Independent Living Institute in cooperation with Funktionsrätt Sverige (The Swedish Disability Rights Federation)

Introduction to the focus area

This analysis focuses on indirect or structural discrimination of migrants with disabilities on grounds of their national origin often intersecting with their disability in exercise of their economic, social and cultural rights. Since such structural discrimination is particularly prevalent among non-citizens with different kinds of migration status, this analysis mostly focuses on indirect discrimination of non-citizens with disabilities and with different kinds of migration status linked to their national origin. As follows, there is a short introduction to the state party obligations in order to eliminate racial discrimination in enjoyment of economic, social and cultural rights according to Article 5 of the United Nations International Convention on the Elimination of All Forms of Racial Discrimination as a basis for this analysis.  

Elimination of racial discrimination in enjoyment of economic, social and cultural rights

Article 5 in the Convention sets out that while undertaking the fundamental obligations under Article 2, states parties, which includes Sweden, undertake to eliminate all forms of racial discrimination in enjoyment of economic, social and cultural rights. General recommendation 20 further explains that whenever a state party imposes a restriction to any of the economic, social or cultural rights, which applies for everyone, then it must be ensured that this restriction does not cause racial discrimination. According to Article 2 in the Convention, this should be achieved through policy which includes all appropriate means such as amendments in policies, laws and regulations to prohibit such discrimination as well as special measures to protect the groups or individuals subjected to discrimination.

Article 1(1) in the Convention describes the scope of racial discrimination for the purpose of the Convention as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. General Recommendation 14 further clarifies that the kind of distinctions prohibited under the Convention are practices, which have the purpose of the effect of impairing particular rights. While determining whether a distinction has an effect contrary to the Convention, it should be considered whether the distinction in question has an unjustifiable disparate impact upon a group distinguished by characteristics such as national or ethnic origin.

Distinctions made between citizens and non-citizens

Article 1(2) specifies that the Convention does not apply to distinctions made between citizens and non-citizens. General Recommendation 30 issued by the Committee on the Elimination of Racial Discrimination further explains that human rights violations against non-nationals, particularly, migrants, refugees and asylum seekers occur widely in the context of discriminatory practices. Therefore, the general recommendation further explains that in terms of the obligations under Article 5, some civil, political, economic, social and cultural rights may be confined to citizens in accordance with Article 1(2) in the Convention.

However, in terms of the human rights, which are not explicitly reserved for citizens, the states parties are under an obligation to guarantee equal enjoyment of these rights for all people, including non-citizens. The general recommendation further clarifies the following: “Under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.”

Discrimination - differential treatment in similar situations and uniform treatment in different situations

The general recommendation 32 goes on to explain the following: “The term “non-discrimination” does not signify the necessity of uniform treatment when there are significant differences in situation between one person or group and another, or, in other words, if there is an objective and reasonable justification for differential treatment. To treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same.” It is then pointed out that the application of this principle of non-discrimination requires the characteristics of the groups being taken into consideration.

Hate crime - a crime with bias motivation linked to a perception of victims disability or ethnic background

Within the framework of discrimination, there is a need to touch on hate crimes. What defines a hate crime is that the perpetrator carries out the attack because of their negative attitude towards certain characteristics such as ethnicity, skin colour, race or nationality, creed, sexual orientation, cross-gender identity or similar circumstances. All these grounds, including disability, are included in the Swedish discrimination legislation.

In Sweden, the evaluation of hate crimes is complicated by the fact that disability is missing from the criminal protection against hate crimes.^[1] This, despite the fact that people with disabilities are more often exposed to violations and violence than people without disabilities. From a legal perspective, it is contradictory that the legislation protects certain groups that are at risk of being discriminated against in everyday life, but at the same time does not provide equivalent protection to all groups in the case of crimes where the act is motivated by the characteristics of the person.

The lack of criminal protection against hate crimes has serious consequences for how crimes against persons with disabilities are investigated and classified. When people with disabilities are missing from hate crime legislation, no measures are added to collect statistics or combat the occurrence of the crimes. There are no studies that explain why people with disabilities are more often exposed to, for example, assault, violence or robbery than people without disabilities.

The crimes are categorised based on the act and not based on the underlying reason for the act, which could be motivated by disability.

In other countries such as the UK and Norway where hate crimes on the grounds of disability are covered with legal protection a lot is brought to light. When the legislation is in place, measures such as inquiries on national level have been used to combat hate crimes against disabled people. An example of this is the publication from 2011 by the UK Equality Commission “Hidden in plain sight”.^[2]

In Norway, disability is covered by the Act on Protection against Hate Speech. There are proposals within the EU that disability should also be covered by protection in law against hate crimes and hate propaganda. The proposals are supported by the European disability rights movement.^[3] About half of the member states, but not Sweden, have introduced such protection. In order to strengthen the EU's fundamental values, Sweden needs to introduce national protection. The protection from hate crimes and hate speech in Sweden does not cover all grounds of discrimination.

Discrimination, hate crime and intersectionality

Furthermore, the notion of racial discrimination for the purposes of the Convention is in practice extended by the notion of intersectionality. Therefore, the prevalence of multiple discrimination is also addressed under the Convention when racial discrimination exists in combination with another discrimination ground. It is important to note that intersectionality is just as strong a factor in cases of hate crime as it is in cases of discrimination. Prevalence of hate crimes on grounds where disability is intersecting with ethnic background in Sweden needs to be addressed the same way as it was described above. Therefore, we recommend, the Swedish government urgently reviews and amends regulations on criminal protection against hate crimes and hate speech for people with disabilities to be covered in its multiple and intersectional forms on an equal basis.

