ho crpd consultation response by qr2b0B18

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									Response of the Equality and Human Rights
Commission to the Consultation:
Consultation details
Title:                    UN Convention on the Rights of Persons with
                          Disabilities: Review of Immigration
                          Reservation
Source of consultation:   Home Office / UK Border Agency
Date:                     21 March 2011


For more information please contact
Name of EHRC contact providing response and their office address:
Sara Brunet , Senior Lawyer, Legal Policy Team,
Arndale House, Arndale Centre, Manchester, M4 3AQ.

Telephone number:         0161 829 8409
Email address:            sara.brunet@equalityhumanrights.com




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    1. Background: The Equality and Human Rights Commission


    1.1       The Commission is a statutory body established under the
    Equality Act 2006, which took over the responsibilities of the
    Commission for Racial Equality, Disability Rights Commission and
    Equal Opportunities Commission. It is the independent advocate for
    equality and human rights in Britain. It aims to reduce inequality,
    eliminate discrimination, strengthen good relations between people,
    and promote and protect human rights. The Commission enforces
    equality legislation on age, disability, gender reassignment, marriage
    and civil partnership, pregnancy and maternity, race, religion or belief,
    sex, sexual orientation, and encourages compliance with the Human
    Rights Act. It also gives advice and guidance to businesses, the
    voluntary and public sectors, and to individuals.



    2. Why this review is an issue for the Commission

    2.1     The Commission welcomes the opportunity to submit a
    response to this review of the immigration reservation to the UN
    Convention on the Rights of People with Disabilities (UNCRPD). The
    Commission is responding in its role as part of the UK independent
    mechanism with duties under article 33(2) of the UN disability
    convention to 'promote, protect and monitor' its implementation1.

    2.2      In March 2009, the Commission set out its view that the
    current immigration reservation to the UNCRPD is unnecessary and
    disproportionate based on the rationale given in the UK Government's
    explanatory memorandum concerning ratification of the UNCRPD,
    which was laid before Parliament on 3 March 20092. Subsequently,
1
  The UNCRPD is unique in requiring governments to designate one or more 'independent
mechanisms' to 'promote, protect and monitor implementation of the Convention'. The Equality and
Human Rights Commission has been designated alongside the Scottish Human Rights Commission,
the Northern Ireland Human Rights Commission and the Northern Ireland Equality Commission to
fulfill this role.
2
  Equality and Human Rights Commission statement re: the government's explanatory memorandum
available at: http://www.equalityhumanrights.com/human-rights/international-framework/human-rights-
submissions/rights-of-disabled-people/governments-explanatory-memorandum-and-commission-
response/commission-statement-re-the-governments-explanatory-memorandum/
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we have been in correspondence with relevant ministers to further
explain our position, to discuss government concerns and to pursue
the promised review of the reservation. We warmly welcome that the
review is now underway.

2.3      In considering our response to this review, we have also had
regard to our duties under s9 of the Equality Act 2006 which require
us to promote the protection of human rights. We have also taken
into account our powers under s11 of the Act to recommend to
government changes in equality and human rights law.

2.4       The Commission has considered a range of evidence and
data in the course of producing this response including, relevant UK,
European and international law; guidance published by expert
organisations and interested stakeholders, such as House of
Commons Joint Committee on Human Rights (JCHR); the views and
representations of disabled people and disabled people's
organisations via UNCRPD consultation events and expert advisory
group; Counsel's opinion on Equality Act provisions on immigration
and disability discrimination and on the disability Convention; general
comments and other guidance issued by the UN treaty monitoring
bodies. We have also re-considered the previous guidance we have
issued in relation to the UNCRPD immigration reservation.


3. Executive summary

   In responding to this review, the Commission has taken account
    of its duties under the Equality Act 2006 as well as its role as a
    designated UK Independent Mechanism under article 33(2) of
    the Convention.

