Reyes Aguilera, Daniela v. Argentina

The appeal questioned the constitutionality of a norm requiring immigrants to prove 20 years of residence in Argentina to qualify for a disability pension; Right to Social Security on a basis of Non Discrimination; Legitimate restrictions to ESCR imposed by regulation; Regulation requiring differential treatment between national and foreign citizens with a disability.

Date of the Ruling: 
Feb 5 2013
Supreme Court of Argentina
Type of Forum: 

The case was filed in March 2003 to force the Comisión Nacional de Pensiones Asistenciales (national agency in charge of welfare pensions) to grant a disability pension to Daniela Reyes Aguilera, a Bolivian girl who has a disabling condition preventing her from moving legs and arms, speaking, and eating on her own. Article 1, paragraph "e" of Decree 432/1997, which requires foreign citizens to prove legal residence in Argentina for at least twenty years in order to qualify for disability pensions, was contested as unconstitutional. When the case was filed, Daniela was 12 years old, and had been a permanent resident for two years and a de-facto resident for four years. The presentation expressly mentioned the following rights guaranteed by Argentina's Constitution and international human rights instruments: right to health, right to an adequate standard of living, right to equality before the law and to non discrimination based on national origin, rights of the child, and right to social security.

The first two judges hearing the case decided against the request. The case then reached the Supreme Court, which, by majority[1] vote but based on several different grounds, favored the request, stating that "the residence requirement under Art. 1.e in Decree 432/97 does not apply on grounds of unconstitutionality". Some justices stated in their decision that the issue at stake was the right to social security, and the questioned norm implied an unreasonable and disproportionate limitation to the human right to social security. Other justices based their decision on the obligation against discrimination based on prohibited grounds. By applying the strict scrutiny test, the Court found that the State had not been able to prove the proportionality and reasonability of the 20-year residence requirement imposed on immigrants.

Keywords: Reyes Aguilera, Daniela v. Argentina, Equality, Nondiscrimination


[1] Two justices gave a dissenting vote.

Enforcement of the Decision and Outcomes: 

Daniela started receiving the disability pension requested. However, given that the Supreme Court decision applied only to the case at stake, the government did not change the 20-year residence requirement to qualify for disability pensions and has continued to deny it to immigrants who have been residents for less than 20 years. The legal clinic that was a party to the case is trying to bring about a change in the rules through administrative venues, by lobbying the government and filing administrative presentations that have not yet had much success.

Groups involved in the case: 

The case was filed by a legal clinic for migrants jointly coordinated by Universidad de Buenos Aires, Comisión Católica para los Refugiados (CAREF) and Centro de Estudios Legales y Sociales (CELS).

Significance of the Case: 

This case is of major significance, because it deals with the content and extension of the right to social security, the limitations of a State's discretional powers upon regulating social rights, and the interpretation of differential treatment of foreigners and nationals with a disability. However, the decision lacks strength, because justices voted on an individual basis and there are even conceptual differences regarding the principle of non discrimination among several justices. In any case, a key issue such as access to social rights by migrants with a disability was thus exposed to public debate.