Hereafter, this analysis aims to highlight prevalence of indirect discrimination on the grounds of national origin intersecting with disability as it largely affects the enjoyment of economic, social and cultural rights for migrants with disabilities.        

Current politics on migration - race to the bottom

The national politics in Sweden has under a long time played out in the context of a narrative of crisis. In 2015 Sweden, among many other European countries presented a narrative of the refugee crisis. Then came the public health crisis arising from the spread of Covid 19 virus 2020 and now, we have the narrative of economic and national security crisis arising from the Russian war against Ukraine and the rise of gang violence in Sweden. This narrative of crisis comes with a narrative of economic challenges, shortage of resources and a need to protect national security and welfare of the truly Swedish society. The political engagement in these issues has been increasing with every year and in today's politics these matters are matters of highest priority.^[4] The impact of this political dynamic on the lives of people living in Sweden could hardly be overestimated. Therefore, as follows I would like to highlight certain narratives in this political strategy, which manifest contemporary forms of racism and ableism as basis for legislative and administrative frameworks, which in effect cause indirect discrimination of migrants with disabilities.        

Contemporary manifestations of racism

As he declared the new government in October 2022, the newly elected prime minister said the following: “/../The, without an exception, biggest economic and social problems are caused by high rates of immigration and failed integration/…/”.^[5] This narrative of presenting migration into Sweden as a root cause of a wide range of social and economic problems has been progressively amplified since ´the 2015 refugee crisis´ to the point where it is one of the main building blocks of the current migration policy.^[6] Increasingly, migration is seen as a direct cause of criminality.^[7] Moreover, there is an increasingly amplified racist perception of the migrants´ cultural differentness^[8] leading to integration policies of the new government showing an inexplicit objective of assimilation. The aim of these policies seems to be to motivate people with migration background to work towards an ideal of being truly Swedish as a precondition of being included in the society.^[9] 

So, the political debate on migration policies has been increasingly dominated by a perception that there is an unavoidable contradiction between the aim of maintaining inclusive migration policy and the aim of maintaining ambitious welfare policies. Through such reasoning the interests of non-citizens have been weighed against the interests of citizens. Failure to ensure access to certain rights, such as for example the right to housing support for citizens is used as an argument to enact regulations which explicitly exclude migrants from such rights based on their migration status.^[10]     

Such narratives have been increasingly amplified year by year and lead to a political paradigm shift from a welcoming migration policy combined with good access to social rights being shifted towards an increasingly restrictive migration policy combined with increasingly limited access to social rights for migrants based on their migration status. The explicit aim of this paradigm shift is to deter people from seeking international protection in Sweden.^[11] The narrative of the refugee crisis has been a catalyst for a welfare nationalistic discourse.^[12]  As a result, obtaining asylum in Sweden is more difficult. Even when one has been granted asylum, the residence permit will be temporary rather than permanent, which also comes with limitations on the right to family reunification. Furthermore, the migrants´ right to welfare and social support are being limited as well based on their migration status. This way of bordering access to rights and creating hierarchization based on migration status is argued to be a form of necropolitics manifesting contemporary forms of racism.^[13]     

Contemporary manifestations of ableism

As we return to the speech from the newly elected prime minister, there is a narrative illustrating the contemporary manifestation of ableism becoming more and more prevalent as years go by, well concluded by the prime minister as follows: “Those being excluded and who year after year have been living on benefits, need to exchange the benefits dependence towards self sufficiency. /…/ Nothing remedies  poverty for an individual, like obtaining employment does.” Such narratives show clear negative attitudes towards groups in society deemed ´benefits dependent´ as inferior.

This narrative has led to a migration policy with a maintenance requirement as a precondition for different rights such as the right to permanent residence, work permit, family reunification and citizenship. The social support and welfare framework is shifting from good access to welfare and social rights as a precondition for ensuring a reasonable living standard for everybody towards a new regulatory setup where access to welfare and social rights is a privilege reserved only for those who have managed to obtain employment and the required standard of self sufficiency and therefore ´deserve´ access to support.  

The purpose of this is to emphasise the importance that the individuals contribute to their process of integration and ´make an effort´, in order to fulfil their part of the ´autonomous integration deal´. Furthermore, the maintenance requirement is a tool for determining who is willing and capable enough to contribute to their new home country without becoming a burden. While the specific notion of the positive effects of employment and self-sufficiency on individuals´ inclusion in the society is well grounded in research, the notion that an individual would be obliged to obtain employment and self-sufficiency in order to get access to welfare and social rights is much more controversial.

One of the reasons for this is the segregation in the employment market in Sweden meaning that people with migration background, even when they have the same qualifications as others, are less likely to obtain employment because of different factors such as not having a permanent residence permit or citizenship. Furthermore, the employment is often obtained through the individuals´ informal networks, so people with migrant background, who lack such informal networks are therefore less likely to obtain employment.^[14] From the perspective of this analysis it is relevant to point out that people with disabilities are also one of the social groups negatively affected as they are less likely to obtain employment and are generally in a disadvantaged economic situation.^[15] 

These two aspects illustrate the wide range of factors contributing to the structural barriers and inaccessibility faced by migrants and in particular migrants with disabilities in obtaining employment, sufficient income and housing to discharge the strict standards of self-sufficiency applied without due consideration of the specific situation of migrants with disabilities. Migrants with disabilities are likely to not reach the ableist ideal of ´a working citizen´, which means that they get stuck as being part of the two main groups considered not deserving of welfare and social rights, people in need of benefits and people with migration background.^[16] 

The aim and structure of this analysis

The aim of this analysis is to highlight some structural dynamics and practices in effect causing discrimination of migrants with disabilities, which need to be addressed while undertaking the obligations under Article 5 of the United Nations International Convention on the Elimination of All Forms of Racial Discrimination in Sweden.

