The Refugee Status of Persons with Disabilities 9789004427303, 9004427309

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The Refugee Status of Persons with Disabilities

International Refugee Law Series Editor-​in-​Chief Professor David James Cantor Editorial Board Professor Deborah Anker Professor Bhupinder Chimni Professor Geoff Gilbert Professor Guy S. Goodwin-​Gill Professor Liliana Jubilut Professor Susan Kneebone Professor Hélène Lambert Professor Bonaventure Rutinwa Dr. Volker Türk

volume 19

The titles published in this series are listed at brill.com/​irls

The Refugee Status of Persons with Disabilities By

Stephanie A. Motz

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Motz, Stephanie A, author. Title: The refugee status of persons with disabilities / by Stephanie A. Motz. Description: Leiden, The Netherlands : Koninklijke Brill NV, [2021] | Series: International refugee law series, 2213-3836 ; volume 19 | Includes bibliographical references and index. | Summary: “In many countries around the world persons with disabilities still suffer torture, ill-treatment and severe discrimination. Sometimes they are persecuted directly by the state, but frequently it is their family members, society or religious institutions that expose them to serious harm, while the state turns a blind eye to it. Persons with disabilities make up approximately 15% of the world population and an estimated 20% of the population of refugees and internally displaced persons. This book examines when persons with disabilities, who are being persecuted for reasons of their disability, are refugees and thus entitled to the protection of the 1951 Refugee Convention and the 1967 Protocol”– Provided by publisher. Identifiers: LCCN 2020030420 | ISBN 9789004427297 (hardback) | ISBN 9789004427303 (ebook) Subjects: LCSH: Refugees–Legal status, laws, etc. | People with disabilities–Legal status, laws, etc. | Convention Relating to the Status of Refugees (1951 July 28) | Convention Relating to the Status of Refugees (1951 July 28). Protocols, etc. (1967 January 31) Classification: LCC K3230.R45 M68 2021 | DDC 342.08/3–dc23 LC record available at https://lccn.loc.gov/2020030420

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 2213-​3 836 isbn 978-​9 0-​0 4-​4 2729-​7 (hardback) isbn 978-​9 0-​0 4-​4 2730-​3 (e-​book) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents Acknowledgment ix Abbreviations and Acronyms xi Table of Cases xii Table of Legislation xxvii I Introduction 1 ii

A Disability-​Sensitive Interpretation of the Refugee Definition 17 A Introduction 17 B The Nature of the Refugee Definition and Its Interpretation 19 1 The Flexibility of the Refugee Definition 19 2 Competent Authorities for the Interpretation of the Refugee Convention 22 3 Static and Evolutionary Approach to Interpretation 26 C Interpretation of the Refugee Definition according to the vclt 28 1 Applicability of the vclt (Art. 4 vclt) 28 2 One Rule of Interpretation and Good Faith (Art. 31(1) vclt) 29 3 Ordinary Meaning (Art. 31(1) vclt) 31 4 Context (Art. 31(1) vclt) 33 5 Object and Purpose (Art. 31(1) vclt) 36 6 Contemporaneous Context (Art. 31(2) vclt) 39 7 Subsequent Agreement (Art. 31(3)(a) vclt) 40 8 Subsequent Practice (Art. 31(3)(b) vclt) 43 9 Relevant Rules of International Law Applicable between the Parties (Art. 31(3)(c) vclt) 51 10 Supplementary Means of Interpretation (Art. 32 vclt) 56 11 Treaty Authenticated in Two or More Languages (Art. 33 vclt) 60 12 Conclusion 62 D An Evolutionary and Human Rights Approach to the Refugee Definition 63 1 An Evolutionary Interpretation of the Refugee Convention 63 2 The Human Rights Approach to the Refugee Definition 67 3 The Relevance of the crpd under the Human Rights Approach 76

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iii Serious Harm –​‘Being Persecuted’ 80 A Introduction 80 B Disability-​Specific Forms of Serious Harm 84 1 Introduction 84 2 Extrajudicial Killings and Ritual Murders 84 3 Forced Institutionalisation and Forced Treatment 88 4 Threats to the Physical and Moral Integrity and Security 93 5 Denial of Medical Treatment and Health Care 98 6 Denial of Work, an Adequate Standard of Living and Accessibility 107 7 Denial of Inclusive Education 115 8 Situations of War 119 9 Denial of Legal Capacity 120 10 Conclusion 121 C Disability-​Specific Approach to Serious Harm in Light of the vclt 122 1 Introduction 122 2 Interpretation according to Art. 31 vclt and Art. 32 vclt (Drafting History) 122 3 The Relevance of Human Rights to Persecution: Different Theories of the Human Rights Approach 128 4 Interpretation according to Art. 32 vclt (unhcr Practice and State Practice) 137 5 Interpretation according to Art. 32 vclt (International Human Rights Standards) 148 5.1 Introduction 148 5.2 Extrajudicial Killings and Ritual Murders 150 5.3 Forced Institutionalisation and Forced Treatment 150 5.4 Threats to the Physical and Moral Integrity and Security 163 5.5 Right to Health Care and Medical Treatment 168 5.6 Right to Work and to an Adequate Standard of Living and Accessibility 171 5.7 Right to Inclusive Education and Children’s Rights 176 5.8 Situations of War 178 5.9 Denials of Legal Capacity 180 6 Conclusion 182 D Conclusion on Serious Harm 182

Contents

vii

iv Failure of State Protection 189 A Introduction 189 B The Level of State Protection 191 1 Introduction 191 2 The Level of State Protection in Cases with Disabilities 192 3 The Level of State Protection and a Disability-​Specific Approach 201 3.1 Introduction 201 3.2 Interpretation according to Arts. 31 and 32 vclt (Drafting History) 202 3.3 Interpretation according to Art. 32 vclt (unhcr Practice and State Practice) 207 3.4 Interpretation according to Art. 32 vclt (International Human Rights Law) 216 3.5 Conclusion on Disability-​Specific Interpretation 230 4 Conclusion on Sufficiency of State Protection 230 C Internal Protection Alternative 232 1 Introduction 232 2 Reasonableness of an Internal Protection Alternative for Persons with Disabilities 234 3 Conclusion on Internal Protection Alternative 237 D Conclusion on the Level of State Protection 237 v

Causal Nexus –​‘for Reasons of’ 240 A Introduction 240 B Causal Nexus and Persecutory Intent 243 1 Introduction 243 2 Persecutory Intent Approach in Cases with Disabilities 244 3 Persecutory Intent and a Disability-​Specific Approach 252 4 Conclusion on Persecutory Intent 262 C Causal Nexus, Persecutory Effect and Omissions 263 1 Introduction 263 2 The Bifurcated Approach 263 3 Inability to Fulfil, Omissions and Discriminatory Effect in Cases of Persons with Disabilities 266 4 Inability to Fulfil, Omissions, Discriminatory Effect and a Disability-​Specific Approach 277 5 Conclusion on Omissions and Discriminatory Effect 288

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D Mixed Causes 290 1 Introduction 290 2 Mixed Causes in Cases of Persons with Disabilities 291 3 Mixed Causes and a Disability-​Specific Approach 294 4 Conclusion on Mixed Causes 301 E Conclusion on Causal Link 302 vi Convention Ground –​‘Particular Social Group’ 304 A Introduction 304 B Persons with Disabilities and Membership of a ‘Particular Social Group’ 305 1 Introduction 305 2 ‘Particular Social Group’ in Cases with Disabilities 306 3 ‘Particular Social Group’ and a Disability-​Specific Approach 316 C Conclusion on Persons with Disabilities as a ‘Particular Social Group’ 326 vii Conclusion 328 A Summary 328 B Outlook 334 Bibliography 339 Index 361

Acknowledgment First and foremost I  would like to thank Professor Martina Caroni who has given me her full support and critical guidance throughout this Ph.D. Above all, I thank her for giving me both the desired intellectual space and freedom, as well as valuable advice and the eventually welcome time pressure, while at the same time shielding me off from professional distractions when serenity was vital. I would also like to thank Professor Michelle Foster for providing me with the initial spark for this thesis on the refugee status of persons with disabilities. I am further grateful to the Swiss National Science Foundation for their generous financial support, which enabled my doc.mobility research stays at the Universities of Michigan and Oxford. The University of Michigan provided me with an exceptionally inspiring academic environment and I especially thank Professor Jim Hathaway for his generous time and critical comments in discussions about the fundamentals of this thesis. I would also like to thank Professors Marshall Goldberg and Sherman Clark for inspiring me with their fresh approaches to storytelling in legal writing and the ethical role of lawyers and the law, which enriched my drafting of this thesis. I further thank the Refugee Studies Centre at the University of Oxford for providing me with a stimulating inter-​disciplinary environment in a picturesque setting and particularly Professors Cathryn Costello and Guy Goodwin-​Gill for their time and critical inputs in discussions about this thesis. I am eternally grateful to the disability rights trainers Abner Manlapaz and Zara Todd for inspiring me with their unabated optimism regarding the disability rights movement and for bringing disability rights to life. They are living proof that this world can be a better place for everyone, irrespective of abilities and impairments. Their attitude of respect for the dignity and human rights of every person has accompanied me ever since. I especially thank Nesa Zimmermann for being the best dissta (dissertation sister) imaginable, with infinite patience for boundless discussions of theoretical concepts, structural disasters, identity crises and general doctoral qualms. Very special thanks also go to Angela Hefti for implementing with me the possibly most rewarding Ph.D. plan ever and for her relentlessly critical review of parts of this thesis. I further thank Chantal Staehelin for her expedient eagle eyed-​lecture of this script and Nina Fargahi for her unwavering friendship also during the most isolated periods of this journey. I would also like to thank Sararard Arquint and Olivier Peter for holding my position during my law firm absences. I thank my friends on the island of Lesvos for the social distraction

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Acknowledgment

during my otherwise solitary Ph.D. retreats, and Andri Hinnen for being there and for braving the cold Lesvos winter with me for the first time. Finally, I am grateful to the atmosphere of the woods of the Zurich hills, which provided the necessary calm during the intense final stretch of this journey.

Abbreviations and Acronyms aata bia cat

Administrative Appeals Tribunal of Australia Board of Immigration Appeals (United States) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment cedaw Convention on the Elimination of All Forms of Discrimination Against Women cescr Committee on Economic, Social and Cultural Rights cerd International Convention on the Elimination of All Forms of Racial Discrimination cidtp Cruel, inhuman or degrading treatment or punishment cjeu Court of Justice of the European Union crc Convention on the Rights of the Child crpd Convention on the Rights of Persons with Disabilities echr European Convention on Human Rights ECtHR European Court of Human Rights ecosoc United Nations Economic and Social Council EU European Union fac Federal Administrative Court (Switzerland) IAComHR Inter-​American Commission on Human Rights iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights ins Immigration and Naturalization Service (United States) ipt International Protection Tribunal (New Zealand) IRBss Immigration and Refugee Board (Canada) ohchr Office of the United Nations High Commissioner for Human Rights ptsd Post-​traumatic stress disorder rrt Refugee Review Tribunal (Australia) rsaa Refugee Status Appeals Authority (New Zealand) sshd Secretary of State for the Home Department (United Kingdom) udhr Universal Declaration of Human Rights UK United Kingdom UN United Nations undesa United Nations Department for Economic and Social Affairs unhcr United Nations High Commissioner for Human Rights US United States of America vclt Vienna Convention on the Law of Treaties who World Health Organization

Table of Cases A v Minister for Immigration and Ethnic Affairs (1997) 190 clr 225 (High Court of Australia) aa (Exclusion Clause) Palestine [2005] ukiat 00104 (uk iat) ab ( Jamaica) cg [2007] ukait 00018 (uk iat) Abbar v Canada (Minister of Citizenship and Immigration) [2017] fc 1101 (Federal Court of Canada) Abebe v Commonwealth of Australia (1999) 197 clr 510 (High Court of Australia) ac (Egypt) [2011] nzipt 800015 (New Zealand ipt) ac (Russia) (2012) [2012] nzipt 800151 (New Zealand IPT) Adjibi v Canada (Minister of Citizenship and Immigration) [2002] 219 ftr 54 (Federal Court of Canada) ae (Hungary) [2012] nzipt 800325 (New Zealand ipt) Aegean Sea Continental Shelf Case (Greece v Turkey) ( Judgment) icj Reports 1978, 3 (icj) af (Ghana) [2015] nzipt 800796 (New Zealand ipt) AHK16 v Minister for Immigration & Anor [2018] fcafc 106 (Federal Court of Australia) Akram v SSHD  2018] UKAITUR PA058242017 (Upper Tribunal (Immigration and Asylum Chamber)) Al Adam v Saudi Arabia un Doc crpd/​c /​2 0/​d /​3 8/​2 016, 20 September 2018 (crpd Committee) Aladenika et al v Canada (Minister of Citizenship and Immigration) [2018] fc 528 (Federal Court of Canada) Al‑Adsani v the United Kingdom app no  35763/​ 97, 21 November 2001 (ECtHR (gc)) Al-​Amidi v Minister for Immigration & Multicultural Affairs [2000] fca 1081 (Federal Court of Australia) ALG15 v Minister for Immigration & Anor [2016] fcca 2963 (Federal Circuit Court of Australia) Al-​Sirri v Secretary of State for the Home Department [2012] uksc 54 (UK Supreme Court) Ampong v Canada (Citizenship and Immigration) 2010 fc 35 (Federal Court of Canada) Andrea Mortlock v United States Case 12534, Report No 63/​08 (IAComHR, 25 July 2008) Applicant A v Minister for Immigration and Ethnic Affairs High Court of Australia [1997] hca 4

Table of Cases

xiii

Applicant N 403 of 2000 v Minister for Immigration & Multicultural Affairs [2000] fca 1088 (Federal Court of Australia) Application of cerd (Georgia v Russian Federation) (Preliminary Objections) icj Reports 2011, 70 (icj) Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) ICJ Reports 1991, 53 (ICJ) AS v Switzerland app no 39350/​13, 30 June 2015 (ECtHR) Aswat v United Kingdom app no 17299/12, 16 April 2013 (ECtHR) Attorney-​General v Zaoui and Inspector-​General of Intelligence and Security [2006] 1 nzlr 289 (Supreme Court of New Zealand) Autism-​Europe v France Complaint No. 13/​2002, 4 November 2003 (European Committee of Social Rights) ax ( family planning scheme) China cg [2012] ukut 00097 (iac) (UK Upper Tribunal (Immigration and Asylum Chamber)) Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland C-​175/​08, C-​176/​08, C-​178/​08 and C-​179/​ 08, judgment of 2 March 2010 (cjeu) AZACP v Minister for Immigration & Anor (2013) [2013] fcca 351 (Federal Circuit Court of Australia) Bundesrepublik Deutschland v B and D Cases C-57/09 and C-101/09 (CJUE) ba (China) [2013] nzipt 800429 (New Zealand ipt) Babar Ahmad and Others v United Kingdom (2010) app nos 24027/​07, 11949/​08 and 36742/​08 (ECtHR) Bagdanavicius & Anor, R (On the Application of ) v Secretary of State for the Home Department [2003] ewca Civ 1605 (UK Court of Appeal) Banković v Belgium and others app no 52207/​99, decision of 12 December 2001 (ECtHR) BB et al v SSHD [2017] UKAITUR HU038952015 (UK Upper Tribunal (Immigration and Asylum Chamber)) Bensaid v United Kingdom app no 44599/ 98, 6 May 2001 (ECtHR) bg (Fiji) *Precedent* [2012] nzipt 800091 (New Zealand ipt) Boer-​Sedano v Gonzales (2005) 418 F.3d 1082, 1090–​1091 (US Court of Appeals for the Ninth Circuit) BOG (Re) No. vao-​03441, [2001] crdd No. 121, 16 July 2001 (Refugee Protection Division (Canada)) Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, ( Judgment) ICJ Reports 1988, 69 (ICJ) Brown v Board of Education 347 U.S. 483 (1954) (US Supreme Court) Bureš v The Czech Republic app no 37679/08, 18 October 2012 (ECtHR) Canada (Attorney General) v Ward [1993] 2 scr 689 (Supreme Court of Canada)