   The Commission believes that the UK's current reservation is
    unnecessary and invalid and should be withdrawn:

        o The Commission does not believe that article 18 of the
          UNCRPD affects the right of state parties to regulate
          immigration provided any discrimination involved is a
          proportionate means of achieving a legitimate aim. The

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                     Commission considers that such a balance has been
                     established under schedule 3, paragraph 16 of the
                     Equality Act 2010. This provision exempts certain
                     immigration decisions from the duty not to discriminate in
                     the provision of services and public functions where to do
                     so 'is necessary for the public good'. The Commission's
                     view is that the Equality Act provides a proportionate and
                     practicable mechanism for the exercise of immigration
                     functions and there is no need in law, therefore, to retain
                     the reservation.

                 o The Commission considers that the current reservation is
                   in any event invalid. The reservation as currently drafted
                   is so broad and general as to be incompatible with the
                   object and purpose of the Convention and as such is
                   breach in breach of article 46 of the UNCRPD and article
                   19 of the UN Vienna Convention on the Law of Treaties
                   concerning the permissibility of reservations.

                 o We are concerned in particular that the current
                   reservation is not compliant with the principle of non-
                   discrimination set out in article 5 of the UNCRPD3, which
                   is fundamental to the UK Government's obligations under
                   the Convention.

         The Commission welcomes government's commitment to the
          UNCRPD as 'a recognised international standard for securing
          the human rights of disabled people' 4. It sends an unfortunate
          message therefore that the UK continues to maintain four
          reservations and an interpretative declaration to the CRPD.
          This review presents an opportunity for government to positively
          re-affirm its commitment to implementing the full realisation of


3
  Article 5 UNCRPD states:
          1. State parties recognise 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.
          2. State parties shall prohibit all discrimination on the basis of disability and guarantee to
          persons with disabilities equal and effective legal protection against discrimination on all
          grounds
4
  para 1, page 2 Home Office, UKBA UNCRPD: Review of Immigration Reservation
                                                                                                           4
         and enjoyment by disabled people of the rights set out in the
         Convention by withdrawing the immigration reservation.

       The Commission welcomes the Home Office's commitment to
        undertake an Equality Impact Assessment (EIA) as part of this
        review process and we look forward to receiving a copy of the
        completed EIA before a final decision is made whether to
        withdraw or retain the reservation.


  4. Responses to specific questions in the consultation

4.1 The Commission's detailed responses to the specific questions
and particular considerations which the Government states that it has 'in
mind' in undertaking this review are set out below.

(i) There are arguments for and against the continued need in law
for the reservation, following the implementation of the Equality Act
2010 (including the disability exception for immigration purposes at
paragraph 16 of Schedule 3).

(ii) The Convention should not affect the Government’s ability to
apply immigration rules controlling entry to the UK.

4.2 The Commission accepts government's legitimate need to apply
immigration rules controlling entry to and the right to remain in the UK in
accordance with equality and human rights legislation. However, we do
not believe that there is any reason in law to retain the reservation or
that its withdrawal would impede UKBA's ability to apply immigration
rules in a reasonable, proportionate and objectively justified manner.
The Commission does not consider that article 18 of the UNCRPD
affects the government's ability to apply immigration rules controlling
entry to and the right to remain in the UK, provided any discrimination
involved is a proportionate means of achieving a legitimate aim. The
Commission considers such a balance has been established in the
exception in schedule 3, paragraph 16 of the Equality Act 2010. The Act
includes specific provisions exempting certain immigration decisions
from the duty not to discriminate on grounds of disability in the provision
of services and discharge of public functions where to do so is

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'necessary for the public good.' This approach is consistent with existing
discrimination principles domestically and at EU level in the Equality
Directives and human rights principles.

