied on as a ground to deny them a visa, residence permission or family reunification permission when this would discriminate them against a person without such a disability.
The ratification of the Convention of the Rights of Persons with Disabilities is hugely significant as the Minster for Justice and Equality is now obliged to implement and protect the rights of persons with disabilities in all immigration cases, and such persons can rely on the Convention to enforce their rights in the determination of their immigration cases, and before the courts if necessary.