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Canada v Patel 2008 fc 747 (Federal Court of Canada) Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo), Merits ( Judgment) ICJ Reports 2010, 639 (ICJ) Case Concerning Armed Activities on Territory of Congo (Democratic Republic of Congo v Uganda) ( Judgment) icj Reports 2005, 168 (icj) Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) ICJ Reports 1999, 1045 (ICJ) Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) ( Judgment) icj Reports 2009, 213 (icj) Centre public d’action sociale d’Ottignies-​Louvain-​La-​Neuve v Moussa Abdida C-​ 562/​13, 18 December 2014 (cjeu) CEO15 & Ors v Minister for Immigration & Anor [2016] fcca 2795 (Federal Circuit Court of Australia) Certain Expenses of the United Nations (Advisory Opinion) ICJ Reports 1962, 151 (ICJ) Chan v Canada (Minister for Employment and Immigration) [1995] 3 scr 593 (Supreme Court of Canada) Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 alr 553 (High Court of Australia) Chen v Holder (2010) 604 F.3d 324 (US Court of Appeals for the Seventh Circuit) Cheung v Canada (Minister of Employment and Immigration) [1993] 2 fc 314 Chile –​Price Band System and Safeguard Measures Relating to Certain Agricultural Products (2002) wt/​d s207/​a b/​r (wto Appellate Body) ck and Ors v Supreme Court of Republic Slovenia C-​ 578/​ 16, 16 February 2017 (cjeu) co (South Africa) [2019] nzipt 801569 (New Zealand ipt) Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (IMCO) (Advisory Opinion) ICJ Rep 1960, 150 (ICJ) Covarrubias v Canada 2006 fca 365 (Federal Court of Appeal (Canada)) D v United Kingdom app no 30240/​96 (ECtHR, 2 May 1997) Daniel Martin Butler v Attorney General and Refugee Status Appeals Authority (1997) CA 181/​97 (New Zealand Court of Appeal) De Baez v Canada 2003 fct 785 (Federal Court of Canada) Demir and Baykara v Turkey app no 34503/97, 12 November 2008 (ECtHR (GC)) Demirkaya v Secretary of State for the Home Department [1999] Imm ar 498 (UK Court of Appeal) Dena Hernandez v Canada (Citizenship and Immigration) 2010 fc 178 (Federal Court of Canada) Deri v Canada (Citizenship and Immigration) 2015 fc 1042 (Federal Court of Canada)

Table of Cases

xv

Disha v Gonzales (2006) 207 Fed. Appx. 694 (US Court of Appeals for the Seventh Circuit) ds (Iran) [2016] nzipt 800788 (New Zealand ipt) EA v SSHD [2018] UKAITUR PA085182016 (UK Upper Tribunal (Immigration and Asylum Chamber)) ec –​Customs Classification of Frozen Boneless Chicken Cuts (2005) wt/​d s269/​ ab/​r (wto Appellate Body) EMS v The Minister for Justice Equality and Law Reform [2004] iehc 398 (High Court of Ireland) Erduran v Minister for Immigration & Multicultural Affairs [2002] fca 814 (Federal Court of Australia) European Roma Rights Centre & Ors, R (on the application of ) v Immigration Officer at Prague Airport & Anor [2004] ukhl 55 (UK House of Lords) EZA17 v Minister for Home Affairs [2018] fca 713 (Federal Court of Australia) Fei Mei Cheng v Attorney General of US (2010) 623 F.3d 175 (US Court of Appeals for the Third Circuit) Ferreira v Canada (Citizenship and Immigration) (2014) 2014 fc 756 (Federal Court of Canada) Fogarty v the United Kingdom app no 37112/​97, 21 November 2001 (ECtHR) Gabčikovo-Nagymaros Project (Hungary v Slovakia) ( Judgment) ICJ Reports 1997, 7 (ICJ) Garcia v Canada (Minister of Citizenship and Immigration) [2007] 4 fcr 385 (Federal Court of Canada) Golder v the United Kingdom app. no. 4451/​70, 21 February 1975 (ECtHR) Gondal v Canada (2012) 2012 fc 1384 (Federal Court of Canada) GPE (Re) No. U96-​02717, [1997] crdd No. 215, 16 September 1997 (Refugee Protection Division (Canada)) Gustavo Tecun-​Florian v INS (2000) No. 98-​70682 (United States Court of Appeals for the Ninth Circuit) H (gy) (Re) Nos. T94-​05654 and T94-​05655, [1995] crdd No. 70 (Refugee Protection Division (Canada)) Hamilton v Jamaica UN Doc ccpr/​c /​6 6/​d /​6 16/​1 995 (18 July 1999) hj (Iran) and ht (Cameroon) v Secretary of State for the Home Department [2011] 1 ac 596 (uk Supreme Court) HM v Sweden un Doc crpd/​c /​7 /​d /​3 /​2 011 (crpd Committee) Horvath v Secretary of State for the Home Department [2000] inlr 15 (UK Court of Appeal) Horvath v Secretary of State for the Home Department [2001] 1 ac 489 (UK House of Lords) Hoxha and B v Secretary of State for the Home Department [2003] 1 wlr 241 (UK Court of Appeal)

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Table of Cases

Immigration Appeal Board Decision 79–​1017 (24 August 1979) (Immigration Appeal Board of Canada) In Re D-​V-​Interim Decision 3252, 25 May 1993 (US Board of Immigration Appeals) In re R-​A-​[1999] 22 I & N Dec. 906 (US Board of Immigration Appeals) INS v Cardoza-​Fonseca (1987) 480 US 421 (US Supreme Court) INS v Elias-​Zacarias 502 US 478 (1992) (US Supreme Court) IPJ (Re) No. A99-​01121, [2000] crdd No. 141, 11 September 2000 (Refugee Protection Division (Canada)) Islam v SSHD; R v IAT, ex p Shah [1999] 2 ac 629 (UK House of Lords) Januzi (fc) (Appellant) v Secretary of State for the Home Department (Respondent); Hamid (fc) (Appellant) v Secretary of State for the Home Department (Respondent); Gaafar (fc) (Appellant) v Secretary of State for the Home Department (Respondent); Mohammed (fc) (Appellant) v Secretary of State for the Home Department (Respondent) (Consolidated Appeals) [2006] ukhl 5 (UK House of Lords) Jean-​Pierre v Attorney General (2006) 192 Fed. Appx. 92, 95 (US Court of Appeals for the Third Circuit) Jeyaseelan v Canada (Minister of Citizenship and Immigration) 2002 fct 356 (Federal Court of Canada) K and Fornah v Secretary of State for the Home Department [2007] 1 AC 412 (HL) (UK House of Lords) K v Bundesasylamt C-245/ 11, judgment of 6 November 2012 (CJEU) Kadri v Mukasey (2008) 543 F.3d 16 (US Court of Appeals for the First Circuit) Kagema v Secretary of State for the Home Department [1997] Imm ar 137 (UK Court of Appeal) Kalubi v Ashcroft (2004) 364 F.3d 1134 (US Court of Appeals for the Ninth Circuit) Katwaru v Canada (Minister of Citizenship and Immigration) 2007 fc 612 (Federal Court of Canada) Keenan v United Kingdom app no 27229/95, 3 April 2001 (ECtHR) Kholyavskiy v Mukasey No. 07-​1020, 28 August 2008 (US Court of Appeals for the Seventh Circuit) Kinuthia v Secretary of State for the Home Department [2001] ewca Civ 2100 (UK Court of Appeal) Korea –​Measures Affecting Imports of Fresh, Chilled and Frozen Beef (2000) wt/​ ds161/​r , wt/​d s161/​a b/​r , dsr 2001:I (wto Appellate Body) Kuthyar v Minister for Immigration & Multicultural Affairs [2000] fca 110 (Federal Court of Australia) Kuttner v Austria app no 7997/08, 16 July 2015 (ECtHR) Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Preliminary Objections ( Judgment) ICJ Reports 1998, 275 (ICJ)

Table of Cases

xvii

Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) ( Judgment) ICJ Reports 1992, 351 (ICJ) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) ICJ Reports 1971, 16 (ICJ) Levitskaya v Immigration and Naturalization Service (2002) 43 Fed. Appx. 38 (US Court of Appeals for the Ninth Circuit) Li v Attorney General (2005) 400 F.3d 157 (US Court of Appeals for the Third Circuit) Liaqat v Canada [2005] fc 893 (Federal Court of Canada) Lidan Ding v Ashcroft (2004) 387 F.3d 1131 (US Court of Appeals for the Ninth Circuit) lla Konstantinova Pitcherskaia v Immigration and Naturalization Service (1997) 95–70887 (US Court of Appeals for the Ninth Circuit) Loizidou v Turkey (Merits) app no 15318/​89, 18 December 1996 (ECtHR (gc)) Louis v Canada 2012 fc 1055 (Federal Court of Canada) Lukwago v Ashcroft (2003) 329 F.3d 157 (United States Court of Appeals for the Third Circuit) Makatengkeng v Gonzalez (US Court of Appeals for the Eigth Circuit) Manani v Filip (2009) 552 F.3d 894, 903 (US Court of Appeals for the Eighth Circuit) Marckx v Belgium app no 6833/74, 13 June 1979 (ECtHR) Mare v Canada 2001 fct 450 (Federal Court of Canada) Marie-​Louise Jungelin v Sweden UN Doc crpd/​c/​12/​d/​5/​2011, 14 Novemer 2014 (crpd Committee) Marroquin-Ochoma v Holder (2009) 574 F.3d 574 (US Court of Appeals for the Eigth Circuit) Matter of _​_​(ij 20 December 2000), reported in 78 Interpreter Releases 233, 15 January 2001 (US) Matter of _​_​US A71-​498–​940, (ij 31 October 1995), reported in 73 Interpreter Releases 901, 8 July 1996 (US) Matter of Acosta (1985) I. & N. Dec 211 (US Board of Immigration Appeals) Matter of A-​R-​C-​G-​ et al, Respondents (2014) 26 I & N Dec. 388 (US Board of Immigration Appeals) Matter of Faronda-​Blandon A74-​979–​517 (ij 15 June 2001) (US) Matter of J-​M-​31 May 2007 reported in 12–​18 Bender’s Immigr. Bull. 3 (2007) (US Board of Immigration Appeals) Matter of J-​R-​R-​A (2015) 26 I & N Dec. 609 (bia 2015) (US Board of Immigration Appeals) Matter of Ricardo de Santiago-​Carrillo 6 June 2000 (US Board of Immigration Appeals)

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Matter of T-​Z-​ (2007) 24 I. & N. Dec. 163, (US Board of Immigration Appeals) McElhinney v Ireland app no 31253/​96, 21 November 2001 (ECtHR (gc)) md (Women) Ivory Coast cg [2010] ukut 215 (iac) (UK Upper Tribunal (Immigration and Asylum Chamber)) Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 ALR 192 (Federal Court of Australia) Mental Disability Advocacy Center (MDAC) v Bulgaria Complaint No. 41/2007, 3 June 2008 (European Committee of Social Rights) Mikhailevitch v Immigration and Naturalization Service (1998) 146 F. 3d 384 (US Court of Appeals for the Sixth Circuit) Minister for Citizenship and Immigration v B344 2013 FC 447 (Federal Court of Appeal (Canada)) Minister for Citizenship and Immigration v B377 2013 FC 320 (Federal Court of Appeal (Canada)) Minister for Immigration and Citizenship v SZCWF [2007] fcafc 155 (Federal Court of Australia) Minister for Immigration and Multicultural Affairs v Applicant S [2002] fcafc 244 (High Court of Australia) Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14 (High Court of Australia) Minister for Immigration and Multicultural Affairs v Respondents S152/​2003 (2004) 205 alr 487 (High Court of Australia) Minister for Immigration and Multicultural Affairs v Singh [2002] hca 7 (High Court of Australia) Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] fca 334 (Federal Court of Australia) Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] hca 53 (High Court of Australia) Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/​2003 [2004] hca 18 (High Court of Australia) Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1 (High Court of Australia) MJ (Angola) v Secretary of State for the Home Department [2010] ewca Civ 557 (UK Court of Appeal) Mkhonta v Canada (Public Safety and Emergency Preparedness) 2015 fc 991 (Federal Court of Canada) MM (Iran) v Secretary of State for the Home Department [2009] ewca Civ 1167 (UK Court of Appeal) Mohamed M’Bodj v État belge C‑542/​13, 18 December 2014 (cjeu) MP v Secretary of State for the Home Department C‑353/​16, 24 April 2018 (cjeu) Mr F v Austria UN Doc crpd/​c /​1 4/​d /​2 1/​2 014, 9 September 2015 (crpd Committee)

Table of Cases

xix

Mwayuma et al v Canada (Minister of Citizenship and Immigration) [2019] fc 1573 (Federal Court of Canada) MZAKT v Minister for Immigration & Anor (2015) [2015] fcca 3225 (Federal Circuit Court of Australia) N v United Kingdom app no 26565/05, 27 May 2008 (ECtHR (GC)) NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] hca 29 (High Court of Australia) NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] fca 1554 (Federal Court of Australia) Nara v Canada (Minister for Citizenship and Immigration) 2012 fc 364 (Federal Court of Canada) Naseem v Canada (Minister of Citizenship and Immigration) (2002) imm-​5 655–​ 01 (Federal Court of Canada) Ndayshimiye v Attorney General (2009) 557 F 3d 124 (US Court of Appeals for the Third Circuit) Ndom v Ashcroft (2004) 384 F.3d 743 (US Court of Appeals for the Ninth Circuit) Nebie v Canada (Citizenship and Immigration) 2015 fc 701 (Federal Court of Canada) Negusie v Holder (2009) 555 US 511 (US Supreme Court) NK v Canada (Solicitor General) [1995] f.c.j. No. 889 (Federal Court of Canada) Noble v Australia UN Doc crpd/​c /​1 6/​d /​7 /​2 012, 2 September 2016 (crpd Committee) Noume (Souad) v SSHD [2001] inlr 526 (UK Court of Appeal) Nyusti and Péter Takács v Hungary UN Doc crpd/​c /​9 /​d /​1 /​2 010, 16 April 2013 (crpd Committee) Öcalan v Turkey app no 46221/99, 12 May 2005 (ECtHR (GC)) Oil Platforms (Iran v US) Merits ( Judgment) ICJ Reports 2003, 161 (ICJ) Okado v Attorney General [2005] No. 04–3698 (US Court of Appeals for the Third Circuit) Olga Denissenko v Christine Haskett and Minister for Immigration and Ethnic Affairs [1996] fca 1513 (Federal Court of Australia) Omar Antonio Chalita Gonzalez v The Minister of Citizenship and Immigration 2011 fc 1059 (Federal Court of Canada) Omekam v Canada (Minister of Citizenship and Immigration) 2006 fc 331 (Federal Court of Canada) OOJ and Others v Sweden UN Doc crpd/​c /​1 8/​d /​2 8/​2 015, 18 August 2017 (crpd Committee) OPK (Re) No. U95-​04575, [1996] crdd No. 88, 24 May 1996 (Refugee Protection Division (Canada)) Paposhvili v Belgium app no 41738/ 10, 17 April 2014 (ECtHR) Paposhvili v Belgium app no 41738/ 1, 13 December 2016 (ECtHR (GC))

xx 

Table of Cases

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 fcr 28 (Federal Court of Australia) Paredes v Attorney General (2007) 219 Fed. Appx. 879 (US Court of Appeals for the Eleventh Circuit) Pathmanathan v Canada (Minister of Citizenship and Immigration) (1998) imm-​ 4869–​9 7 (Federal Court of Canada) Pretty v United Kingdom app no 2346/02, 27 July 2002 (ECtHR) Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 scr 982 (Supreme Court of Canada) R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2012] uksc 12 (UK Supreme Court) R v Asfaw [2008] 2 wlr 1178 (UK House of Lords) R v Secretary of State for the Home Department, ex p Adan [1998] Imm ar 338 (UK House of Lords) R v Secretary of State for the Home Department, ex p Adan [1999] 3 wlr 1274 (UK Court of Appeal) R v Secretary of State for the Home Department, ex p Adan [1999] 1 ac 293 (UK House of Lords) R v Secretary of the State for the Home Department, ex p Sivakumar [2003] UKHL 14 (UK House of Lords) R v Special Adjudicator, ex p Hoxha [2005] wlr 1063 (UK House of Lords) R v Uxbridge Magistrates Court & Anor, ex p Adimi [1999] ewhc Admin 765 (High Court of England and Wales) Raffington v INS (2003) F.3d 720 (US Court of Appeals for the Eighth Circuit) Ram v Minister for Immigration and Ethnic Affairs [1995] fca 1333 (Federal Court of Australia) Ranganathan v Canada (Minister of Citizenship and Immigration) [2001] 2 fc 164 (Federal Court of Canada) Rantsev v Cyprus and Russia app no 25965/​04, 7 January 2010 (ECtHR) Ravichandran [1995] Imm ar 96 (UK Court of Appeal) Reference 1510994 (Zambian with severe disabilities) aata Migration and Refugee Division (Australia) [2018] aata 3026, 20 June 2018 Reference 1610842 (Mauritius –​mental health) aata Migration and Refugee Division (Australia) [2019] aata 1418, 12 June 2019 Reference 1728413 (Zimbabwean with disability) aata Migration and Refugee Division (Australia) [2018] aata 4665, 18 October 2018 Reference N03/​45504 1 July 2003 (rrt (Australia)) Reference N94/​04178 10 June 1994 (rrt (Australia)) Reference N98/​21471 21 September 1998 (rrt (Australia)) Reference V5/​03396 29 November 1995 (rrt (Australia)) Reference V94/​02084 23 February 1996 (rrt (Australia))