4.3 The Commission further considers that the reservation is
incompatible with the object and purpose of the Convention, in particular
the principle of non-discrimination under article 5 of the UNCRPD , and
is therefore invalid. The reservation is very broad and general in its
application to immigration control. Its likely effect is to disapply all of the
protection the UNCRPD might otherwise afford disabled people who are
subject to immigration control. This formulation is far too broad and is
likely to be in breach of article 46 of the UNCRPD which provides that
reservations incompatible with the object and purpose of the Convention
are not permitted5. Article 46 of the UNCRPD re-enforces the provisions
set out in article 19 of the Vienna Convention concerning the
permissibility of reservations. The Vienna Convention provides that:

          Article 19 Formulation of reservations
          A State may, when signing, ratifying, accepting, approving or
          acceding to a treaty, formulate a reservation unless:
          (a) the reservation is prohibited by the treaty;
          (b) the treaty provides that only specified reservations, which do
          not include the reservation in question, may be made; or
          (c) in cases not falling under sub-paragraphs (a) and (b), the
          reservation is incompatible with the object
          and purpose of the treaty.
          (Vienna Convention on the Law of International Treaties)

4.4 The Commission's view is that the reservation is too broad and
that it is likely to be contrary to the principles of the UNCRPD and
therefore impermissible. This view is re-enforced by and has been given
effect in the jurisprudence of the Office of the High Commissioner for
Human Rights (OHCHR) and the UN treaty monitoring bodies. For
example, in guidance on reservations compatible with the object and

5
    Article 46 (UNCRPD) Reservations
            1. Reservations incompatible with the object and purpose of the present Convention shall not
            be permitted.
            2. Reservations may be withdrawn at any time.


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purpose of the International Covenant on Civil and Political Rights
(ICCPR), the UN Commissioner for Human Rights has stated that:

       19. Reservations must be specific and transparent so that the
       Committee, those under the jurisdiction of the reserving State and
       other State parties may be clear as to what obligations of human
       rights compliance have or have not been undertaken.
       Reservations may thus not be general but must refer to a particular
       provision of the Covenant and indicate in precise terms its scope in
       relation thereto6.

4.5 Other expert organisations have expressed a critical view of the
current reservation and have also questioned its validity. The UNCRPD
reservation is almost identical to a reservation to article 22 of the UN
Convention of the Rights of the Child (CRC). It was argued by a number
of bodies including the parliamentary Joint Committee on Human Rights
(JCHR) that the reservation to CRC was invalid as it was not compatible
with the object and purpose of the Convention. The JCHR subsequently
observed in relation to the CRPD reservation that:

       63. The Government's proposal is nearly identical to a similar
       reservation to Article 22 of the UNCRC which has been recently
       removed. The justification proposed by the Government in respect
       of that reservation was similarly vague and accompanied by the
       explanation that nothing in CRC was intended to create any
       further legal obligations in respect of those subject to immigration
       control. We consider that our predecessor Committee's
       conclusions in respect of the CRC apply with equal force in
       respect of this proposed reservation. It is neither necessary nor
       compatible with the object and purposes of the reservation.

       70. We recommend that the Government abandon this (ie. the
       UNCRPD) reservation. We consider that it is both unnecessary
       and inconsistent with the object and purpose of the Convention7.


6
  Office of the High Commissioner, General Comment No 24, Issues relating to reservations made
upon ratification or accession, 4 November 1994, CCPR/C/21/Rev.1/Add.6
7
  House of Commons Joint Committee on Human Rights UNCRPD: Reservations and Interpretive
Declarations 12th report of session 2008-2009 available at:
http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/70/70.pdf
                                                                                                 7
4.6 The UK withdrew its reservation to the CRC in November 2008.
The Commission is not aware of any evidence that the withdrawal of the
reservation to the CRC has resulted in a significant increase in the
overall number of appeals.

4.7 The UK had previously withdrawn a similar reservation in relation
to immigration matters which it had entered in respect of the Convention
on the Elimination of all forms of Discrimination against Women
(CEDAW)8. Correspondingly, the available evidence does not indicate
the withdrawal of the CEDAW immigration reservation has had any
adverse impact on the Government's ability to apply immigration rules in
a fair, proportionate and legally justified manner either.