Further along, the material is divided into seven sections, where each section describes the different aspects of indirect discrimination faced by migrants with disabilities with focus on one of the rights among the economic, social and cultural rights.

The seven sections in this analysis are linked together as each section makes references to the issues discussed in the previous sections. The aim of this structure is to highlight a causal relationship illustrating how discrimination in enjoyment of one right causes discrimination in enjoyment of other rights as well. For example, discrimination in exercise of the right of access to public places and services also affects the enjoyment of other rights such as the right to work, right to social security, right to asylum and family reunion etc.

Analysis carried out in an apparent statistical darkness

One last thing to note before moving on to the discussion focusing on the specific rights is the apparent lack of data, in particular disaggregated data on matters relating to the situation of people with disabilities. Such lack of data is also apparent in matters relating to the situation of people with migration background. If it comes to data, in particular disaggregated data on matters relating to the situation of migrants with disabilities, then it is mostly limited to results of sporadic, small-scale analytical exercises, with its apparent limitations in terms of providing basis for a comprehensive analysis of the subject area.  

For example, migrants with disabilities are more likely to consider that they have poor health than Swedes with disabilities. Among migrants without a disability in comparison to Swedes without a disability there is almost no outcome difference in this matter. The outcome difference between people with migration background and people with Swedish background is bigger among people with disabilities than people without a disability.^[17] This piece of data does not only highlight the appalling outcome difference in self-assessed health status for migrants with disabilities. It also showcases the amount of information revealed by disaggregated data on this particular social group.

By looking at the data on the self-assessed health status of people with disabilities or people with migration background it looks like the outcome difference is affected by the person's disability and that it is not really affected by the persons migration background. By looking at the disaggregated data on migrants with disabilities, it becomes clear that the combination of having a disability and migration background largely affects the outcome of the self-assessed health status. In other areas of this analysis at best based on data on either people with disabilities or people with migration background, it can only be imagined, how much further the analysis could reach with disaggregated data on migrants with disabilities as basis in all of the areas discussed.  

1. Right of access to any place or service intended for use by the general public

The relevant actors must include a perspective of the diverse needs of people within the society in their planning, design and practical work in order to ensure that everyone can exercise their right of access to any place or service intended for use by the general public. This principle must be applied by state, private and civil society actors both on national and local level. This right cannot be truly exercised by everyone if the public places and services are being designed in an absence of a perspective of the needs of certain social groups in the society. Currently, the majority of the analysis either ordered or carried out by the Swedish state authorities lack a disability perspective.^[18] This is an example of how the different actors fail to include the perspective of persons with disabilities and persons with migration background, which has unjustifiable negative effects on the right of access to public places and services for them.  

Built environment and transport

Accessibility of the built environment is a key precondition for ensuring the right of access to public places and services. This includes accessibility of the built environment in all areas of the society including public and commercial environments as well as the environment in cities and rural areas. Public procurement can be a powerful tool for ensuring that all buildings, products and services controlled by the state authorities are accessible. However, practices where the public procurement procedures lack an accessibility requirement are recurring. This is an example of how inaccessibility in the built environment is not being addressed by the responsible authorities and other stakeholders. People with disabilities generally travel less than others as well. One factor causing this is undeniably the lack of accessibility in transport.^[19] This leads to persisting conditions of lack of accessibility in the built environment and transport which in turn has unjustified negative effect on ensuring the right of access to public places and services for certain social groups for example migrants with disabilities.

Digitalization

Digitalization is one of the most powerful trends of advancement in contemporary public services. There is an increasing range of public services becoming digital including worklife, education, media, medical services and social support, public administration and financial services. A key factor in ensuring access to such digital services is whether a person can use a digital device with internet connection. Whether a person can use a digital device with an internet connection can depend on many aspects. Socioeconomic situation for the person is one such aspect. People with disabilities generally live in a disadvantaged economic situation.^[20] Also people with migration background are one of the social groups more likely to live in material and social poverty.^[21] According to data from the authority responsible for monitoring digital accessibility, there are significant gaps in accessibility on websites of several state, regional and municipality stakeholders. For the purpose of this analysis it is interesting to note that the website of the Swedish Migration Agency is among websites deemed ´difficult to use for many people´.^[22] Limited access to a digital device with an internet connection in addition to limited accessibility in the digital services are factors contributing to a situation where migrants with disabilities have less access to the digital public services. This has an unjustified negative impact on the exercise of the right of access to public services for migrants with disabilities.