Table of Cases

xxi

Reference V95/​03256 9 October 1995 (rrt (Australia)) Refugee Appeal No 1039/ 93 Re HBS and LBY [1995] NZRSAA 52 (New Zealand RSAA) Refugee Appeal No 2039/ 93 Re MN [1996] NZRSAA 43 (New Zealand RSAA) Refugee Appeal No 71427/​99 [2000] nzar 545 (New Zealand rsaa) Refugee Appeal No 71462/​99 [2000] inlr 311 (New Zealand rsaa) Refugee Appeal No 71684/ 99 [1999] NZRSAA 296 (New Zealand RSAA) Refugee Appeal No 72635/​01 [2002] nzrsaa 344 (New Zealand rsaa) Refugee Appeal No 74665 [2005] nzar 60 (New Zealand rsaa) Refugee Appeal No 75221 [2005] nzrsaa 289 (New Zealand rsaa) Refugee Appeal No 75829 [2007] nzrsaa 13 (New Zealand rsaa) Refugee Appeal No 76015 [2007] nzrsaa 96 (New Zealand rsaa) Refugee Appeal No 76044 [2008] nzar 719 (New Zealand rsaa) Refugee Appeal No 76226 and 76227 [2009] nzrsaa 3 (New Zealand rsaa) Refugee Appeal No 76380 [2010] nzrsaa 88 (New Zealand rsaa) Refugee Appeal No 76512 [2010] nzrsaa 73 (New Zealand rsaa) RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 (UK AIT) Rodrigues Morales v Attorney-General (2007) 488 F.3d 884 (US Court of Appeals for the Eleventh Circuit) Rodriguez Diaz v Canada (Minister of Citizenship and Immigration) [2009] 3 fcr 395, 2008 fc 1243 (Federal Court of Canada) Rodriguez v Canada (Minister of Citizenship and Immigration) [1996] fcj 283 (Federal Court of Canada) RRT Case No 1008207 [2010] rrta 1117 (rrt (Australia)) RRT Case No 1219395 (Ghanaian with mental health problems) [2013] rrta 633 (rrt (Australia)) RRT Case No 1400685 (Coptic Egyptian woman with cognitive, physical and psychiatric disabilities) [2015] rrta 265 (rrt (Australia)) RRT Case No 1401757 (Filipina single mother with child with disabilities) [2014] rrta 652 (rrt (Australia)) RRT Case No 1404941 (Vietnamese with limited use of left arm) (2014) [2014] rrta 865 (rrt (Australia)) RRT Case No 1406930 (Lebanese woman with physical and intellectual disabilities) [2014] rrta 760 (rrt (Australia)) RRT Case No 071972350 [2008] rrta 220 (rrt (Australia)) RS & Ors (Zimbabwe – AIDS) Zimbabwe CG [2010] UKUT 363 (UK Upper Tribunal (Immigration and Asylum Chamber)) RT (Zimbabwe) v Secretary of State for the Home Department [2013] 1 AC 152 (UK Supreme Court) Sadiq v Canada (Minister of Citizenship and Immigration) [2020] fc 267 (Federal Court of Canada)

xxii 

Table of Cases

Saldivar Soto v Canada (Citizenship and Immigration) 2009 fc 278 (Federal Court of Canada) Salem Subramaniam & Ors v Minister for Immigration & Multicultural Affairs [1998] fca 483 (Federal Court of Australia) Salibian v Canada (Minister of Employment and Immigration) (1990) 11 Imm lr (2d) 165 (Federal Court of Canada) Sarhan v Holder (2011) 658 F.3d 649 (US Court of Appeals for the Seventh Circuit) Sarrazola v Minister for Immigration & Multicultural Affairs (1999) 107 f.c.r. 184 (Federal Court of Australia) SB (PSG, Protection Regulations, Reg 6) Moldova CG [2008] ukait 00002 (UK AIT) SC v Brazil un Doc crpd/​c /​1 2/​d /​1 0/​2 013, 28 October 2014 (crpd Committee) Secretary of State for the Home Department (Appellant) v AH (Sudan) and Others (FC) (Respondents) [2007] ukhl 49 (UK House of Lords) Sepet and Bulbul v Secretary of State for the Home Department [2003] 1 wlr 856 (UK House of Lords) Sepet and Bulbul v Secretary of State for the Home Department [2001] ewca Civ 681 (UK Court of Appeal) Shaikh v Holder (2012) 702 F.3d 897 (US Court of Appeals for the Seventh Circuit) Shallow v Canada (Minister of Citizenship and Immigration) [2019] fc 911 (Federal Court of Canada) SHH v United Kingdom app no 60367/10, 29 January 2013 (ECtHR) Shoafera v Immigration and Naturalization Service (2000) 228 F.3d 1070 (US Court of Appeals for the 9th Circuit) Siliadin v France app no 73316/​01, 26 October 2005 (ECtHR) Simioni v Holder (2012) 476 Fed. Appx. 920 (US Court of Appeals for the Second Circuit) SJ v Belgium ( formerly known as Josef v Belgium) app no 70055/10, 27 February 2014 (ECtHR) Soering v United Kingdom app no 14038/88, 7 July 1989 (ECtHR) Sørensen and Rasmussen v Denmark app nos 52562/​99 and 52620/​99, 11 January 2006 (ECtHR (gc)) Soto v Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1033 (Federal Court of Canada) Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) ( Judgment) 2002 ICJ Reports 625 (ICJ) Spooner v Canada (Citizenship and Immigration) 2014 fc 870 (Federal Court of Canada)

Table of Cases

xxiii

SSHD v Ahmed [2017] UKAITUR HU000302015 (UK Upper Tribunal (Immigration and Asylum Chamber)) Stephenson v Canada (2011) 2011 fc 932 (Federal Court of Canada) Suarez v SSHD [2002] ewca Civ 722 (UK Court of Appeal) Subermani Gounder v Minister for Immigration & Multicultural Affairs [1998] fca 1080 (Federal Court of Australia) Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 s.c.r. 3 (Supreme Court of Canada) Svazas v Secretary of State for the Home Department [2002] ewca Civ 74 (UK Court of Appeal) SZAIZ v Minister for Immigration [2004] fmca 22 (Raphael J) (Federal Magistrates Court of Australia) SZAOG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] fcafc 316 (Federal Court of Australia) SZATV v Minister for Immigration and Citizenship [2007] hca 40 (High Court of Australia) SZDWR v Minister For Immigration & Multicultural & Indigenous Affairs [2006] fcafc 36 (Federal Court of Australia) SZGUW v Minister for Immigration & Citizenship [2008] fca 91 (Federal Court of Australia) SZGUW v Minister for Immigration and Citizenship [2009] fca 321 (Federal Court of Australia) SZHCU v Minister for Immigration & Anor [2006] fmca 1146 (Federal Magistrates Court of Australia) SZTEQ v Minister for Immigration and Border Protection [2015] fcafc 39 (Federal Court of Australia) SZUFQ & Anor v Minister for Immigration & Anor (2015) [2015] fcca 3406 (Federal Circuit Court of Australia) Tchoukhrova et al v Gonzalez No. 03-​71129, 21 April 2005 (US Court of Appeals for the Ninth Circuit) The Mavrommatis Palestine Concessions (Greece v Britain) (Judgment) 1924 P.C.I.J. (ser. B) No. 3, 30 August 1924 (PCIJ) Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 fc 589 (Federal Court of Canada) tnl (Re) T95-​07647, [1997] crdd No. 251 (irb (Canada)) Toonen v Australia ccpr/​c /​5 0/​d /​4 88/​1 992, 4 April 1994 (HRCttee) Ukashu Nuru v Gonzales (2005) No. 03-71391 (US Court of Appeals for the Ninth Circuit) Ullah, R (oao) v Special Adjudicator [2004] 3 All er 785 (UK House of Lords) V95/​03148 [1996] rrta 597 (rrt (Australia))

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Table of Cases

Valdiviezo-Galdamez v Attorney General (2007) 502 F.3d 285 (US Court of Appeals for the Third Circuit) Velihaj v Attorney General (2009) 336 Fed. Appx. 193 (US Court of Appeals for the Third Circuit) Vicente-​Elias v Mukasey (2008) 532 F.3d 1086 (US Court of Appeals for the Tenth Circuit) Vincent v Holder (2011) 632 F.3d 351 (US Court of Appeals for the Sixth Circuit) WAKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] fcafc 32 (Federal Court of Australia) Wang v Minister for Immigration & Multicultural Affairs [2000] fca 1599 (Federal Court of Australia) Wemhoff v Germany app no 2122/64, 25 April 1968 (ECtHR) X (Re) (Brazilian woman with disabilities and domestic violence victim) (2014) tb4-​0 8626 (irb (Canada)) X (Re) (Burkinabe with disability) (2002) ma1-​0 8719 (irb (Canada)) X (Re) (Chilean woman with visual impairment and guide dog) (2001) va0-​0 3441 (irb (Canada)) X (Re) (Colombian man with hearing impairment and mute) (2005) ta3-​2 2761 (irb (Canada)) X (Re) (Czech man with schizophrenia of the paranoid type) (2010) ta8-​0 1636 (irb (Canada)) X (Re) (Ethiopian woman with mental health issues) [2007] irb (Canada) ta5-​ 11242 X (Re) (gay man with hiv from Swaziland) (2009) ta6-​1 6825 (irb (Canada)) X (Re) (Guyanese applicant with hiv) (2015) tb4-​1 2785 (irb (Canada)) X (Re) (Hungarian Roma minor with disability) (2018) tb2-​0 3319; tb2-​0 3337; tb2-​0 3338 (irb (Canada)) X (Re) (Hungarian Roma who had suffered a stroke) (2015) vb3-​0 3416/​0 3417/​ 03418 (irb (Canada)) X (Re) (Korean single mother suffering from schizophrenia) (2008) va7-​0 2101 (irb (Canada)) X (Re) (Lebanese minor with Tyrosinemia and adhd) (2019) mb7-​2 4799 (irb (Canada)) X (Re) (Lebanese single mother with child born with spina bifida) (2000) T99-​ 00524 (irb (Canada)) X (Re) (Lebanese single woman with mental illness) [2000] irb (Canada) A99-​ 01121 X (Re) (man from St Vincent with tumour) (2011) ty9-​1 7730 (irb (Canada)) X (Re) (Mexican man suffering from kidney failure) (2007) ta5-​0 5262 (irb (Canada))

Table of Cases

xxv

X (Re) (Mexican single mother with son with epilepsy) (2007) ma6-​0 6101 (irb (Canada)) X (Re) (Nigerian child with physical and mental disabilities) (2015) tb4-​1 2468; tb4-​1 2210 (irb (Canada)) X (Re) (Nigerian family with son with Elbs Palsy) (2019) tb9-​1 6802; tb9-​1 6803; tb9-​1 6804; tb9-​1 6805 (irb (Canada)) X (Re) (Nigerian family with son with medical condition) (2019) tb9-​0 5486; tb9-​ 05487; tb9-​0 5488 (irb (Canada)) X (Re) (Nigerian mother with son with autism) (2019) tb8-​2 1213; tb8-​2 1214 (irb (Canada)) X (Re) (Pakistani minor with disability) (2019) tb8-​0 5185; tb8-​0 5186 (irb (Canada)) X (Re) (Slovakian Roma child with disabilities) (2014) tb4-​0 9250; tb4-​0 9280; tb4-​0 9286; tb4-​0 9287 (irb (Canada)) X (Re) (South Korean with mental health issues) (2014) tb1-​1 9714; tb1-​1 9741; tb1-​1 9747; tb1-​1 9748 (irb (Canada)) X (Re) (St Lucian woman with end-​stage kidney disease) (2009) ta6-​0 0980 (irb (Canada)) X (Re) (SVG woman with severe cognitive issues) (2015) tb4-​0 7700 (irb (­Canada)) X (Re) (Turkish Kurdish Alevi with ptsd) (2007) va6-​0 2734 (irb (Canada)) X (Re) (uasc from Poland with disability) (2001) ta0-​0 5472 (irb (Canada)) X (Re) (Zimbabwean man with hiv) (2005) ca4-​0 0446 et seq. (irb (Canada)) X v Argentina un Doc crpd/​c /​1 1/​d /​8 /​2 012, 18 June 2014 (crpd Committee) X v Canada (ethnic Russian single mother from Kyrgyzstan with mental health problems [2001] irb (Canada) T98-​03164 X v Finland app no 34806/04, 3 July 2012 (ECtHR) X v United Republic of Tanzania un Doc crpd/​c /​1 8/​d /​2 2/​2 014, 31 August 2017 (crpd Committee) Y & Anor (Sri Lanka) v Secretary of State for the Home Department [2009] ewca Civ 362 (UK Court of Appeal) Y v United Republic of Tanzania un Doc crpd/​c /​2 0/​d /​2 3/​2 014, 31 August 2018 (crpd Committee) yhi (Re), No T95-​07066 [1996] crdd No. 65, 16 August 1996 (rrt (Australia)) Yoh-​Ekale Mwanje v Belgium app no 10486/​10, 20 December 2011 (ECtHR) Yusuf v Canada 2013 fc 591 (Federal Court of Canada) Zhang v Gonzales (2005) 408 F.3d 1239 (US Court of Appeals for the Ninth ­Circuit) Zheng v Mukasey 552 F.3d 277, 278 (US Court of Appeals for the Second Circuit) Zhu v Canada (1994) 1994 acwsj lexis 68679 (Federal Court of Canada)