4.8 The Commission is further concerned that a decision to retain a
reservation of dubious legality in respect of the disability Convention
when almost identical reservations to CRC and CEDAW have been
withdrawn would send a negative message about the UK's commitment
to disabled people's human rights. We do not believe there is any
justification for a different approach in respect of disability to that which
has been adopted in relation to other groups.

4.9 Having considered the available evidence, the Commission's
position remains that the current immigration reservation to UNCRPD is
both unnecessary and invalid and should be withdrawn. The
Commission had previously advocated replacing the reservation with an
interpretive declaration, emulating the approach of the Australian
government, if the UK government continued to believe such clarification
was necessary. Further to informal discussion with the Foreign and
Commonwealth Office regarding the processes involved we do not
believe modification of the reservation to replace it with a declaration
would be practical. Given the Commission's position as outlined above,
we believe the most expedient approach would therefore be to remove
the reservation altogether.




8
    July 2007
                                                                                8
(iii) The Convention should not remove the scope for the
introduction of a wider policy of health screening for those seeking
leave to enter or remain in the UK, if the Government were to
decide that should be necessary at some future point, including for
the protection of public health.

4.10 As discussed above, the provisions of the Equality Act permits
discrimination in relation to certain immigration decisions where this is
legally justified. If there are objectively justified and proportionate
measures which are necessary to and genuinely aimed at protecting
public health these are unlikely to be precluded by the UNCRPD. It is
important, however, to distinguish the principle that health screening
should be carried out on a non-discriminatory basis albeit that
immigration decisions arising from the outcome of such screening might
be objectively justified.

4.11 The Commission shares the concern expressed by the JCHR, and
others, that this particular rationale appears to conflate disability with
perceived risks to public health:


          65. We are particularly concerned about the Government's
          proposal that this reservation may be necessary in order to deal
          effectively with public health emergencies. We agree with a
          number of our witnesses that the Government already has broad
          powers to deal with public health emergencies and to control entry
          into the United Kingdom for the purposes of protecting public
          health. We considered these powers most recently in our scrutiny
          of the Health and Social Care Act 2008, which provided for the
          wide-spread reform of the Government's powers to deal with risks
          to public health. These powers apply to all people, regardless of
          whether they have disabilities or not. In our view, there is nothing
          in the Convention which would require an amendment to the
          existing law or which could limit its effectiveness. We agree with a
          number of witnesses who wrote to tell us that this amendment
          appeared to conflate disability with the risks posed9.


9
    JCHR, UNCRPD: Reservations and Interpretive Declarations 12th report of session 2008-2009
                                                                                                9
4.12 The Commission would be interested to see details of what
objective evidence the Government has to suggest it requires additional
powers in order to manage genuine situations of public health risks and
what analysis it has carried out to identify a more effective and less
discriminatory option to address such risks than the retention of such a
broad reservation.

(iv) The Optional Protocol to the Convention, which creates a right
of individual petition to the UN Committee set up to monitor States’
adherence to the Convention, should not create a further avenue of
challenge to immigration decisions, including those relating to
removal or deportation from the UK.

4.13 The Optional Protocol (OP) to the Convention is unlike the Human
Rights Act 1998 in that it affords no domestic relief. The UNCRPD has
not been incorporated into domestic law and thus whilst it is binding on
the UK as a matter of international law and has interpretive effect, it
does not give rise to any direct domestic remedy.

4.14 Moreover, the right of individual petition under the OP could only
be used as a last resort once all domestic remedies had been
exhausted (or if the claimant could show that no effective remedy exists
in domestic law) and that their complaint is not pending consideration by
another international body (for example, the European Court of Human
Rights). In practice, most appeals under the existing UN Optional
Protocols fail to satisfy the admissibility criteria so very few cases
actually make it to the UN Committees. For example, no UK case has
made it to the CEDAW Committee which is the only other OP which the
UK has signed. The two UK cases which attempted to use the CEDAW
OP failed on admissibility grounds.

