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.
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.
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.
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).