Individual support

Accessibility in all areas of society needs to be combined with individual support, for example individual transport service, assistance or adapted cars in order to ensure access to public places and services for everyone. For example, personal assistance is a support service for people who need assistance linked to their disability in their daily lives when visiting public places, using public services and/or at home. However, such individual services often are linked to social rights. Migration status is a deciding factor for the scope of social rights a person has. People, considered as not permanent residents in Sweden have very limited right to disability support and service resulting in apparent limitations to their access to the individual support they need for their access to public places and services.^[23] 

The service for individual transport is the only way to ensure access to public transport for people, who are not able to use the general transport measures. However, the amount of people considered eligible for the individual transport service in Sweden has decreased and reached the all-time lowest number in the past 30 years.^[24] It is not fully clear from the currently available data, why exactly the number of people granted access to individual transport service is decreasing. However, there are clear indications that one of the reasons for that is regulatory restrictions introduced by different actors which limit the right to individual transport service for specific groups of people for example, people with visual impairments.^[25] 

Information and communication

Access to public places and services is in various instances linked to access to information and communication in accessible formats and in a language the person understands. For migrants with disabilities accessibility in information and communication includes both access to information in different formats as well as information and communication in a language the person understands and can use.^[26] A crucial factor here is whether the individual gets access to communication with interpretation if needed. Interpretation includes spoken language interpretation as well as sign language interpretation or other kinds of interpretation into a communication mode used by the person with a disability.  

Overwhelming majority of information dissemination is carried out by means of only using the Swedish language by different authorities in Sweden. There is a service for interpretation, but the availability of this service is strictly limited and even when the service for interpretation is available, the quality of interpretation varies to a great extent occasionally to the point where the interpreter completely fails to contribute to facilitating the communication. This can have far reaching consequences on the person's life or support they may or may not receive. For example, when a person misunderstands the rules regarding their support from the Unemployment Authority, this can in many instances lead to severe loss of income.^[27] 

There are also recurring instances of manifestations of racism or ableism by the different persons or stakeholders against migrants with disabilities, so they get dismissed or not taken seriously in communications which affect their access to all areas of society.^[28] Such racism and discrimination affects both adults and children. Children are affected indirectly, when their parents experience racism, ableism and discrimination leading to social isolation of both parents and their children. Furthermore, racism is clearly prevalent in the school environment and many children, who have experienced racism at school, witness being dismissed and not taken seriously and therefore not receiving any support as victims of racism and discrimination.^[29] Dissemination of information only by means of using the Swedish language and manifestations of racism and ableism in communication are examples of how access to information and communication is in different ways limited for migrants with disabilities, which has unjustified negative effects on their enjoyment of the right of access to public places and services.       

Right of access to public places and services - a precondition for other economic, social and cultural rights

Before closing the discussion on the discrimination of migrants with disabilities in enjoyment of their right of access to public places and services it is important to highlight that the right of access to public places and services is often also a precondition for access to other economic, social and cultural rights. For example, the right to work can be linked to the right of access to transport in situations where a person either has access to public transport or not and therefore they either can travel to their workplace or not, which are matters affecting their access to employment.^[30]

2. Right to work

Being able to exercise the right to work without discrimination is one of the vital building blocks of social cohesion. Furthermore, non-discrimination in access to the right to work is a precondition for many other economic, social and cultural rights. Both social groups of people with disabilities and people with migration background are negatively affected in the area of employment resulting in higher rates of unemployment among other indicators illustrating limitations in access to the right to work for migrants with disabilities. There are several factors causing this.

For example, people with migration background, because of their social position in a new country, often lack an informal social network, which is often important in order to find a job and obtain employment. Persons' status as a non-citizen or having only a temporary residence permit can have a negative effect on persons' access to employment.^[31] The effect of these limitations to the right to work is particularly prevalent among women with disabilities^[32] and women with migration background^[33]. So, the matters relating to discrimination in enjoyment of the right to work has a clear intersectional pattern in terms of personal characteristics such as gender, disability and migration status.

Access to employment support

The Swedish Public Employment Service is the state authority responsible for unemployment support as well as support for individuals in different areas of the labour market. The authority is currently going through an extensive administrative reform which was initiated in 2019. There are several factors indicating that the measures undertaken as part of this reform negatively affect access to employment support for people with disabilities. For example, the reform included measures such as decreasing the authority´s specialist capacity on support for people with `special needs` as well as strongly increased use of digital services. This has led to less personalised contact with people who seek support from the authority. Less personalised contact in turn has led to issues with early identification of a person's disability and need for support as well as accessibility issues in terms of access to support through the digital communication and services.^[34] 

Furthermore, the general statistic from the authority shows a decrease in support services for people with disabilities despite an increase in the number of people with disability as long term unemployed.^[35] In assessment of the need for employment support there is a practice of assessing the so called work capacity of the person. The assessment of work capacity affects the type and amount of employment support the person will be considered eligible for. There are instances, where migrants with disabilities hide their disabilities from the authorities as they anticipate that a disclosure of a disability would lead to assessment of low work capacity in turn leading to access to lower degree of employment support.^[36] 

Right to work and its relation to other economic, social and political rights

So the above mentioned indications of limited access to employment per se as well as indications of limited access to employment support linked to the persons disability, migration status and/or gender have unjustified negative effects on the enjoyment of the right to work for migrants with disabilities. Furthermore, limited access to the right to work in many instances affects access to other rights such as the right to social security or the right to asylum or family reunification, because of the economic advantage or a lack thereof as well as different types of eligibility conditions for certain rights requiring certain levels of income or living standard.