4.15 In practice then, the OP will present an extra or alternative avenue
of challenge only at the point at which a claimant has exhausted all
domestic processes and / or has satisfied the stringent OP admissibility
criteria. Given these checks and balances and, on the basis of the data
we have about the very small numbers of OP petitions raised to date,
the Commission's view is that concerns about the OP opening the
'floodgates' to unmerited appeals appear unfounded and such a broad
and far reaching reservation is a disproportionate response to such
concerns.
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4.16 The Commission notes that the government's concern that the OP
'should not create an extra avenue of challenge to immigration decisions'
was not set out in the Explanatory Memorandum to Parliament on
ratification of UNCRPD as one of the reasons for entering the
reservation. This is contrary to the requirement that reservations must
be both specific and transparent in order to be permissible10.

(v) The Government is to conduct a further review of arrangements
for access by foreign nationals to NHS services in England (see
pages 24-25 of the Department of Health document ‘Access to the
NHS by foreign nationals – Government response to the
consultation’, at
http://www.dh.gov.uk/en/Consultations/Responsestoconsultations/DH_1
25271).
The Government wishes to ensure that it retains the scope to
introduce such measures as may be appropriate in the light of that
review.

4.17 If the proposed measures arising from the review are objectively
justified and proportionate, these are unlikely to be precluded by the
Equality Act and / or the UNCRPD. However, domestic anti-
discrimination law will preclude discrimination against disabled persons
in the UK (or its ports) seeking access to NHS services, where that
discrimination is based on nationality or ethnicity or assumptions about
immigration status based on the same (see s9, 3 and 29 Equality Act
2010). This is unaffected by the UNCRPD.


(7) One element of the review process will be the completion of an
Equality Impact Assessment, and you are invited in particular to let
us have any information which you consider should be taken into
account in that assessment

4.18 The Commission welcomes the government's commitment to
complete an Equality Impact Assessment (EIA) before a decision is
made to withdraw or retain the reservation. It is important that the EIA

10
  Office of the High Commissioner, General Comment No 24, Issues relating to reservations made
upon ratification or accession, 4 November 1994, CCPR/C/21/Rev.1/Add.6
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considers fully and objectively what evidence and data (for example,
evidence submitted via this review, case studies, monitoring data UKBA
may already hold in relation to how disabled persons who are subject to
immigration decisions, legal advice) there is to support each one of the
considerations and rationale put forward by the Government for the
reservation and that this is analysed in respect of the impact upon
disabled people. Where an adverse impact is identified, the EIA should
set out what mitigation actions will be taken to address this and look at
what opportunities exists to improve equality for disabled persons. We
recommend that UKBA consults and involves disabled people and
disabled people's organisations in the EIA.

4.19 In carrying out the EIA and as part of the review process, UKBA
will, of course, need to ensure that it fulfils its obligations under the
public sector equality duty across all the protected strands and have due
regard to the need to:

     Eliminate unlawful discrimination, harassment and victimisation
      and other conduct prohibited by the Act,
     Advance equality of opportunity between people who share a
      protected characteristic and those who do not,
     Foster good relations between people who share a protected
      characteristic and those who do not.

4.21 Practical advice for public authorities on carrying out equality
analysis is available from the Commission's website at:
http://www.equalityhumanrights.com/advice-and-guidance/public-sector-
equality-duty/guidance-on-the-equality-duty/



  5. Recommendations

5.1 The Commission welcomes this review of the immigration
reservation to the UNCRPD. For the reasons set out above, t he
Commission's position is that the reservation is unncessary and invalid,
we therefore recommend that:

   the reservation is withdrawn as soon as possible.

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5.2   We also recommend that:

       disabled people and disabled people's organisations are
        involved in the Equality Impact Assessment (EIA) to be carried
        out as part of the review, and
       the data collated and the analysis undertaken during the EIA
        are made available publically.




                            Equality and Human Rights Commission
                                                     10 June 2011




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