xxvi 

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Zoltan Csonka et al v Canada (Citizenship and Immigration) 2012 fc 1056 (Federal Court of Canada) Zsolt Bujdosó and five others v Hungary un Doc crpd/​c /​1 0/​d /​4 /​2 011, 20 September 2013 (crpd Committee) Zubeda v Attorney General (2003) 333 F.3d 463 (US Court of Appeals for the Third Circuit)

newgenprepdf

Table of Legislation Charter on Inclusion of Persons with Disabilities in Humanitarian Action Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/​4 8/​e c) OJ L23/​35 Council Directive 2004/​8 3/​e c of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L 204/​12, 30 September 2004 Directive 2008/​1 15/​e c of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-​country nationals 2008 Directive 2011/​9 5/​e u of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/​9, 20 December 2011 Regulation (eu) No 604/​2013 of the European Parliament and of the Councilof 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-​country national or a stateless person (recast) Statement of the Committee on the Rights of Persons with Disabilities on disability inclusion for the World Humanitarian Summit (Adopted during the Committee’s 14th session, held, from 17 August to 4 September 2015 in Geneva)

chapter i

Introduction In many countries around the world persons with disabilities1 still suffer torture, ill-​treatment and severe discrimination. Sometimes they are persecuted directly by the state, but frequently it is their family members, society or religious institutions that expose them to serious harm, while the state turns a blind eye. Persons with disabilities make up approximately 15% of the world population and an estimated 20% of the population of refugees and internally displaced persons.2 This book examines when persons with disabilities, who are being persecuted for reasons of their disability, are refugees and thus entitled to the protection of the 1951 Refugee Convention3 and the 1967 ­Protocol.4 Certain ill-​treatment to which persons with disabilities are exposed clearly constitutes persecution (one might think of persons with albinism, who suffer ritual attacks, because certain societies believe that their body parts carry magical power).5 However, in many instances the persecution of persons with disabilities takes more perfidious forms. Think, for instance, of persons with intellectual disabilities being tortured by religious leaders or institutions 1 This book will use the term ‘persons with disabilities’ rather than ‚disabled persons’ because the latter stresses the individual medical condition rather than the human condition. Other expressions are now considered derogatory, such as invalid (suggesting the person is not valid), handicapped (coming from hand in cap and likening them to beggars), see further Aart Hendriks and Maria Ventegodt Liisberg, ‘Disability Rights –​Overview’ in David P Forsythe (ed), Encyclopedia of Human Rights, vol 2 (Oxford University Press 2009) 34; for a different view, preferring ‘disabled people’ because it focuses on the societal barriers see Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse Journal of International Law and Commerce 563, 572; see also the cescr’s position using ‘persons with disabilities’ since 1994 in United Nations Committee on Economic, Social and Cultural Rights (cescr), ‘General Comment No. 5: Persons with Disabilities’ un Doc E/​1995/​22, 9 December 1994 para 4. 2 Women’s Refugee Commission, ‘Fact Sheet: Disability Program’ 2017  stating that 66 million were displaced in 2016 and as many as 13.2 million among them were disabled. 3 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’), adoption on 28 July 1951, entry into force on 22 April 1954. 4 1967 Protocol Relating to the Status of Refugees (‘1967 Protocol’), adoption on 31 January 1967, entry into force on 4 October 1967. 5 See the information on the UN website ‘People with albinism: No ghosts but human beings’ .

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004427303_002

2

Chapter I

in order to cast out the devil.6 Or a state policy discriminatorily withholding funding from mental health institutions because of the stigma attached to persons with mental health issues.7 Or care institutions for persons with intellectual, cognitive or psychosocial disabilities with living conditions that are so dire and violent that the patients die of neglect and abuse or are housed in cruel, inhuman and degrading conditions.8 While these persons may be exposed to persecutory treatment, while they may face a total failure of state protection and all of this may be directly linked to their disability, if they seek asylum from this abroad, their recognition as refugees is still a rare exception. Yet, the persecution of persons with disabilities is not a new phenomenon. It should have been very much on the Refugee Convention drafters’ minds when negotiating the Refugee Convention, given the history of persecution of persons with disabilities in the Third Reich.9 Between 1933 and 1945 an estimated one million persons with disabilities were euthanized by Nazi Germany, and somewhere around 700’000 were forcibly sterilized (about 300’000 in concentration camps and 400’000 by doctors).10 In addition, Nazi medical scientists and concentration camp doctors, including the so-​called ‘Angel of Death’ Josef Mengele, conducted medical experiments on persons with disabilities without their consent and in blatant disregard of bioethical standards, thus

6

7

8

9

10

See for instance the case of a 19-​year old intellectually ill Tajik man who was beaten with a wooden cane and his skin was cut to bleed him, in a supposed attempt to exorcise evil spirits, leading to his death:  ‘Tajikistan:  Quacks Making a Comeback’ EurasiaNet (27 November 2013)  ; and the treatment meted out to persons with disabilities in Nigeria, see easo, ‘Country of Origin Information: Nigeria –​Targeting of Individuals’ . See the example of the discriminatory lack of resource allocation for the treatment mental illnesses in the Kenyan health system: Swiss Refugee Council, ‘Schnellrecherche der SFH-​Länderanalyse zu Kenia: Behandlung von Diabetes, Psychiatrische Versorgung’ . See for instance the example of 94 mental health patients who died of physical abuse and negligence in South African mental health care institutions that were in some instances ‘likened to concentration camps’: New York Times, 94 Psychiatric Patients in South Africa Died of Negligence, Report Finds, 2 February 2017 . Gillian Parekh, ‘Is There Refuge for People with Disabilities within the 1951 Convention Relating to the Status of Refugees?’ (2009) 1 Critical Disability Discourse/​Discours Critiques dans le Champ du Handicap 9  argues that ‘perhaps the root of the omission is the evolution of the understanding in which sphere (public or private) disability issues resided’. However, this argument is difficult to accept given the various (public) state measures directed against persons with disabilities at the time, such as forced sterilisation, which negated their human dignity. Hendriks and Ventegodt Liisberg (n 1) 35.

Introduction

3

violating their dignity.11 Persons with disabilities have been described as one of the most sizable groups ‘whose rights and dignity were systematically violated during this era’.12 So why was the issue not more present during the negotiations of the Refugee Convention? It is clear that the Refugee Convention was drafted ‘at least in part as a means of protecting victims of persecution’ in World War ii.13 The glaring absence of any mention of persons with disabilities in the Convention (particularly as one of the Convention grounds) can perhaps be explained by the fact that many of the allies fighting Hitler had themselves forced sterilization programs for disabled persons or been at the forefront of the eugenics movement’s thinking at that time.14 The Nazi policies in fact drew on Francis Galton’s work, a UK pioneer in eugenics, Honorary President of the Eugenics Education Society15 and half-​cousin of Charles Darwin,16 who propagated the social philosophy that healthier and more intelligent people will lessen human suffering and societal expenses.17 Hitler’s laws were also directly influenced by the work of the US American, Harry Laughlin (1880–​1943), a further leading eugenicist. Laughlin was the Superintendent of the Eugenics Record Office in New York until its closure in 1939, proposing the compulsory sterilization of the ‘socially inadequate’, who were in institutions or relying on public funds.18 Indeed, forced sterilisations were performed in many democratic European states from the end of the nineteenth century onwards.19 For instance, 11 12 13 14

15 16 17 18 19

Hendriks and Ventegodt Liisberg (n 1) 35. Hendriks and Ventegodt Liisberg (n 1) 35. unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ April 2001 6 MN 21 . Hendriks and Ventegodt Liisberg (n 1)  35; in fact the same is true for lgbti refugees, who were also persecuted during the Third Reich, but at the time of drafting the Refugee Convention ‘same-​sex sexual activity was illegal’ in most countries, see Jose Alvin C Gonzaga, ‘The Role of the United Nations High Commissioner for Refugees and the Refugee Definition’ in Susan Kneebone (ed), The Refugee Convention 50 Years On (Ashgate 2003) 260, quoting Kirby J in Applicant A v Minister for Immigration and Ethnic Affairs High Court of Australia [1997] hca 4 294. Nicholas Wright Gillham, A Life of Sir Francis Galton: From African Exploration to the Birth of Eugenics (Oxford University Press 2001). Francis Darwin, The Life and Letters of Charles Darwin (D Appleton & Co 1887). Hendriks and Ventegodt Liisberg (n 1) 35. Hendriks and Ventegodt Liisberg (n 1)  35; see also Harry Bruinius, Better for All the World:  The Secret History of Forced Sterilization and America’s Quest for Racial Purity (Vintage Books 2007). Philippa Levine and Alison Bashford, ‘Eugenics and the Modern World’, The Oxford Handbook of the History of Eugenics (Oxford University Press 2010) esp. 14–​18.

4

Chapter I

Scandinavian states considered eugenic measures as necessary for the social welfare state.20 During the 1930s, overtly racial measures in Europe came increasingly under criticism and began to be reframed as medical and social measures, even more specifically targeting persons who were considered to be ‘mentally ill’.21 Indeed, with its Law for the Prevention of Progeny with Hereditary Diseases, which provided for the forcible sterilization (and later also forcible abortion) of persons with intellectual and physical disabilities,22 Germany was in good company, with other countries, such as the USA, Denmark, Norway, Sweden and Finland, having already enacted compulsory sterilization laws, and other countries, such as Hungary, the United Kingdom, Switzerland, Poland, Japan, Latvia and Lithuania, considering enacting sterilization laws at that time. Thus, Nazi Germany was at the time following an international trend with its legislation and policies on eugenics.23 It is perhaps not surprising then that it is not just in the context of refugee law that the dignity and human rights of persons with disabilities have been disregarded for a long time. International human rights law has been similarly slow in recognizing the human rights of persons with disabilities in a binding and explicit manner. Although persons with disabilities had been ‘subjected to programs of brutal persecution and annihilation’ during the Third Reich, it was not until the UN Convention on the Rights of the Child24 that they were for

20

21

22

23 24

Véronique Mottier and Natalia Gerodetti, ‘Eugenics and Social Democracy: Or, How the European Left Tried to Eliminate the “Weeds” from Its National Gardens’ (2006–​2007) New Formations 35, 35; Gunnar Broberg and Nils Roll-​Hansen (eds), Eugenics and the Welfare State:  Sterilization Policy in Denmark, Sweden, Norway and Finland (Michigan State University Press 1996). Gunnar Broberg and Mattias Tydén, ‘Eugenics in Sweden:  Efficient Care’ in Gunnar Broberg and Nils Roll-​Hansen (eds), Eugenics and the Welfare State:  Sterilization Policy in Denmark, Sweden, Norway and Finland (Michigan State University Press 1996) 77–​149; Nils Roll-​Hansen, ‘Scandinavian Eugenics in the International Context’ in Broberg and Roll-​Hansen (eds), Eugenics and the Welfare State: Sterilization Policy in Denmark, Sweden, Norway and Finland (n 20) 259–​271. In particular, it applied to persons with intellectual disabilities, persons suffering from schizophrenia, and manic-​depression, epilepsy, Huntington’s disease, blindness, deafness and severe physical deformations (Art. 1 (2) of the Law for the Prevention of Hereditarily Diseased Offspring). For further examples of eugenics thinking in countries like France, Switzerland and England at that time, see also José Guimón, Inequity and Madness:  Psychosocial and Human Rights Issues (Kluwer 2001) 12–​13. 1989 Convention on the Rights of the Child (‘crc’), adoption on 20 November 1989, entry into force on 2 September 1990, expressly mentioning disability in its Arts. 2 and 23.

Introduction

5

the first time mentioned in an international human rights treaty.25 Thus, the same reluctance that existed in international refugee law to mention disability in the Refugee Convention and, in particular, accept disability as a Convention ground was reflected in international human rights law.26 Indeed, the recognition of the human rights of persons with disabilities had a remarkably slow start on the international plane. Early on, their rights were only addressed by the ilo in the 1955 ilo Recommendation No. 99 concerning the Vocational Rehabilitation of the Disabled, and two further ilo instruments in 1983.27 As a result of this international lack of recognition of disability rights, the international disability movement began to lobby for disability-​ specific standards. As a first step, a number of soft law instruments were developed in the 1970s, which sought to address the gap in effective protection of the human rights of persons with disabilities.28 On 3 December 1982 the UN General Assembly adopted the World Programme of Action concerning Disabled Persons declaring the following ten years the UN Decade of Disabled Persons.29 At the end of the UN Decade of Disabled Persons in 1993, the UN adopted Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.30 However, these did still not address the situation of refugees with disabilities. They were mentioned for the first time by the first Special Rapporteur on Disability Bengt Lindqvist towards the end of his tenure. He 25

26

27 28

29 30

Lawson (n 1)  576; Hendriks and Ventegodt Liisberg (n 1)  35 note, however, that on a regional level the European Social Charter of 1961 referred to the rights of persons with disabilities (in Art. 15) and Art. 5(1)(e) echr refers to persons of unsound mind, clearly representing the view at the time that they are a medical problem. There were a few notable exceptions, particularly Committee on the Elimination of Discrimination Against Women (cedaw) General Recommendation No. 18 on disabled women in 1991; the United Nations Committee on Economic, Social and Cultural Rights (cescr) (n 1); and certain Human Rights Committee decisions, such as Hamilton v Jamaica un Doc ccpr/​c /​66/​d /​616/​1995 (18 July 1999); Lawson (n 1) 577–​578, 583–​584; see further Hendriks and Ventegodt Liisberg (n 1) 37. ilo Recommendation No. 168 (1983) and ilo Convention No. 159 (1983) both concerning Vocational Rehabilitation and Employment (Disabled Persons). ga Declaration on the Rights of Mentally Retarded Persons 1971; ga Declaration on the Rights of Disabled Persons 1975; ga World Programme of Action Concerning Disabled Persons; UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care and the Talinn Guidelines for Action on Human Resources Development in the Field of Disability. Adopted in General Assembly Resolution 37/​52 contained in U.N.  document A/​37/​51, Official Records of the General Assembly, Thirty-​seventh Session Supplement No. 51. For a useful overview of the developments preceding the adoption of the crpd and the drafting history, see Lawson (n 1); the Standard Rules also provided for the appointment of a Special Rapporteur on Disability to monitor their implementation.

6

Chapter I

criticised that refugees with disabilities and persons with disabilities in emergency situations had not been addressed in the Standard Rules.31 In response to this, a Supplement to the Standard Rules with the title ‘Reaching the most vulnerable: proposed supplement to the Standard Rules on the Equalization of Opportunities for Persons with Disabilities’32 was adopted, which included reference to ‘sustainable solutions’ for refugees with disabilities that States may achieve in cooperation with unhcr.33 At the same time, there was a growing recognition that these soft law declarations and UN policy measures proved ineffective in redressing the ‘profound social disadvantage’34 of persons with disabilities as well as in promoting ‘their participation in the civil, political, economic, social and cultural spheres with equal opportunities’35, so that a specific treaty on the human rights of disabled persons was found to be necessary.36 In 2000 the Beijing Declaration on the Rights of Persons with Disabilities in the New Century called for the drafting of an international convention and the UN Human Rights Commission requested the ohchr to examine measures strengthening the human rights protection of persons with disabilities.37 In response, the UN High Commissioner for Human Rights initiated a comprehensive study on the human rights dimensions

31

32 33

34 35 36

37

ecosoc, Commission for Social Development, ‘Final Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on His Second Mission, 1997–​2000’ un Doc E/​c n.5/​2000/​3 (8–​17 February 2000) at para 119. un Doc Annex E/​c n.5/​2004/​4. ecosoc, Commission for Social Development, ‘Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on the Third Mandate, 2000–​2002, Annex:  Reaching the Most Vulnerable:  Proposed Supplement to the Standard Rules on the Equalization of Opportunities for Persons with Disabilities’ un Doc E/​c n.5/​2004/​4 (9 January 2002) at para. 18. crpd Preamble, para. y. crpd Preamble, para. y. Rachele Cera, ‘Article 5 [Equality and Non-​Discrimination]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities:  A Commentary (Springer 2017)  159; Michael Ashley Stein and Janet E Lord, ‘Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 22–​23; Oddny Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 45–​46. Lawson (n 1) 586–​587; Hendriks and Ventegodt Liisberg (n 1) 37–​38.