3. Right to housing

The right to housing is a basic building block for ensuring enjoyment of human rights recognised both nationally and internationally in Sweden. Ensuring access to housing for our population poses challenges to our society. However, even in the context of the general societal challenges in the area of housing, people with disabilities^[37] and people with migration background^[38] are among the social groups often in an even more disadvantaged situation in terms of access to housing than the general population. This issue largely affects both adults and children with a migration background. Children with migration background are more likely to experience child poverty, which has many consequences on their enjoyment of the different social rights including their right to adequate housing. For example, children who experience child poverty are likely to live in families, who have to move often and live in unsafe or otherwise inadequate housing conditions because of the family´s economic situation combined with inadequate access to housing support as well as other social and economic rights.^[39] 

Referral to a municipality of residence - a social rights lottery

If an asylum seeker has been granted asylum and therefore also receives a residence permit issued by the Migration Agency, then the next step is for the Migration agency to refer the person to one municipality meant to become the municipality of residence for the person. As this municipality will then become the municipality of residence for the person, the municipality will also be responsible for providing different social and public services run by the municipality to the person. These public and social services include schools and adult educational programmes (swedish language courses), housing support, social support both in form of benefits and services etc.

Therefore, the referral to a municipality is a step of vital importance for the future integration of the person who has been granted asylum. For example, the labour market situation in the municipality, where the person is referred to is a factor to a high degree affecting the person's access to the labour market. That in turn largely affects how likely the person is to successfully enter the labour market and obtain employment.^[40] Another factor of vital importance is the level of accessibility in public and social services for migrants with disabilities.^[41] For example, not all municipalities can provide Swedish language courses, which are accessible for migrants with different types of disabilities. Some municipalities face big difficulties in ensuring access to housing for everyone living in the municipality, which will to an even higher degree affect migrants with disabilities trying to find accessible housing as new residents of these municipalities.      

Access to public places and services affects access to housing

The right of access to public places and services, discussed earlier under the first section, to a large degree affects the enjoyment of the right to housing. The issues of accessibility in the built environment as well as in the digital services, lack of individual support, lack of accessible information and communication have a clear causal relationship with limited access to housing for migrants with disabilities. This dynamic is amplified for asylum seekers with disability who after they are granted asylum get their referral for residence in a municipality where public places and services as well as individual support are inaccessible and/or generally difficult to reach.^[42] 

For example, in the Stockholm area, the shortage of housing leads to extreme challenges for people to find housing. For migrants with disabilities, it is nearly impossible to find housing without using any social support measures. Therefore, there are a range of social support measures in place to mitigate the effect of shortage of housing on certain social groups such as people with disabilities. One such measure is that a person with disability can apply for a right of priority in a waiting list for a rental apartment. However, because of the lack of accessible information and communication, many migrants with disabilities are not able to use this support measure despite their desperate need for this type of support. This has an unjustified negative effect on their enjoyment of the right to housing.    

4. Right to social security and social services

The right to social security is of vital importance in terms of individual choices, access to a good standard of living as well as ensuring psychological and physical well-being.^[43] People with disabilities and people with migration background belong to the social groups more affected by situations of economic disadvantage than the general public. People with disabilities are more likely than the general public to end up in a situation where they are in debt for basic costs of living such as a payment of rent or electricity for their housing, which also leads to a sense of worry and uncertainty on a personal level.^[44] People with migration background are more likely than the general public to be living in material and social poverty.^[45] This affects both adults and children meaning that children with migration background are more likely to experience child poverty.^[46] 

As both people with disabilities and people with migration background are likely to be affected by situations of economic disadvantage, access to social support services and benefits is of vital importance for facilitating enjoyment of the right to social security without discrimination. The right of access to public places and services, discussed earlier under the first section, to a large degree affects the enjoyment of the right to social benefits and services. If the systems for applying for social benefits and services are not accessible or the service provision itself is inaccessible for people with migration background or people with disabilities, then that limits the enjoyment of the right to social benefits and services as well. Access to information and communication in different formats and in different languages is among the most common instances of inaccessibility negatively affecting the enjoyment of the right to social benefits and services.    

Access to social support and migration status

People with certain kinds of migration status (for example: asylum seekers and beneficiaries of temporary protection) are not being considered as permanently residing in Sweden and therefore they are not eligible for some social and financial support measures reserved only to people who are considered permanently residing in Sweden. This covers much of the disability support available in Sweden, which people with certain migration status are not eligible for because of the permanent residence requirement.^[47] 

Furthermore, even in parts where people with certain migration status are eligible for disability support, the level of ambition in the support provided differs in some instances. For example, for permanent residents disability support can be provided according to two pieces of legislation. The level of ambition in the service provision is defined differently in these two pieces of legislation. In the Act Concerning Support and Service for Persons with Certain Functional Impairments (LSS)^[48] there is a higher level of ambition in the service provision defined as an obligation to guarantee good living conditions. In the Social Services Act (SoL)^[49] there is a lower level of ambition in the service provision defined as an obligation to guarantee reasonable living conditions. People, who are not permanent residents only have the right to receive support according to the Social Services Act (SoL) as support according to the Act Concerning Support and Service for Persons with Certain Functional Impairments (LSS) is reserved only for permanent residents. This means that disabled people with certain migration status only have access to support with a lower level of ambition. This negatively affects the access to the social support for both adults and children meaning that this issue would need to be addressed even while Sweden undertakes the state party obligations according to Article 23 in the Convention on the Rights of the Child concerning the right to social support for children with disabilities.    

