Friday, December 3, 2010

Enabling Asylum Seekers with Disabilities

Mindful of Hope Lewis's exhortation to include disability rights in human rights analyses, and in honor of the International Day of Persons with Disabilities, my post today reviews a recent study of asylum seekers with disabilities in Europe. This UNHCR research paper, written by Clara Straimer (pictured below right) and entitled Vulnerable or invisible? Asylum seekers with disabilities in Europe, echoes Hope's call to ensure that the disabled are included in the ostensibly universal scope of human rights obligations. Focusing on the Common European Asylum System but applicable to asylum determination processes worldwide, the paper seeks to "render visible the relevance of disability in the context of asylum."
Straimer's study begins and ends with the point the suffering of disabled asylum seekers is largely overlooked. The UN Refugee Convention provides no guidance on accommodating the needs of disabled asylum applicants, nor has the UN High Commissioner for Refugees promulgated any guidelines on a disability-sensitive interpretation of refugee law. Such an interpretation should view disability as structural oppression rather than an abnormality; in Straimer's words, as "disabling barriers imposed on persons with impairments by an exclusionary society." This social and human rights based approach to disability is exemplified by the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which focuses on recognizing the equality and capabilities of persons with disabilities and providing reasonable accommodation for disability-specific needs. It is surprising and concerning that UNHCR has yet to engage with the UNCRPD.
This legal lacuna belies the fact that disability may present a significant barrier to protection and can provoke and result from displacement. Disability may create multiple barriers to accessing asylum processes -- when combined with obstacles of language and citizenship, asylum seekers with disabilities may be prevented from even presenting their asylum claims. Even those asylum seekers with disabilities who access the process may face particular impediments to obtaining protection. For example, mental impairments may interact with the credibility determination process in a way that excludes the disabled from gaining asylum status. Moreover, asylum seekers with disabilities may have specific health care and accommodation needs that may go unnoticed during and after the asylum process. Finally, asylum law is insufficient in its recognition that disability may be a cause of displacement though discrimination, stigmatization, harassment, and neglect of persons with disabilities in their own communities is widespread.
Straimer walks the reader through the European Union's law and policy on disability and finds that they are in line with the UNCRPD's holistic understanding of disability. However, in practice, member states discriminate in the application of disability rights to nationals and non-nationals both at border and within borders. Moreover, Straimer's examination of the European asylum process directives highlights the need to ensure an individual assessment rather than a group-based understanding of disability. The study notes that while the Receptions Conditions Directive does a good job meeting this standard, the Asylum Procedures Directive and Qualification Directive do not. The former fails to recognize the diversity of disability (intellectual, physical) and the resultant principle that asylum seekers with disabilities don't need "special" treatment in all contexts. The latter fails to recognize disability as a particular social group. Both of these failures render barriers to asylum for the disabled invisible, in stark contrast to the visibility of gender and minority barriers to asylum.
Straimer then describes the qualitative research she performed to determine the reasons for this invisibility. The results and analysis are well worth reading further; I won't, however, describe these here in hope that the reader will be enticed into reading this ground-breaking study!

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