Introduction

7

of disability and the current use and future potential of the existing UN human rights instruments in this field.38 The resulting review came to the conclusion that a thematic treaty on the rights of persons with disabilities would ‘immeasurably advance the rights of persons with disabilities, while at the same time enhancing the capacity of the existing instruments to respond appropriately’.39 This collided with the prevailing view at the time that existing human rights standards adequately protected the rights of persons with disabilities. However, it was noted that ‘many of the obligations under other instruments are set out in quite a broad and generic way, which can leave grey areas for their practical implementation in respect of particular groups’.40 Even in the run-​up to the drafting of the crpd there was still an ‘initial reluctance of many States to accept the need for a disability-​specific UN human rights treaty’.41 As then UN High Commissioner for Human Rights, Louise Arbour, stated at the 7th session of the Ad hoc Committee drafting the cprd on 27th January 2006: There is no doubt that the existing human rights system was meant to promote and protect the rights of persons with disabilities. There is also no doubt that the existing standards and mechanisms have in fact, failed to provide adequate protection in the specific case of persons with disabilities. It is clearly time for the United Nations to remedy this shortcoming. Once the drafting process of the crpd had commenced, the treaty was negotiated in record time with strong participation of the international disability movement giving effect to its own slogan ‘nothing about us without us’.42 Four years after the decision to draft the Convention, the crpd and the Optional Protocol on individual complaints alleging violations of the crpd to the

38

39 40 41

42

Gerard Quinn and Theresia Degener, ‘Human Rights and Disability:  The Current Use and Future Potential of U.N. Human Rights Instruments in the Context of Disability’ un Doc hr/​p ub/​02/​1 (2002) ix (foreword by High Commissioner for Human Rights Mary Robinson) . Quinn and Degener (n 39) 9. Mjöll Arnardóttir (n 37)  46 quoting the Statement on behalf of New Zealand by Ambassador Don MacKay, at the adoption of the crpd in the UN General Assembly, 2006. Lawson (n 1) 573 referring to opposition, within the European Parliament in March 2004, to the adoption of a human rights report on the ground that it contained a chapter on the human rights of disabled people as this was not ‘regarded as an appropriate subject for a report on human rights’’’. Don MacKay, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34 Syracuse Journal of International Law and Commerce 323, 327–​328.

8

Chapter I

Committee on the Rights of Persons with Disabilities were adopted on 13 December 2006. The crpd is the first international human rights treaty of the 21st century and the most recent group rights treaty at UN level. The Convention entered into force on 3 May 2008. To date there have been 175 signatures or accessions to the Convention (including the European Union), and 92 ratifications of the Optional Protocol.43 The crpd does ‘not explicitly aim to create new human rights and instead seeks to adapt the existing human rights protection to the unique situation of persons with disabilities’.44 It can be described as elaborating ‘in considerable detail the rights of persons with disabilities under international law and set[ting] out a code of implementation for governments’.45 Not only has it rendered the human rights of persons with disabilities more visible internationally, it also clarifies and specifies the meaning of specific human rights in the context of persons with disabilities.46 The crpd formulates human rights in a way that makes them become a reality for persons with disabilities. It includes important disability-​specific rights such as the right to legal capacity and the right to accessibility, upon which the exercise of many other human rights is premised. The crpd constitutes a fundamental shift in the protection of their human rights, viewing persons with disabilities as autonomous persons who participate as active members in society on equal terms with others and whose dignity is respected.47 It firmly embeds the rights of persons with disabilities as a ‘human rights issue, which acknowledges that societal barriers and prejudices are themselves ­disabling’.48 43 44 45

46 47

48

See U.N. Enable [accessed on 18 September 2017]. Mjöll Arnardóttir (n 37) 44. MacKay (n 43) 327; see also Anna Lawson, ‘The UN Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 107–​108. Lawson (n 1) 583–​585. Brynhildur G Flóvenz, ‘The Implementation of the UN Convention and the Development of Economical and Social Rights as Human Rights’, The UN Convention on the Rights of Persons with Disabilities:  European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 259; Mjöll Arnardóttir (n 37) 41; MacKay (n 43) 328. MacKay (n 43) 328; see also Stephanie A Motz, ‘The Persecution of Disabled Persons and the Duty of Reasonable Accommodation: An Analysis under International Refugee Law, the EU Recast Qualification Directive and the ECHR’ in Bauloz, Céline and others (eds), Seeking Asylum in the European Union:  Critical Perspectives on the Second Phase of the Common European Asylum System (Brill/​Martinus Nijhoff Publishers 2015) 144.

Introduction

9

Indeed, the crpd is based on a social model of disability, rather than a medical model, stressing the need to remove societal barriers that prevent persons with disabilities from exercising their rights, and from full participation in society, rather than focusing on the medical condition of the person and ways to lessen or remedy the impairment.49 According to the medical model, persons with disabilities ‘depend for their survival on welfare benefits or charity’ locking them into ‘cycles of dependency and despondency’.50 The social model, on the other hand, sets the focus on society, which needs to adapt, rather than the individual.51 The crpd does not include a definition of disability. Instead, its Art. 1 sets out the ‘Purpose’ of the crpd as promoting, protecting and ensuring ‘the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and [promoting] respect for their inherent dignity’ and goes on to state: Persons with disabilities include those who have long-​term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. One of the key features of the social model and a recurring theme of the crpd is the right to social inclusion and to autonomy (Art. 3(a) crpd), which is closely linked to the right to full and effective participation in society (Art. 3(c) crpd). Rather than segregating and institutionalising persons with disabilities, the crpd puts its emphasis on a society inclusive of disabled persons, in which they can choose for themselves and enjoy autonomy, supported if necessary. Social inclusion may require support or accessibility.52 But the institutionalisation of persons with disabilities has too often been an automatic fall-​back response, even though this was regularly contrary to the wishes of the person concerned.53 The crpd articulates the right to social inclusion further as follows: children with disabilities are to be included in regular schools (Art. 24), persons

49 50 51 52 53

For an overview of the theoretical approaches on the social model, see: Carol Thomas, ‘Disability Theory: Key Ideas, Issues and Thinkers’ in Nick Watson (ed), Disability: Major Themes in Health and Social Welfare, vol I (Routledge 2008); see further Lawson (n 1) 572. Lawson (n 1) 571–​572. Lawson (n 1) 573. MacKay (n 43) 329. MacKay (n 43) 329.

10

Chapter I

with disabilities have a right to live independently and to be fully included in the community, with choices equal to others, including regarding their place of residence (Art. 19), they have a right to legal capacity and supported rather than substitute decision-​making (Art. 12), persons with disabilities have the right to a labour market that is inclusive and accessible to them (Art. 27), and a right to attain and maintain maximum independence, including full inclusion and participation in all aspects of life (Art. 26). The right to accessibility (Art. 9) is a further important articulation of existing human rights standards, particularly the right to freedom of expression and freedom of movement, in a disability-​sensitive manner, covering not only physical mobility but also accessible information and communication technologies.54 As a ‘hybrid convention’ the crpd contains both civil and political rights, and economic, social and cultural rights and does not create a hierarchy between them.55 However, Art. 4(2) crpd makes it clear that economic, social and cultural rights are to be implemented progressively. Against the background of these significant developments in international human rights law, with a detailed and enabling articulation of the human rights of persons with disabilities in the crpd, the lack of attention given to the rights of persons with disabilities in refugee law is particularly striking. For human rights treaties have the potential of shifting the focus and perspective in an analysis of the refugee definition. As Foster notes in relation to the development of a gender-​and child-​sensitive refugee ­definition:56 it is the advent of specific human rights conventions that has brought the particular needs of women and children to the fore and assisted [refugee] decision-​makers in understanding the ways in which women’s and children’s experiences of ‘torture’ and ‘degrading treatment’, while different from that experienced by men, are nonetheless incidences of ­persecution.

54

55 56

MacKay (n 43) 329; see also crpd Committee, ‘General Comment No. 2 (2014): Article 9:  Accessibility’ un Doc crpd/​c /​g c/​2, 22 May 2014 paras. 1–​4 stressing that this right follows from the right to freedom of expression, the right to freedom of movement, the right to public service in one’s country and other human rights. MacKay (n 43) 330. Michelle Foster, International Refugee Law and Socio-​Economic Rights  –​Refuge from Deprivation (Cambridge University Press 2009) 65.

Introduction

11

Specific human rights treaties formulate the experience of human rights abuses from the perspective of a particular group, such as children or women or persons with disabilities. There is no need to change the refugee definition in order to adapt to these specific needs: such group-​specific claims ‘ought to be assessed on exactly the same grounds as every other claim to Convention refugee status’.57 Just like in the case of child-​or gender-​sensitive asylum claims, it does not require a new refugee definition in order to take account of the specific situation of persons with disabilities.58 What is required is that the individual elements of the refugee definition are interpreted in a way that takes account of the specific situation and human rights of persons with disabilities, that a disability-​specific interpretation of the refugee definition is adopted. Persons with disabilities experience different forms of persecution and lack of state protection and cannot just be subsumed under the heading ‘vulnerable groups’. For the experience of persecution differs between different groups that are commonly subsumed under the header ‘vulnerable’. For instance, vulnerabilities and needs between women and child migrants are not necessarily shared, as women will need an ‘environment that enables them to act autonomously and independently’.59 The same is true for refugees with disabilities who seek autonomy and inclusion rather than pity and segregation. The crpd ‘promises to raise the profile of discrimination against all persons with disabilities, including disabled migrant workers, disabled refugees, and disabled women and children who seek protection in a non-​discriminatory environment’.60 But the shift in focus and approach that has come about in international human rights law with the advent of the crpd as regards persons with disabilities has yet to take place in the context of international refugee law.

57 58

59 60

Heaven Crawley, Refugees and Gender –​Law and Process (Jordans 2001) 37, referring to James Hathaway, The Law of Refugee Status (1st edn, Butterworths 1991) who stated this in the context of gender-​specific asylum claims. For child refugee claims, see Rachel Brett, Margaret Brett and Haifa Rashed, ‘Children Fleeing Conflict:  Age and the Interpretation and Application of the 1951 Refugee Convention’ in Volker Türk, Alice Edwards and Cornelius Wouters (eds), In Flight from Conflict and Violence:  UNHCR’s Consultations on Refugee Status and Other Forms of International Protection (Cambridge University Press 2017). Jacqueline Bhabha, ‘Women, Children and Other Marginalised Migrant Groups’ in Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-​Cross (eds), Foundations of International Migration Law (Cambridge University Press 2012) 208–​209. Bhabha (n 60) 230.

12

Chapter I

Decision-​makers still tend to view persons with disabilities as a burden on the asylum state, as objects of charity and a welfare issue. It is a common albeit often unspoken objection to a disability-​specific refugee definition that countries of asylum in the developed world cannot be the hospitals for the population of the rest of the world.61 Such a simplistic view is reflective of the medical model of disability, which fails to recognise that it is the societal barriers which play a material part in disabling people.62 Many countries still view asylum cases of persons with disabilities as an issue for discretionary permits based on humanitarian grounds, again reflecting the charity-​based medical model of disability, rather than a rights-​based approach under the Refugee Convention.63 As a first international step, the UN High Commissioner for Refugees (‘unhcr’) Executive Committee has followed suit after the adoption of the crpd and has addressed the rights of refugees with disabilities in a number of ExCom Conclusions. The unhcr ExCom Conclusion on International Protection No. 108 (lix) of 2008 stresses the right of refugees with disabilities to non-​discrimination and the importance of a protection environment that

61

62 63

This medical model is reflected to an extent in the ECtHR’s case law on expulsion cases involving medical needs, which sets an exceptionally strict standard of a ‘real risk … of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’, see Paposhvili v Belgium app no 41738/​10 (ECtHR, 17 April 2014)  at para. 183; see also the previous cases concerning persons with disabilities or health issues, such as SHH v United Kingdom app no 60367/​10 (ECtHR, 29 January 2013); D v United Kingdom app no 30240/​96 (ECtHR, 2 May 1997); N v United Kingdom app no 26565/​05 (ECtHR (gc), 27 May 2008); and as an exception to this strict rule in the detention context Aswat v United Kingdom app no 17299/​12 (ECtHR, 16 April 2013); for a full analysis see Fanny de Weck, ‘Das Rückschiebungsverbot aus medizinischen Gründen nach Art. 3 EMRK’ Jusletter, Schwerpunktausgabe Migrationsrecht 13 März 2013; Fanny de Weck and Stephanie Motz, ‘Die Relevanz von Krankheit oder Behinderung für die Flüchtlingseigenschaft und für das Refoulement-​Verbot gemäss Art. 3 EMRK’ [2017] Asyl 3/​17. Clara Straimer, ‘Vulnerable or Invisible? Asylum Seekers with Disabilities in Europe’ (University of Oxford 2010) unhcr, New Issues in Refugee Research, Research Paper No 194 6 . See for instance Switzerland, where medical cases are regularly assessed under the head whether ‘enforcement of removal or expulsion would be unreasonable’ pursuant to Art. 83(1) and (4) Foreign Nationals Act; in Germany they often receive a residence permit for reasons of exceptional hardship pursuant to Art. 25 Aufenthaltsgesetz; in Sweden, they mainly received residence permits on humanitarian grounds, but this has been repealed as of 20 July 2016, see aida, ‘Residence Permit: Sweden’ .

Introduction

13

promotes the systematic inclusion of refugees with disabilities (paras. (i) and (j)). On 12 October 2010 the unhcr Executive Committee adopted its first specific Conclusion on refugees with disabilities and other persons with disabilities protected and assisted by unhcr No. 110 (lxi) of 2010 stressing various obligations owed to disabled refugees under the crpd and thus removing the doubts of States Parties to the Refugee Convention that the obligations under the crpd might not be owed to refugees.64 Two UN human rights committees have also addressed the situation of refugees with disabilities. In a Joint Statement issued in April 2017, the Committee on Migrant Workers and the crpd Committee have called on States to ensure that the intergovernmental negotiations leading up to the global compact on migration after the New York Declaration take account of the needs of refugees and migrants with disabilities.65 The Committees stress that migrants with disabilities ‘are often hesitant to disclose their disabilities to authorities for fear of affecting their asylum applications’.66 This fear of disclosure renders formal procedures for the identification of refugees with disabilities even more important.67 Such procedures would be ‘the first step in ensuring that [persons with disabilities] can benefit from the specific protections afforded to them in accordance with international human rights treaty obligations of the States concerned’.68 These are important advances for persons with disabilities. However, they do not address the question how a disability rights focus would impact on the application of the Refugee Convention or what specific focus a disability-​ sensitive refugee definition would require. This book will demonstrate that it is high time for the refugee definition to take account of the specific human rights of persons with disabilities. High time for a refugee definition, that is disability-​specific, so that persons with disabilities will be protected in case of persecution in their country of origin. 64 65 66 67 68

Mary Crock, Christine Ernst and Ron McCallum, ‘Where Disability and Displacement Intersect: Asylum Seekers and Refugees with Disabilities’ (2012) 24 International Journal of Refugee Law 735. Joint Statement by the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (cmw), and the crpd Committee, ‘Addressing Disabilities in Large-​Scale Movements of Refugees and Migrants’ (12 April 2017) 1. Joint Statement by the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (cmw), and the crpd Committee (n 66) 2. Joint Statement by the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (cmw), and the crpd Committee (n 66) 1. Joint Statement by the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (cmw), and the crpd Committee (n 66) 3.