Access to social support and disability

Eligibility assessment and procedural rules for social support services and benefits meant to facilitate good establishment of migrants in a recurring manner include conditions and requirements, which exclude migrants with disabilities. For example there is an establishment program available for people who have been granted asylum. The program is usually a full-time activity where the person gets support with learning Swedish language, preparing for and obtaining employment, civic orientation in the Swedish society etc. During the time of the establishment program, there is an establishment allowance paid to the person participating in the program. This program is available only for persons who get their capacity to participate in the program assessed to be at least 25% or more. So, people who in the context of their disability get their capacity to participate in the program assessed to be less than 25% are not eligible for the establishment program.  

Furthermore, this establishment program is available only for a limited period of time for each person.^[50] So, there are instances where a disabled person happens to be on a sick leave or for some other disability related reason cannot participate in the establishment programme during the restricted period of time, which leads to denial or limited access to the benefits of the establishment program.^[51]

5. Right to education

The right to education includes education starting with primary school all the way into secondary education, adult education and higher education. Access to education or lack thereof affects many other areas of life, such as access to employment, health and social security.^[52] That way limitations in enjoyment of the right to education also negatively affects the enjoyment of the right to work, right to health and the right to social security as well as other aspects of economic, social and cultural rights. People with a migration background are somewhat more likely to not have access to higher levels of education, even though the outcome in terms of level of education varies to a high degree between different groups of people with migration background.^[53] People with disabilities are also more likely to not have access to higher levels of education. People with disabilities are also more likely to begin a high school level education without completing it.    

Access to education for migrants with disabilities

The statistical data on people with disabilities and people with migration background shows some, although minor differences in access to education in comparison to the general public. This is an indication of structural barriers for migrants with disabilities limiting their right to education. One factor contributing to such hinders is that migration status has an effect on the right to public education including the right to Swedish language courses. The right to such public education is limited for people who are not permanent residents in Sweden.^[54] Another issue for students with disabilities is that support services are being introduced too late, so the absence of support in the earlier years of school affects the educational development of the student which in turn affects their possibilities for further education.    

Accessibility and individual support - preconditions for access to education

The issues around inaccessibility discussed in the first section of this analysis in the educational environment largely affect access to education for migrants with disabilities. This includes issues of inaccessibility in the built environment, lack of access to individual support as well as lack of accessible information and communication both in terms of the structure around education as well as in terms of the actual contents in study materials. Such issues of inaccessibility can lead to higher rates of missing school or lower success rates in reaching their study goals for students with disabilities.^[55] 

There are recurring instances, where underfinancing of public stakeholders responsible for providing education for adults with intellectual disabilities leads to denied education for individuals with multiple disabilities. Furthermore, limited access to social support both in the form of services and benefits can lead to situations where individuals do not have the support or economic resources they would need for their studies. In recent years it has become increasingly harder to get access to economic support for students with disabilities.^[56] 

Decrease in access to courses for people with intellectual disabilities

The number of students enrolling in courses for adults with intellectual disabilities has been decreasing in past years linked to different regulatory aspects, for example that there are requirements for eligibility and educational development in secondary and high school level education, which are impossible to reach for some students with disabilities. Increased geographic distances to public actors providing adapted courses for people with disabilities in combination with recurring instances of denied access to accessible transport for the students is another factor negatively affecting access to education for students with disabilities. The public actors responsible for providing adult education to people with disabilities have identified issues, which make it difficult to reach migrants with disabilities. Despite the fact that they have lived in Sweden for a long time the public actors fail to collect data on this social group and to come in contact with them.    

Swedish language courses for migrants with disabilities

If it comes to the Swedish language courses for people with migration background, then issues of accessibility do affect access to Swedish language learning for migrants with disabilities. For example, students with intellectual disabilities are likely to not undertake the whole course and complete it because of it being inaccessible for them. Some municipalities provide adapted courses for the Swedish language and some do not.^[57] There are recurring instances where the Migration Agency does not consider availability of an accessible language course for a migrant with a disability as they make the referral to a municipality of residence for that person. That way migrants with disabilities can get a referral to reside in a municipality without access to an adapted Swedish language course, with an apparent and unjustified negative effect on the person's access to education.      

6. Right to health

The right to health includes many areas of policy and on an individual level it includes many areas of life. Different factors in one's life such as their occupation or an absence thereof, economic situation, access to education, access to housing and general access to societal participation have an effect on a person's health.^[58] Health inequality is prevalent among different social groups in different socioeconomic situations. People with disabilities and people with migration background are among the social groups most likely to experience health inequality than the general public. People at risk of poverty and people without upper secondary education are more likely to experience health inequality as well.^[59] This links back to the issues around enjoyment of the right to social security and the right to education discussed earlier which even affect the enjoyment of the right to health for migrants with disabilities.

Furthermore, people with disabilities are twice as likely to not receive medical care despite their need thereof in comparison to the general public. Migrants with disabilities are even more likely to not receive medical care despite a need thereof than Swedes who have a disability. The outcome difference between people with migration background and people with Swedish background is significantly bigger among people with disabilities than people without a disability.^[60] As follows, there are some examples of how migrants with disabilities have limited access to health care, which has unjustified negative effects on their right to health.      

