Territory and Capacity

Foreign migrants are heavily scrutinized by the so-called “host" states in Western Europe. Under international law, states are allowed to reserve certain social rights to their own nationals. Domopolitics (Walters, 2004) and welfare chauvinism (Huysmans, 2000) foster negative discriminations against foreign immigrants on the basis of nationality. The case of “people with disabilities” is different. For centuries, the ableist (Campbell, 2009; Goodley, 2013, 2014; Tabin et al., 2019) line of demarcation between able-bodied and people with disabilities organizes the social question (Castel, 1995, 2003). Disability is now perceived as a common ground for positive discrimination in terms of welfare rights and access to benefits, among other rights. Most of these social rights have been enshrined in the UN Convention on the Rights of Persons with Disabilities (2006) which came into force in Switzerland in 2014. However, some of these social rights such as access to disability schemes and social assistance are not explicitly stated within this treaty, thus granting nation states room to interpret which social rights can be granted. Such is the case in Switzerland where there is a recent policy trend, as reflected as well in the most recent revision of the Law on Foreigners and Integration (2005), or the Bilateral Agreement on the Free Movement of Persons (1999), or in the Swiss Citizenship Act (2014), as in the fifth revision of the Disability Insurance (2007) or in the invalidity supplementary benefit schemes, to restrict access to social rights. These restrictions include access to disability pensions, complimentary assistance or even in some cases naturalization of disabled migrants. This kind of trend will be examined through the theoretical lenses of the formation of groups and categories such as ethnicity and disability. It has been labelled by Roger Brubaker (2002, 2015) as groupism, which is a reification process by which individuals are reduced to specific group characteristics and institutionally embedded into a society, as are foreign nationals, “ethnicities” (Wimmer, 2013) and “people with disabilities”. The objective of this paper is to examine on the one hand how these categories are constructed by the different laws, and on the second hand how they interact in decisions of the Swiss Federal Court in 17 cases from 1984 to 2019, involving migrants with disabilities. Our objective is to understand the parallel processes of ethnic and ableist differentiation. In order to achieve this goal, the following questions will be posed: How and to what extent does ethnicity and ableism influence decisions made by judicial actors in cases involving migrants with disabilities? Furthermore, what types/kinds of categories and legal rational or arguments are used to support judicial decisions that pertain to foreigners with disabilities? In order to answer these questions, this paper will utilize the simple, but effective method of content analysis in order to ‘tease’ out the various types or kinds of arguments used by legal actors. This article will end with discussing the role of ethnicity and ableism in the judgements of the Swiss Federal Court.