14

Chapter I

This book seeks to provide a legally and practically sound and principled starting point for a disability-​specific refugee definition. For this, it will draw on an evolutionary interpretation of the refugee definition, which sees the Refugee Convention as ‘a living instrument’. In Chapter ii of this book I set out the theoretical basis for an evolutionary interpretation of the refugee definition. I will demonstrate that contemporary international human rights standards, particularly those enshrined in the crpd, are apt to inform such an evolutionary interpretation of the refugee definition. In Chapter iii I set out the core of the disability-​specific approach to the refugee definition, the element of ‘being persecuted’. In particular, I consider a disability-​specific approach to the serious harm of persecution in light of the crpd and demonstrate how asylum cases would fall to be assessed differently under a disability-​specific approach. In Chapter iv I will examine private actor persecution and the failure of state protection as well as internal protection alternatives in the context of asylum claims of persons with disabilities. In Chapter v I will focus on the crux of the refugee definition for persons with disabilities, the necessary causal link between persecution and the Convention ground of disability. Chapter vi will finally consider whether persons with disabilities fall within the Convention ground of ‘membership of a particular social group’. In the Conclusion in Chapter vii I  will draw together the different aspects of a disability-​sensitive refugee definition and demonstrate that a disability-​ specific interpretation of the individual elements of the refugee definition respects the human rights of persons with disabilities, finally bringing the paradigm shift from the medical to a rights-​based social model into the sphere of international refugee law. For the analysis in this book, I will draw in particular on the existing case law on asylum claims of persons with disabilities of the courts in Australia, Canada, New Zealand and the US. These jurisdictions have considerable experience with asylum decisions concerning persons with disabilities, from which both negative and positive examples can be discerned that will assist in formulating a disability-​specific refugee definition. In addition, I will draw on general refugee law principles articulated by the UK courts69 and the refugee definition

69

However, no case law grounding the grant of asylum on the crpd exists from the UK yet, which may be due to the fact that the UK had entered a reservation to the crpd concerning immigration matters. The only time the Immigration and Asylum Chamber of the Upper Tribunal has been asked to rely on the crpd, was in the case of rs & Ors (Zimbabwe –​aids) Zimbabwe cg [2010] ukut 363 (iac) and was not in the context of the definition of persecution but as a legal basis for a right of stay in the UK in its own right as well as in the context of the UK Disability Discrimination Act.

Introduction

15

in the EU Recast Qualification Directive70. Further, I will set out the norms of international human rights and in particular the crpd, which provide for a framework against which a disability-​specific refugee definition can be developed.71 The focus of this book lies squarely on the substantive definition of when persons with disabilities qualify as refugees, which has not been considered in detail by scholars yet.72 However, this book will not address the requirements for a disability-​specific asylum procedure, which deserves separate and detailed treatment elsewhere,73 nor does it consider the question as to how persons with cognitive or intellectual disabilities may establish the subjective

70

71

72

73

Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast). Again, the Court of Justice of the European Union has not yet decided a refugee case of a person with disabilities under the Recast Qualification Directive. The focus will lie on UN standards, particularly the crpd, those set out by the crpd Committee, and those under UN human rights treaties as further elaborated by the relevant UN treaty bodies. The case law of the European Court of Human Rights and the Inter-​American Commission and Inter-​American Court of Human Rights are considered, where these shed further light on the meaning of international standards. Existing literature has only given a cursory treatment to this question, see e.g. Mary Crock and others, The Legal Protection of Refugees with Disabilities:  Forgotten and Invisible? (Edward Elgar Publishing 2017)  150–​157; Crock, Ernst and McCallum (n 65); Parekh (n 9); Arlene Kanter and Kristin Dadey, ‘The Right to Asylum for People with Disabilities’ (2000) 73 Temple Law Review 1117; Andreas Dimopoulos, ‘An Enabling Interpretation of the Refugee Convention: Determination of Refugee Status in Light of the Convention on the Rights of Persons with Disabilities’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​ Martinus Nijhoff Publishers 2016). For an examination of these issues, see for instance Arlene S Kanter, R Blake Chisham and Christopher Nugent, ‘The Right to Asylum and Need for Legal Representation of People with Mental Disabilities in Immigration Proceedings’ (2001) 25 Mental and Physical Disability Law Report 511; Zachary Steel, Naomi Frommer and Derrick Silove, ‘Part I:  The Mental Health Impacts of Migration:  The Law and Its Effects  –​Failing to Understand:  Refugee Determination and the Traumatized Applicant’ (2004) 27 International Journal of Law and Psychiatry 511; Kuowei Tay and others, ‘A Mixed-​ Method Study of Expert Psychological Evidence Submitted for a Cohort of Asylum Seekers Undergoing Refugee Status Determination in Australia’ (2015) 138 Social Science & Medicine 12 expressing concern that trauma-​affected asylum seekers may be consistently disadvantaged in the refugee decision-​making process and underscore the need to improve the understanding and use of mental health evidence in the refugee decision-​making setting.

16

Chapter I

element of a well-​founded fear,74 something which again concerns procedural questions.75 74

75

It has been accepted in the jurisprudence studied in this book that persons with cognitive or intellectual disabilities may not be able to articulate a subjective fear, so that the focus lies instead on the objective element of it, see e.g. Canada v Patel 2008 fc 747 (Federal Court of Canada) at paras. 29, 33–​34; X (Re) (svg woman with severe cognitive issues) (2015) TB4-​07700 (irb (Canada)) at para.18; on the slightly different approach in the US, see Matter of J-​R-​R-​A (2015) 26 I & N Dec. 609 (bia 2015) (US Board of Immigration Appeals); discussed in Ian Green, ‘Mental Disability and Subjective Fear in the United States’ RefLaw ; on the need to focus on the objective element in such cases see Julinda Beqiraj, Lawrence McNamara and Victoria Wicks, Access to Justice for Persons with Disabilities:  From International Principles to Practice (International Bar Association 2017) 44; on the shared duty of fact-​finding in this respect see James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014)  118–​121; and see on this in particular James C Hathaway and William S Hicks, ‘Is There A Subjective Element in the Refugee Convention’s Requirement of Well-​Founded Fear’ (2004) 26 Mich. J.  Int’l L. 505; and the position of European refugee law judges set out in easo, ‘Qualification for International Protection (Directive 2011/​95/​EU): A Judicial Analysis, Produced by the International Association of Refugee Law Judges, European Chapter (iarlj-​Europe)’, December 2016, 81–​82 . The right to legal capacity and supported decision-​making assumes particular importance in this context, see crpd Committee, ‘General Comment No. 1 (2014): Article 12: Equal Recognition before the Law’ un Doc crpd/​c /​g c/​1, 19 May 2014 at para. 3; for instance Crock and others (n 73) point to the importance of reasonable adjustments particularly for persons with cognitive impairments in order for them to be able to articulate a subjective fear; see also on this the International Association of Refugee Law Judges (iarlj), Judicial Guidelines on Procedures with Respect to Vulnerable Persons:  Physical Disability (Guidance Note 9, September 2008).

chapter ii

A Disability-​Sensitive Interpretation of the Refugee Definition The Refugee Convention is a “living thing, adopted by civilized countries for a humanitarian end which is constant in motive but mutable in form” lord bingham in Sepet and Bulbul1

This Convention [on the Rights of Persons with Disabilities] is a remarkable and forward- looking document … Let us ensure that this day indeed marks a new dawn. Let it usher in an age when all those living with disabilities around the world become fully fledged citizens of their societies. UN Secretary-​General kofi annan, Message on the Adoption of the crpd2

A

Introduction

This book advances a disability-​sensitive refugee definition. It takes as its starting point the Refugee Convention3 and its 1967 Protocol4 and interprets them in light of the United Nations Convention on the Rights of Persons with Disabilities (‘crpd’).5 The crpd is the first international human rights treaty 1 Sepet and Bulbul v Secretary of State for the Home Department [2003] 1 wlr 856 (UK House of Lords) 862. 2 The Secretary-​General, Secretary-​General's Message on the Adoption of the Convention of the Rights of Persons with Disabilities, delivered by Mr. Mark Malloch Brown, Deputy Secretary General, un Doc sg/​s m/​10797-​HR/​4911-​L/​T/​4400 (13 December 2006) . 3 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’), adoption on 28 July 1951, entry into force on 22 April 1954. 4 1967 Protocol Relating to the Status of Refugees (‘1967 Protocol’) adoption on 31 January 1967, entry into force on 4 October 1967. 5 2006 Convention on the Rights of Persons with Disabilities, adoption on 13 December 2006, entry into force on 3 May 2008.

18

Chapter II

to articulate the human rights of persons with disabilities in detail. The entry into force of the crpd has brought about a paradigm shift in the human rights protection of persons with disabilities. They are no longer viewed as objects of charity but as subjects and rights-​holders.6 While the crpd does not expressly deal with the rights of refugees with disabilities or refugee status determination, its Article 11 on persons with disabilities in risk situations  –​as interpreted by the crpd Committee in its Concluding Observations –​extends protection under the crpd to refugees with disabilities.7 In particular, Art. 11 crpd has been interpreted by the crpd Committee as imposing disability-​ specific procedural standards and reception conditions for refugees and asylum applicants with disabilities.8 However, Art. 11 does not directly address the substantive elements of the refugee definition and has not been interpreted by the crpd Committee as imposing any obligations in the context of who qualifies as a refugee under the Refugee Convention.9 The question whether general non-​refoulement obligations may be derived from Art. 11 crpd is not part of the subject-​matter of this book. 6 Brynhildur G Flóvenz, ‘The Implementation of the UN Convention and the Development of Economical and Social Rights as Human Rights’, The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 259; Oddny Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 41; Don MacKay, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34 Syracuse Journal of International Law and Commerce 323, 328; Gerard Quinn and Theresia Degener, ‘Human Rights and Disability:  The Current Use and Future Potential of U.N. Human Rights Instruments in the Context of Disability’ un Doc hr/​ pub/​02/​1 (2002) ; see also Stephanie A Motz, ‘The Persecution of Disabled Persons and the Duty of Reasonable Accommodation: An Analysis under International Refugee Law, the EU Recast Qualification Directive and the ECHR’ in Bauloz, Céline and others (eds), Seeking Asylum in the European Union: Critical Perspectives on the Second Phase of the Common European Asylum System (Brill/​Martinus Nijhoff Publishers 2015) 144. 7 See Stephanie A Motz, ‘Article 11: Situations of Risk and Humanitarian Emergencies’ in Michael A Stein, Ilias Bantekas and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) with reference to various crpd Committee Conclusions regarding the rights of persons with disabilities. 8 See generally Motz (n 7); see also Giovanni C Bruno, ‘Article 11 [Situations of Risk and Humanitarian Emergencies]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017). 9 This was argued but rejected also for reasons of a relevant reservation in rs & Ors (Zimbabwe –​ aids) Zimbabwe cg [2010] ukut 363 (iac); see generally on the observations of the crpd Committee on Art. 11 crpd and asylum procedures Motz (n 7).

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The present Chapter will examine whether the refugee definition under the Refugee Convention and the 1967 Protocol ought to be interpreted in light of the crpd in cases concerning persons with disabilities. It begins by considering some general questions. Subchapter B examines the nature of the refugee definition under the Refugee Convention and the 1967 Protocol, the interpretive status of unhcr and the difference between a static and an evolutionary approach to interpretation. Subchapter C of this Chapter considers an interpretation of the refugee definition according to the general rules of interpretation of the Vienna Convention on the Law of Treaties (‘vclt’).10 Subchapter D draws the conclusions from Subchapter C and will propose general principles for an evolutionary disability-​ specific human rights approach to the refugee definition, which forms the basis of the remainder of this book. B

The Nature of the Refugee Definition and Its Interpretation

1 The Flexibility of the Refugee Definition Art. 1A(2) taken with the 1967 Protocol sets out the refugee definition and establishes that a refugee is a person who: owing to well-​founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. The definition of a refugee contains several requirements, which an applicant11 needs to meet.12 The person seeking recognition of refugee status needs to demonstrate that: 10 11 12

1969 Vienna Convention on the Law of Treaties, adoption on 23 May 1969, entry into force on 27 January 1980. For reasons of simplicity, this thesis will refer to ‘applicants’ throughout its discussion of the jurisprudence, even where these may in the respective domestic law be termed ‘claimants’, ‘appellants’ or ‘petitioners’. Domestic practice varies as to which of these elements are examined separately. For instance, in French or Swiss asylum law the causal nexus (“for reasons of”) is not examined as a separate requirement but is subsumed in the analysis of the Convention ground or the well-​founded fear requirement, see for instance Jean-​Yves Carlier, ‘Et Genève Sera

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i. ii. iii. iv.

owing to a ‘well-​founded fear’ of ‘being persecuted’ ‘for reasons of’ ‘race, religion, nationality, membership of a particular social group or political opinion’ she13 v. ‘is outside the country of her nationality’ (or habitual residence, if stateless) and vi. ‘is unable or, owing to such fear, unwilling to avail herself of the protection of that country’ (or to return to it, if stateless). Each of these elements is relatively vague and open-​ended leaving considerable room for interpretation.14 In practice, this means that the refugee definition is dependent on judicial interpretation in each individual case.15 For instance, disagreement persists as to the exact circumstances in which ‘being persecuted’ includes human rights abuses or a situation of discrimination, as to what is required for the fear to be ‘well-​founded’, or what characteristics qualify for membership of a ‘particular social group’. Because the implementation of the Refugee Convention varies domestically, it has been said that ‘the treatment of refugees worldwide takes the form of a highly fragmented as opposed to unified regime’.16

13 14

15 16

… La Définition Du Réfugié : Bilan et Perspectives’, La Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés 50 Ans Après : Bilan et Perspectives (Bruylant 2001) 81; Martina Caroni and others, Migrationsrecht (3rd ed, Stämpfli Verlag ag 2014)  236, 257–​262. The female form will be used throughout this thesis instead of the male form. However, open-​ended does not mean unlimited in its scope; each of the elements cumulatively sets limits on the refugee definition, as does a good faith interpretation of it, see Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14 (High Court of Australia) at para. 37. James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014) 3. Nergis Canefe, ‘The Fragmented Nature of the International Refugee Regime and Its Consequences:  A Comparative Analysis of the Applications of the 1951 Convention’ in James C Simeon (ed), Critical Issues in International Refugee Law, Strategies Toward Interpretative Harmony (Cambridge University Press 2010)  187; see also Walter Kälin, ‘Supervising the 1951 Convention Relating to the Status of Refugees:  Article 35 and Beyond’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (cup 2003)  615 who speaks of ‘a lack of uniformity in the actual application’ of the provisions of the Refugee Convention; and Guy S Goodwin-​Gill, ‘The Search for the One, True Meaning …’ in Guy S Goodwin-​Gill and Hélène Lambert (eds), The Limits of Transnational Law:  Refugee Law, Policy Harmonization and Judicial Dialogue in the EU (Cambridge University Press 2012) who points out the differing interpretations in different jurisdictions; Francesco Maiani, ‘La Définition de Réfugié Entre

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It is also relevant that there may be important interests at stake for the applicant and states of asylum:  The recognition of someone as a refugee has far-​reaching consequences for the person concerned and for the state granting asylum. Effectively constituting a gatekeeper provision, the grant of refugee status according to Art. 1A(2) Refugee Convention entails a list of rights beyond the most immediate and important aspect of the prohibition of refoulement. For example, some of the less apparent rights include the prohibition of discrimination and the grant of various other human rights, such as the right to work, to education or freedom of religion, set out in Arts. 3 to 34 Refugee Convention.17 States parties, which apply a more generous interpretation of the refugee definition, may fear opening the floodgates and being faced with a higher number of asylum applications.18 In recent times, this fear has led to the refugee definition being interpreted more restrictively by many states.19 States of asylum may also view refugee recognition as a political statement regarding the country of origin, so that divergences in national interpretations are sometimes due to national foreign

17

18 19

Genève, Bruxelles et Berne –​Différences, Tensions, Ressemblances’, Schweizer Asylrecht, EU-​Standards und internationales Flüchtlingsrecht: Eine Vergleichsstudie (Stämpfli Verlag ag 2009) 21–​22 who points out that each state thinks that they have found the one ‘true meaning’; Bruce Burson and David James Cantor, ‘Introduction: Interpreting the Refugee Definition via Human Rights Standards’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​ Martinus Nijhoff Publishers 2016) 7, 11 noting that we are entering a phase of increasing regime-​fragmentation. Andreas Zimmermann and Claudia Mahler, ‘Article 1 A, Para. 2’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Oxford University Press 2011) 313–​314 paras. 73–​74; see also James C Simeon, ‘The Human Rights Bases of Refugee Protection in Canada’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​ Martinus Nijhoff Publishers 2016) 87 noting that 67% of the Refugee Convention’s provisions deal with human rights guarantees for refugees. Kälin (n 16)  615; Francesco Maiani, ‘The Concept of “Persecution” in Refugee Law: Indeterminacy, Context-​Sensitivity, and the Quest for a Principled Approach’, Les dossiers de Jean-​Pierre Cavaillé –​De la persécution (Le Dossiers du Grihl 2010) mn 13, 20. Jose Alvin C Gonzaga, ‘The Role of the United Nations High Commissioner for Refugees and the Refugee Definition’ in Susan Kneebone (ed), The Refugee Convention 50 Years On (Ashgate 2003) 237–​238; for a discussion of the recent example of Australia with its restrictive legislative changes, see Linda J Kirk, ‘Island Nation: The Impact of International Human Rights Law on Australian Refugee Status Determination’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016).