Access to health care for migrants with disabilities

The right to medical care is to a high degree limited for people with certain migration status. For example, asylum seekers and beneficiaries of temporary protection only have a right to medical care, which ´cannot be postponed´ as well as maternity care.^[61] The right to medical care in Sweden is largely defined by the Health and Medical Services Act. The scope of this law arguably goes beyond regulating access to medical care as it includes regulations on even access to technical aids. This means that largely the same limitations as the ones for access to medical care apply also for access to technical aids which migrants with disabilities are in need of in their daily lives. Furthermore, individuals and families, who are forced to move often between different accommodation arrangements during their asylum process or because of poor economic situation have also more limited access to health care as they are frequently forced to reorganise their lives in a new location. In a recurring manner, health care needs of children in these families are being dismissed or in practice go unaddressed because of their life situation being too unsteady on a long term basis in order for the authorities to be able to plan and provide them with long term health care and social support measures.^[62]   

Health examinations for migrants with disabilities

Asylum seekers are offered free health examinations after arriving in Sweden. The aim of these health examinations is to identify illnesses and ensure that asylum seekers have received their vaccinations. The absence of an explicit objective to identify whether an asylum seeker may have a disability and therefore need disability support is arguably the root cause of the delay in identification of the need for disability support for asylum seekers with disabilities.^[63] The asylum seekers are contacted by means of a letter sent to them by post. In some regions the letter is written in Swedish and the asylum seeker is expected to seek interpretation support to understand the letter.

Because of issues with registering home addresses for asylum seekers there are recurring instances of these letters not reaching the asylum seekers.^[64] Even when the letter is received by the asylum seeker there are obvious issues in terms of inaccessibility in information and communication, discussed under the first section of this analysis as the communication is provided only in written format. The inaccessibility in this instance of communication becomes particularly prevalent in regions where the letter is written only in Swedish as the asylum seeker is somehow expected to have the necessary knowledge and means for communication to successfully apply for interpretation and follow up on the offer for a health examination.  

Another way of missing out on the health examination is recurring instances of asylum seekers choosing not to undertake the examination. That can happen because of inaccessible information and communication about the purpose of the health examination. There are recurring instances of asylum seekers not opting for the health examination because they anticipate that as their disability might be identified during the health examination, this might negatively affect their asylum application or access to labour market support.

Even when the asylum seeker does undertake the health examination their disability might go unidentified because of issues linked to intercultural communication and that the cultural background of the asylum seeker in relation to their health is misunderstood by the health professionals. There is no routine to test for example hearing and language development as part of the health examination, which means hearing impairments and support needs related to language development or learning disabilities go unnoticed. As the asylum seekers with undiagnosed conditions do not get their disabilities identified, they do not get any referrals for further support as people with disabilities.^[65]   

7. Right to asylum and family reunification

Right to asylum

Despite the absence of any disaggregated statistical data on how many asylum seekers arriving in Sweden have a disability, there still are indications that there is a significant amount of asylum seekers arriving in Sweden with both identified and unidentified disabilities upon arrival to Sweden or later in their asylum or establishment process. Some disabilities go unidentified through the Swedish asylum reception system partially because of lack of disability related competence and routines in the reception system and partially because the asylum seekers themselves either are unaware of their disability or have fears linked to social stigma around disability and therefore they do not want to reveal their disabilities as they do not anticipate any support from the authorities.

In order to introduce disability support measures for an asylum seeker with a disability, early identification of a disability is vital for a fair asylum process as well as an effective establishment in the society. Therefore asylum seekers with unidentified disabilities are in situations of disadvantage in terms of their overarching right to asylum as well as in terms of their economic, social and cultural rights later on in the process of establishment.^[66]   

Lack of accessibility in the asylum procedure

The issues around inaccessibility discussed in the first section of this analysis in the different stages of the asylum process largely affect the enjoyment of the right to asylum for migrants with disabilities. This includes issues of inaccessibility in the built environment, lack of access to individual support as well as lack of accessible information and communication.

For example, when the asylum seeker with a disability is not provided with accessible communication, there is a high risk of misinformation and misunderstanding between the asylum seeker and the authorities. This can happen for example with someone with hearing impairment, who does not get access to sign language interpretation in a sign language variation understood by the person or a person with a neuropsychiatric diagnosis, who is not able to recount traumatic events leading up to their asylum application. That way the reasoning behind the person´s asylum application may be presented as absent or weak even when in fact the person has a well-grounded reasoning for their asylum application. This can lead to the asylum application being rejected which can have catastrophic consequences in terms of the asylum seekers enjoyment of the right to asylum and the underlying human rights.

Lack of access to information in accessible formats and in a language the person understands can lead to situations, where asylum seekers with disabilities are not able to enjoy their rights because of lack of awareness thereof. For example, the right to choose a case worker during an asylum process is a right in recurring instances not enjoyed by asylum seekers with disabilities, because the information about this has not been available in accessible formats to them.^[67]   

Maintenance requirement for a permanent residence permit

If a person is granted asylum in Sweden, they are always granted a temporary residence permit (notwithstanding the quota refugees), which can be renewed if the asylum seeker still fulfils the eligibility conditions for a new temporary residence permit. Such an approach of only granting a short-term residence permit to all asylum seekers is obviously problematic in terms of providing stability and predictable preconditions for re-establishment of their lives in safety for asylum seekers.

There is an option of applying for a permanent residence permit after three years of temporary residence, but the eligibility conditions for such permanent residence permit are significantly stricter to the point where some of these eligibility requirements might be impossible to fulfil for asylum seekers with disabilities. Therefore, asylum seekers with disabilities are even more likely than other asylum seekers to be subjected to a long period of their life, where they have to go through repeated assessments of their asylum needs linked to the procedures for renewal of their temporary residence permit. This way they are subjected to life of long periods of uncertainty regarding their continued enjoyment of the right to asylum as well as a prolonged life situation without any possibilities for making any long term plans and life arrangements.^[68] 

For example, the maintenance requirement which among other things includes a requirement of sufficient income (benefits not included) to discharge the conditions required to be granted a permanent residence permit.^[69] For example, migrants with disabilities are generally likely to experience some apparent disadvantages in access to the labour market to secure a sufficient income to discharge the maintenance requirement as it has been discussed earlier in this analysis. This means that it is almost impossible for migrants with disabilities to discharge the maintenance requirement which in turn makes it almost impossible for them to obtain a permanent residence permit.^[70]     

Right to family reunification

Asylum seekers, who have become separated from their families as they have had to flee to Sweden and granted asylum have a right to apply for family reunification meaning that their family could be granted a residence permit in Sweden as well. The right to family reunification is of significant value to the system of asylum reception as it provides one of the very few ways for people in need of protection to travel to Sweden legally and safely.

If the family reunification is applied for three months or longer after the issuance of a residence permit for the applicant, then the applicant is required to fulfil a maintenance requirement which among other things includes a requirement of sufficient income (benefits not included) and a housing of sufficient size to discharge the conditions required to be granted the right to family reunification.^[71] Because of the lack of accessible information on the rules around family reunification, the asylum seekers with disabilities are likely to miss the three month window for their application of family reunion and therefore they are more likely to be subjected to the maintenance requirement.^[72] 

For migrants with disabilities it is almost impossible to discharge the conditions of the maintenance requirement, because of the issues of inequalities and limitations of their access to the different economic, social and cultural rights, as preconditions for being able to fulfil the maintenance requirement. For example, people with disabilities are generally likely to experience some apparent disadvantages in access to the labour market and have some apparent disadvantages in their access to sufficient size of housing to discharge the maintenance requirement as it has been discussed earlier in this analysis.^[73] 

Despite that, the maintenance requirement is applied more or less the same way for everyone, who applies for family reunification. The maintenance requirement includes a provision, which allows for exceptions from the maintenance requirement when there are some exceptional circumstances for such an exception.^[74] In praxis this provision is not applied in cases of migrants with disabilities. The United Nations High Commissioner for Refugees Representation for the Nordic and Baltic Countries has recently raised concern over the severe unjustified effect of the maintenance requirement on the enjoyment of the right to family reunification for many asylum seekers^[75], including asylum seekers with disabilities.^[76] 

ID-requirement

There is also an ID-requirement that the family members who are to travel to Sweden for family reunification have a valid passport or that they can prove their identity to a sufficient standard of certainty. This requirement can be extremely difficult to fulfil for people who travel from countries without a functioning state administration system with capacity to issue such required travel and identity documents.^[77] 

Recommendations

Thus far this analysis has raised different issues in terms of ensuring equality and non-discrimination of migrants with disabilities. More specifically, the focus has been on issues around lack of measures to combat hate crimes on the grounds of disability and ethnic background, issues arising from the contemporary manifestations of racism and ableism as well as issues around lack of measures to ensure equal enjoyment of economic, social and cultural rights while ensuring non-discrimination of migrants with disabilities in the enjoyment of these rights. In order to effectively address these issues and ensure fulfilment of the state party obligations under the United Nations International Convention on the Elimination of All Forms of Racial Discrimination the following recommendations should be considered:

• Urgent initiative to review and redefine the aim and goals in social and migration policy so that the future social and migration policy no longer is influenced by racist and ableist perceptions and narratives of people with disabilities and people with migration background. Such review and redefinition of policy goals should also result in a political development with policy goals based on the state party obligations according to the United Nations International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of People with Disabilities.  
• Establishment of a policy and legislative principle in the area of migration and social policy, that all legislative, policy and practical measures include a comprehensive disability perspective. This is necessary to ensure that these measures effectively combat discrimination and inequality faced by migrants with disabilities. Furthermore, establishing such a principle of disability perspective in migration and social policy is also a vital precondition to ensure due implementation of state party obligations arising from different international agreements and other legal and policy instruments in the area of social cohesion and human rights such as for example the United Nations International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of Persons with Disabilities and United Nations Sustainable Development Goals.
• Urgent review and amendments of regulations on criminal protection against hate crimes and hate speech for people with disabilities to be covered in its multiple and intersectional forms on an equal basis.
• Ensuring structured disaggregated data collection regarding the situation for migrants so that it includes disabilities, gender, age, nationality and ethnicity throughout the asylum process, from reception to the possibility of applying for and obtaining a permanent residence permit and the possibility of applying for and obtaining Swedish citizenship.
• Urgent initiative of broad inquiry with the aim to identify barriers in legislation and policy barriers for migrants with disabilities to exercise their economic, social and cultural rights throughout the asylum process, regardless of migrations status.
• Since measures of individualised support for disabled people are crucial precondition for ensuring their equal enjoyment of economic, social and cultural rights, there is a need for urgent review and amendments of legislation regulating the right to different kinds of support measures for disabled people in Sweden. The legislation needs to be amended so that all disabled people regardless of their migration status can get access to individualised disability support as a precondition for their equal enjoyment of economic, social and cultural rights without discrimination.

 

 

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