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policy preferences leading to refugee recognition in respect of certain states but not others.20 Against the background of this flexible refugee definition, the question arises whether there is an international body competent to ensure a uniform and authoritative application of the Refugee Convention and its 1967 Protocol. The next subchapter will delineate whether and to what extent the Refugee Convention and its Protocol of 1957 are interpreted by an individual body and if so, if this interpretation is authoritative. Competent Authorities for the Interpretation of the Refugee Convention In contrast to other United Nation (‘UN’) human rights treaties, the Refugee Convention does not provide for the institution of a specific UN Committee with the competence to monitor the Refugee Convention’s implementation or to decide on individual complaints.21 Instead, the drafters of the Refugee Convention decided to entrust the task of settling disputes under the Refugee Convention to the International Court of Justice (‘icj’) according to Art. 38 Refugee Convention. This permits a State party to bring proceedings against another State party for any breach of the Refugee Convention. However, no State party has ever submitted a request for dispute settlement to the icj and such a request would have to concern a dispute between two states. Given that refugee procedures normally do not concern disputes between states, but between an individual and the state, Art. 38 Refugee Convention is likely to remain dead letter law.22 Indeed, the drafters of the Refugee Convention decided to assign a supervisory function over the Refugee Convention to the UN High Commissioner

2

20

21 22

Hugo Storey, ‘Persecution: Towards a Working Definition’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on Migration and International Law (Edward Elgar Publishing 2014) 459–​460 referring to examples such as Europe’s welcoming of Hungarian and Czech but not Indo-​Chinese refugees and the US’s welcoming of Cuban but not Haitian refugees; see also ‘The Humanitarian Caste System?’ IRIN News (30 September 2015)  referring to Syrian refugees as everyone’s favourite refugees at the moment. Hathaway and Foster (n 15) 3; see also Al-​Sirri v Secretary of State for the Home Department [2012] uksc 54 (UK Supreme Court) at para. 36 (per Lady Hale and Lord Dyson). Kälin (n 16) 653 notes that unhcr could ask a State party to bring a case against another State party based on its supervisory function under Art. 35 Refugee Convention; however, Geoff Gilbert, ‘unhcr and Courts:  Amicus Curiae … Sed Curia Amica Est?’ 28 International Journal of Refugee Law 623, 625 points out that the likelihood of this happening seems ‘very remote’.

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for Refugees (‘unhcr’) according to Art. 35 Refugee Convention (as reiterated in Art. ii of the 1967 Protocol and in line with its mandate under para. 8(a) of the unhcr Statute to conclude treaties for the protection of refugees and supervise their functioning).23 The unhcr was established by the UN General Assembly in 1950 and took up its work on 1 January 1951.24 It is tasked with ‘supervising the application of the provisions’ of the Refugee Convention and ‘States undertake to co-​operate’ with the unhcr and to ‘facilitate its duty of supervising the application’ of the Refugee Convention (Art. 35(1) Refugee Convention).25 In particular, states are under an obligation to provide unhcr with information and statistical data on the implementation of the Refugee Convention (Art. 35(2) Refugee Convention).26 Apart from the supervision of state practice, unhcr’s supervisory function extends to other activities, such as unhcr’s daily protection work or the facilitation of cooperation of States parties with the unhcr and amongst States parties.27 The first High Commissioner for Refugees considered that Art. 35 ‘would be of particular value in facilitating the uniform application of the Convention’.28 However, while unhcr’s supervisory function pursuant to Art. 35(1) Refugee Convention was ‘innovative at the time’, it has been noted that it ‘appears to suffer the drawbacks of being one of the first external supervisory mechanisms in that it is of a rather rudimentary nature … when compared to the supervisory mechanisms of human rights treaties’.29 For unhcr’s supervisory function does not include a mandate to provide an authoritative interpretation of the

23

Statute of the Office of the United Nations High Commissioner for Refugees, Annex to unga Res. 428 (V), 14 Dec. 1950, as amended by subsequent unga Resolutions, for an overview see Mike McBride, ‘Anatomy of a Resolution: the General Assembly in UNHCR History’, PDES Working Papers, Research Paper No. 182 (December 2009). 24 Statute of the Office of the United Nations High Commissioner for Refugees, Annex to unga Res. 428 (v), 14 Dec. 1950 (‘unhcr Statute’). 25 Art. ii(1) of the 1967 Protocol contains the same obligations as Art. 35(1) Refugee Convention. 26 See also Art. 2(h) of the unhcr Statute, which calls upon governments to provide the unhcr ‘with information concerning the number and condition of refugees, and laws and regulations concerning them’. 27 Kälin (n 16) 615; see also preambular para. 6 of the Refugee Convention, which expressly provides that ‘the effective co-​ordination of measures taken to deal with this problem will depend upon the co-​operation of States with the High Commissioner’. 28 Conference of Plenipotentiaries, un Doc A/​c onf.2/​s r.2, 17, Statement by Mr G.  van Heuven-​Goedhardt, cited in Kälin (n 16) 617; also cited in Marjoleine Zieck, ‘Article 35/​ Article II’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011) 1508 fn 287. 29 Zieck (n 28) 1508 mn 91.

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Refugee Convention,30 nor does it provide for a mandate to enforce compliance in case of contraventions or violations of the Refugee Convention.31 As part of its supervisory function, the unhcr has issued its Handbook on Procedures and Criteria for Determining Refugee Status, and regularly issues eligibility guidelines on protection criteria relating to specific countries of origin as well as international protection guidelines, which are legal position papers.32 However, these unhcr positions are not legally binding upon States parties.33 Rather, they are intended to provide interpretative guidance for governments, legal practitioners, decision-​makers and the judiciary, as well as unhcr staff.34 They seek to reflect state practice,35 and are often taken into account in the case law of the States parties as evidence of unhcr’s interpretation of the Geneva Convention. Domestic courts recognise that disregard of, or departure from, unhcr guidelines calls for justification in light of unhcr’s supervisory role,36 and that they should be given ‘considerable weight’.37 In addition to the unhcr, the UN Economic and Social Council has set up the unhcr Executive Committee (‘unhcr ExCom’), an advisory body consisting of representatives from UN member states and members of specialised agencies, who are selected on the basis of their ‘demonstrated interest in and devotion to the solution of the refugee problem’.38 Membership now comprises 30 31 32

33 34 35

36 37

38

Jane McAdam, ‘Interpretation of the 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011); Burson and Cantor (n 16) 7. Zieck (n 28) 1499 mn 75. unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​1P/​4/​e ng/​r ev 3, December 2011)  the various country-​specific eligibility guidelines and legal position papers of unhcr can be found on . Kälin (n 16) 627; Zimmermann and Mahler (n 17) 79; Zieck (n 28) 1497 mn 68. Zieck (n 28) 1495 mn 67 and fn 204 pointing out that this phrase is repeated in the preface of each of the unhcr Guidelines on International Protection. Katie O’Byrne, ‘Is There a Need for Better Supervision of the Refugee Convention?’ 26 Journal of Refugee Studies 330, 339; Gilbert (n 22)  628 comments that unhcr would ‘undoubtedly draw from case law … those elements that best allow it to argue for the broadest understanding of the international protection of refugees’. Kälin (n 16) 627; Brian Goodman, ‘The IRB’s Relationship with the unhcr’ in James C Simeon (ed), The UNHCR and the Supervision of International Refugee Law (Cambridge University Press 2013) 102; McAdam (n 30) 111 mn 111–​114, and 114 mn 122; 113 mn 119–​120. Al-​Sirri v Secretary of State for the Home Department (n 21)  at para. 36 (per Lady Hale and Lord Dyson); see also R v Asfaw [2008] 2 wlr 1178 (UK House of Lords) at para. 13 (per Lord Bingham); and R v Uxbridge Magistrates Court & Anor, ex p Adimi [1999] ewhc Admin 765 (High Court of England and Wales). See Art. 4 of the Statute of the Office of the United Nations High Commissioner for Refugees, Annex to unga Res. 428 (v), 14 Dec. 1950; UN Economic and Social Council

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25

106 states and extends beyond membership of the Refugee Convention.39 unhcr ExCom regularly issues conclusions (‘ExCom Conclusions’) on legal and policy matters.40 unhcr ExCom Conclusions provide soft law guidance on the Refugee Convention,41 but are not legally binding.42 While the precise interpretative status of unhcr positions in relation to the interpretation of the Refugee Convention remains unclear,43 neither unhcr nor unhcr ExCom are entitled to provide an authoritative interpretation of the definition of ‘refugees’. The relatively flexible refugee definition in the Refugee Convention is left to the interpretation at the hands of any given decision-​maker according to the international law rules of interpretation. This means that state practice –​the decisions of domestic authorities and courts –​acquires particular importance in the interpretation of the Refugee Convention.44 In addition, regional courts, such as the Court of Justice of the European Union (‘cjeu’), may inform the interpretation of the Refugee Convention, as will also be further discussed below in subchapters C and D. The next subchapter will consider the fundamental question whether the Refugee Convention together with the 1967 Protocol are to be interpreted as static instruments or whether they are subject to a dynamic or evolutionary interpretation. (ecosoc), UN Economic and Social Council Resolution 672 (xxv):  Establishment of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, 30 April 1958, E/​RES/​672 (xxv); UN General Assembly, UN General Assembly Resolution 1166 (xii): International assistance to refugees within the mandate of the United Nations High Commissioner for Refugees, 26 November 1957. 39 See unhcr ExCom, Executive Committee’s membership by year of admission, . 40 A thematic compilation of these is accessible on the unhcr’s website, see: unhcr, A Thematic Compilation of Executive Committee Conclusions . 41 O’Byrne (n 35) 339; their weight is disputed: Hathaway and Foster (n 15) 10 argue that such Conclusions are reached without active deliberation; Gilbert (n 22) 636 argues that they carry ‘great weight’ due to the broad membership of the ExCom and the fact that they are reached by consensus; but they seem to be less frequently referred to than the unhcr Handbook or Guidelines Kälin (n 16) 625–​627. 42 Zieck (n 28) 1497 mn 69; they may however contribute to the formulation of opinio juris in relation to international refugee law, as they are debated by states and are considered as having higher status than unhcr Guidelines, see McAdam (n 30) 112–​113 mn 117. 43 Goodwin-​Gill (n 16) 218 and see further Chapter ii.C below. 44 Hathaway and Foster (n 15) 3.

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3 Static and Evolutionary Approach to Interpretation One of the fundamental questions in treaty interpretation is whether a treaty needs to be interpreted in a static or in an evolutionary manner.45 A static approach to treaty interpretation proceeds on the basis that the treaty is to be interpreted against the circumstances prevailing at the time of the treaty’s original conclusion. Its terms are given the meaning they would have possessed at that point in time.46 On the other hand, the evolutionary approach to treaty interpretation interprets the terms of a treaty in light of the current circumstances, as they prevail at the time of the treaty interpretation.47 The rules of interpretation under the vclt do not stipulate whether a treaty should be interpreted in a static or in an evolutionary manner.48 Rather, the various individual interpretive elements under Arts. 31 and 32 vclt, such as the intention of the drafters as evidenced by the terms, the context, the object and purpose and where necessary the preparatory work of the treaty, may indicate the approach to be taken.49 The evolutionary or static approach to treaty interpretation is thus not a means of interpretation, but rather a result of it.50 While it is sometimes argued that an evolutionary interpretation of a treaty is simply a teleological one –​one that gives precedence to the object and

45

46 47 48 49

50

The present thesis will use the word ‘evolutionary’ rather than ‘evolutive’, ‘evolutional’, ‘dynamic’ or ‘progressive’, which are all used interchangeably, see further Christian Djeffal, Static and Evolutive Interpretation:  A Functional Reconstruction (Cambridge University Press 2016) 20. Oliver Dörr, ‘Article 31:  General Rule of Interpretation’ in Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties (Springer Verlag 2012) 533 mn 23. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 533 mn 23. Dörr, ‘Article 31:  General Rule of Interpretation’ (n 46)  533 mn 23 notes that the International Law Commission eventually decided to omit this from Arts. 31–​33 vclt. UN General Assembly, International Law Commission, Fragmentation of International Law:  Difficulties Arising from the Diversification and Expansion of International Law  –​ Report of the Study Group of the International Law Commission (13 April 2006) 219; Michelle Foster, International Refugee Law and Socio-​Economic Rights  –​Refuge from Deprivation (Cambridge University Press 2009) 61; Djeffal (n 45) 33–​35. Djeffal (n 45)  22; referring to Georg Nolte, ‘Between Contemporaneous and Evolutive Interpretation:  The Use of “Subsequent Practice” in the Judgment of the International Court of Justice Concerning the Case of Costa Rica v. Nicaragua’ in Holger P Hestermeyer and others (eds), Coexistence, Cooperation and Solidarity (2  vols.) Liber Amicorum Rüdiger Wolfrum (Brill/​Martinus Nijhoff Publishers 2009)  1683; see also Georg Nolte, ‘Report 2:  Jurisprudence Under Special Regimes Relating to Subsequent Agreements and Subsequent Practice’ in Georg Nolte (ed), Treaties and Subsequent Practice (Oxford University Press 2013) 245–​246.

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purpose of the treaty –​51 or an effective one,52 courts in practice use various different methods of interpretation as a basis for an evolutionary interpretation. For instance, the European Court of Human Rights (ECtHR) first relies on context, secondly on subsequent practice, thirdly on relevant rules of international law and in the fourth place on ordinary meaning for an evolutionary interpretation and only refers to the object and purpose of the echr in the fifth place when applying an evolutionary approach.53 In addition, the question whether a treaty provision is subject to a static or an evolutionary interpretation is also decided by reference to further factors. One of these is the structure of the treaty. It is pertinent whether the treaty is subject to a permanent judicial process permitting one or several courts to interpret a treaty dynamically, whether it is a multilateral treaty and whether it is of a long or unlimited duration.54 Furthermore, the nature of the provision or the treaty is relevant. For instance, while a static interpretation of treaties may be considered the general rule, especially human rights treaties are normally interpreted in an evolutionary manner.55 For human rights treaties are considered to fall into a special category of multilateral treaties. Taking account of evolving circumstances, human rights treaties are subject to an evolutionary interpretation.56 The next subchapter will consider the applicability of the vclt rules of interpretation to the Refugee Convention and their impact on an interpretation of the refugee definition. It will further consider whether the Refugee Convention should be interpreted in an evolutionary manner taking account of a contemporaneous human rights treaty such as the crpd. Notably, the crpd 51

See e.g. James R Crawford, Brownlie’s Principles of Public International Law (Oxford University Press 2012) 379, referred to in Djeffal (n 45) 32. 52 See e.g. Christoph Grabenwarter and Katharina Pabel, Europäische Menschenrechtskonvention (Helbing Lichtenhahn Verlag 2012) 36; Djeffal (n 45) 30–​32. 53 Djeffal (n 45) 356. 54 Djeffal (n 45) 32–​33. 55 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 533–​535 mn 23–​27; Djeffal (n 45) 33; Foster (n 49) 59–​60. 56 Volker Türk, ‘Non-​State Agents of Persecution’ in Vincent Chetail and Vera Gowlland-​ Debbas (eds), Switzerland and the International Protection of Refugees (Kluwer Law International 2002) 104; Storey (n 20) 468; Djeffal (n 45) 33, referring to Rosalyn Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 International and Comparative Law Quarterly 501, and Rosalyn Higgins, ‘Some Observations on the Inter-​Temporal Rule in International Law’, Themes and Theories (Oxford University Press 2009); but see critically on the role of judges in this context Samantha Besson, ‘Legal Philosophical Issues of International Adjudication –​Getting over the Amour Impossible between International Law and Adjudication’ in Cesare PR Romano, Karen J Alter and Chrisanthi Avgerou (eds), The Oxford Handbook on International Adjudication (Oxford University Press 2013).

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was adopted decades after the Refugee Convention’s entry into force and could only be considered in the interpretation of the Refugee Convention through an evolutionary approach. C

Interpretation of the Refugee Definition according to the vclt

Applicability of the vclt (Art. 4 vclt) 1 Art. 4 vclt sets out the temporal scope of application of the vclt. It stipulates that the vclt only applies to treaties which have been concluded after the vclt’s entry into force. The vclt entered into force on 27 January 1980. The Refugee Convention, however, entered into force long before on 22 April 1954 and the 1967 Protocol also entered into force prior to the vclt’s entry into force, namely on 4 October 1967. However, even if treaties have been concluded prior to the vclt, those provisions of the vclt which represent customary international law at the time of interpretation apply (Art. 4 vclt). It is irrelevant whether the vclt rules became customary international law before, upon, or after the conclusion of the treaty that is to be interpreted.57 The majority of the vclt rules of interpretation already represented customary international law at the time of its drafting.58 The jurisprudence of international courts59 and the diplomatic practice 57

58

59

Anthony Aust, Modern Treaty Law and Practice (3rd edn, Cambridge University Press 2013) 9; Frédéric Dopagne, ‘Article 4 –​Non-​Retroactivity of the Present Convention’, The Vienna Convention on the Law of Treaties –​A Commentary, vol I (Oxford University Press 2011) 84; Mark E Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers 2009) 110–​111. Aust (n 57)  10–​11; Kirsten Schmalenbach, ‘Article 4:  Non-​Retroactivity of the Present Convention’ in Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties (Springer Verlag 2012)  84–​85 mn 4–​6; Dörr, ‘Article 31:  General Rule of Interpretation’ (n 46) 523 mn 6; it was the stated aim of the International Law Commission to codify existing principles of customary international law when drafting the vclt, see International Law Commission, ‘Report of the International Law Commission on the Second Part of Its Seventeenth Session and on Its Eighteenth Session’, Yearbook of the International Law Commission, 1966, vol. ii 218–​219 mn 4–​5; see also Richard Gardiner, ‘The Vienna Convention Rules on Treaty Interpretation’ in Duncan B Hollis (ed), The Oxford Guide to Treaties (Oxford University Press 2012) 477. Case Concerning Kasikili/ Sedudu Island (Botswana v Namibia) ICJ Reports 1999, 1045 (icj) 1059 at para. 18 (where the icj relied on Art. 31 vclt as customary law because of Art. 4 vclt); Guinea Bissau v Senegal Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) ( Judgment) icj Reports 1991, 53 (icj) at para. 48 (in relation to Arts. 31 and 32 vclt); see also Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) ( Judgment) icj Reports 2002, 625 (icj) at para. 37; Case Concerning Armed Activities on Territory of Congo (Democratic Republic of Congo v Uganda) icj Reports 2005, 168 (icj) at para. 125;

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of states60 also confirms the customary international law character of the vclt rules of interpretation. The ilc has more recently confirmed that the rules of interpretation in Arts. 31 and 32 vclt are widely assumed to reflect customary international law, even if the vclt is not an exhaustive statement of interpretive techniques, leaving out other rules of interpretation, such as lex specialis or lex posterior.61 Since Arts. 31 and 32 vclt can be considered customary international law, their application with regards to the Refugee Convention is particularly relevant. In the context of the Refugee Convention, domestic courts have also accepted that Arts. 31 and 32 vclt form the basis of its interpretation.62 Thus, the following analysis will proceed on the basis that the vclt rules of interpretation reflect principles of customary international law that are applicable to the Refugee Convention, as has been done by other refugee law commentators.63 2 One Rule of Interpretation and Good Faith (Art. 31(1) vclt) Art. 31(1)-​(3) vclt sets out the ‘General Rule of Interpretation’ as follows: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context:

60 61 62

63

Gabčikovo-Nagymaros Project (Hungary v Slovakia) ( Judgment) icj Reports 1997, 7 (icj) at para. 99; Oil Platforms (Iran v US) (Merits) ( Judgment) icj Reports 2003, 161 (icj) at para. 41 (regarding Art. 33 vclt); Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 524–​525 mn 6 with further references. Aust (n 57) 10; Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 525 mn 7. UN General Assembly, International Law Commission (n 49) 215. See e.g. Attorney-​General v Zaoui and Inspector-​General of Intelligence and Security [2006] 1 nzlr 289 (Supreme Court of New Zealand) at para. 24; European Roma Rights Centre & Ors, R (on the application of ) v Immigration Officer at Prague Airport & Anor [2004] ukhl 55 (UK House of Lords) at para. 18 (per Lord Bingham), at para. 43 (per Lord Steyn), at para. 63 (per Lord Hope). See e.g. Hathaway and Foster (n 15) 5 Fn 23; Mark Symes and Peter Jorro, Asylum Law and Practice (2nd edn, Bloomsbury Professional 2010) 18–​19 with further references from UK case law.

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(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties.

[…] This general rule of interpretation requires taking account of the wording, context and object and purpose as well as the guiding principle of good faith, all of which constitute ‘integral parts of that rule and have to be applied in a single combined operation’.64 But Art. 31(1) vclt is not as firm and inflexible as to impose a strict requirement.65 Rather, interpretation is more akin to an ‘art, not an exact science’.66 All of the elements of Art. 31 subparagraphs (1) to (3) form part of one rule and there is no hierarchy or trump of one subparagraph over the others.67 In this context, the principle of good faith plays an important role by providing for a ‘fundamental requirement of reasonableness’ and cautioning against excessively literal or teleological interpretations.68 The principle of good faith is a basic principle governing the creation and performance of legal obligations, but it does not create legal obligations where none would otherwise exist.69 Rather, it simply flows from the principle of pacta sunt servanda.70 In the context of the Refugee Convention, Goodwin-​Gill as well as Hathaway and Foster have pointed out that an evolutionary interpretation follows

64 65 66 67 68 69

70

Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 523 mn 5; see also Hathaway and Foster (n 15) 7. Gardiner (n 58) 480. International Law Commission, ‘Reports of the Commission to the General Assembly’, Yearbook of the International Law Commission, 1964, vol. ii 200 mn 5. Aust (n 57) 208; Gardiner (n 58) 481. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 548 mn 61. Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility, Judgment icj Reports 1988, 69 (icj) at para. 94; Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment 1998 icj Reports 275 (icj) para. 39; European Roma Rights Centre & Ors, R (on the application of ) v Immigration Officer at Prague Airport & Anor (n 62) para. 19 (per Lord Bingham), para. 58 (per Lord Hope); R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2012] uksc 12 (UK Supreme Court) at para. 31 (per Lord Hope). Aust (n 57) 208.

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from the principle of good faith in treaty interpretation.71 Multilateral conventions, like the Refugee Convention, may require an interpretation in good faith, which is ‘more particularly in harmony with changed circumstances and evolving understanding’.72 3 Ordinary Meaning (Art. 31(1) vclt) Consideration of the ordinary meaning is the first step set out in Art. 31(1) vclt. The text is an obvious starting point and is likely to reflect what the parties to the treaty intended when drafting it,73 ‘in the light of the surrounding circumstances’.74 Accordingly, the ordinary meaning of a word or an expression is often ambiguous and depends on context. It has been emphasised that ‘there is commonly no single “ordinary” meaning of a word’, which makes it necessary to look to context and object and purpose.75 Indeed, the wording of Art. 31(1) –​the ordinary meaning ‘to be given’ to the terms of a treaty in light of the context and object and purpose –​implies that it is a qualified ‘ordinary meaning’; it is the ordinary meaning that can be given when taking account of the various interpretative principles and elements.76 Too literalist an approach would thus be misguided.77 The ordinary meaning constitutes the first interpretative element that may indicate whether an evolutionary or a static interpretation is appropriate.78 Where the parties have chosen terms, which are not static but evolutionary or generic in nature and whose content will change through time, they ‘presumably intended [the term] to be given its meaning in light of the circumstances prevailing at the time of interpretation’.79 The icj held in the Namibia Opinion

71

72 73 74 75 76

77 78 79

Goodwin-​Gill (n 16) 216–​217; Hathaway and Foster (n 15) 6; referring to Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) icj Reports 1971, 16 (icj); Gabčikovo-Nagymaros Project (Hungary v Slovakia) (n 59) paras. 114–​115. Goodwin-​Gill (n 16) 216–​217. Aust (n 57) 209. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 522 mn 3; quoting Lord McNair, The Law of Treaties (Oxford University Press 1961) 365. Gardiner (n 58) 480. Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) ( Judgment) icj Reports 1992, 351 (icj) 719 (Separate Opinion of Judge Torres Bernárdez); see also Constitution of the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization (IMCO) (Advisory Opinion) ICJ Rep 1960, 150 (ICJ) 158; Certain Expenses of the United Nations (Advisory Opinion) icj Reports 1962, 151 (icj) 184 (Separate Opinion of Judge Spender). Hathaway and Foster (n 15) 8. Djeffal (n 45) 29. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 533–​534; UN General Assembly, International Law Commission (n 49) 242; see also Djeffal (n 45) 29; Gardiner (n 58) 173.

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that the question was whether relevant terms are ‘by definition, evolutionary’.80 In that case, the icj considered the terms ‘well-​being and development’, ‘sacred trust’ and ‘strenuous conditions of the modern world’ evolutionary.81 Thus where a generic term is used, there is a presumption that ‘its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law in force at any given time’.82 On the other hand, where static terms are used, the ordinary meaning would be defined by reference to the time of the treaty’s conclusion.83 In the context of the Refugee Convention, Storey notes that the lack of a more precise definition of ‘persecution’ and the ‘generally minimalist provisions of Article 1A(2) as a whole, leaving indeed all its key terms undefined’ allows for an evolutionary interpretation so that the refugee definition ‘could over time broaden out to encompass non-​state and individualized iniquities yet to be inflicted’.84 As has been set out above in Chapter ii.B.1, various elements of the refugee definition are vague and flexible. Similarly Maiani observes that the lack of precision in the refugee definition is a strong indication in favour of an evolutionary approach to interpretation.85 The ordinary meaning of the refugee definition thus supports an evolutionary interpretation which adapts to changing circumstances. Indeed, courts around the world have recognized that the language of the Refugee Convention is but a ‘starting point’, the meaning of which can only be found by reference to the context and the purpose of the Refugee Convention.86 The Australian High Court (Kirby J) stated in Singh that the ‘opacity of the language may have been intentional. It might represent the outcome of international negotiations where different States parties were seeking to expand, or restrict, the humanitarian obligations of the Convention

80 81 82 83 84 85 86

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) (n 71) at paras. 31–32. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) (n 71) at para. 53. Aegean Sea Continental Shelf Case (Greece v Turkey) ( Judgment) icj Reports 1978, 3 (icj) at para. 77; see also Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) ( Judgment) icj Reports 2009, 213 (icj) at para. 66. Djeffal (n 45) 29. Storey (n 20) 459; see also Maiani (n 16) 25 in the context of the term ‘persecution’. Maiani (n 16) 25, referring to unhcr (n 32) paras. 52–​53, and unhcr, ‘The International Protection of Refugees: Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ April 2001 . R v Secretary of State for the Home Department, ex p Adan [1998] Imm ar 338 (UK House of Lords); Applicant A v Minister for Immigration and Ethnic Affairs High Court of Australia [1997] hca 4; Refugee Appeal No 74665 [2005] nzar 60 (New Zealand rsaa).

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to the constantly changing conditions in which it is invoked’.87 The UK Court of Appeal further stated in relation to the Refugee Convention that it was ‘a common phenomenon of reaching political agreement that it is easier to reach agreement on imprecise wording’ and the courts had to do ‘what they can with the wording that they have got’.88 Similarly, the UK House of Lords held in Adan that less emphasis should be placed on the wording of Art. 1A(2) Refugee Convention alone and instead the meaning should be determined by reference to the ‘Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve’.89 In Ward, the Supreme Court of Canada also did not limit itself to a textual interpretation of the Refugee Convention, but considered object and purpose together with text.90 Hathaway has therefore stressed that the focus in interpreting the Refugee Convention is ‘an understanding of the text of the treaty, but text must be interpreted in context and purposively, rather than literally’.91 In conclusion, the ordinary meaning of the open-​ended refugee definition supports an evolutionary interpretation, but this also needs to be assessed against the context and the object and purpose of the refugee definition. Context (Art. 31(1) vclt) 4 The context of a treaty provision is the first aid to interpretation of the text of a treaty. Context refers to the entire text of the treaty, including its title, preamble, annexes and protocols to it, as well as the systematic position of the phrase within the entire text.92 Contextual considerations are often very specific to the term that is being interpreted, for instance the question whether the same word appears in another provision of the treaty and its meaning there. However, certain contextual considerations are of a more general nature and can be considered here in the context of the refugee definition as a whole. First, the full title of the Refugee Convention is ‘Convention relating to the Status of Refugees’ indicating its focus on the status of refugees, their rights, in international law. This title confirms that the refugee definition is the basis –​the gatekeeper provision –​for most of the remaining provisions of the

87 88 89 90 91 92

Minister for Immigration and Multicultural Affairs v Singh [2002] hca 7 (High Court of Australia) at para. 101. Montoya v SSHD [2002] ewca Civ 620 (UK Court of Appeal), para 4. R v Secretary of State for the Home Department, ex p. Adan (n 86) (per Lord Lloyd). Carlier (n 12) 67. James C Hathaway, The Rights of Refugees (Cambridge University Press 2005)  51–​53; Hathaway and Foster (n 15) 5 fn 24. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 543.

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Refugee Convention declaring who is entitled to the catalogue of refugee rights contained therein. Further, the Preamble to the Refugee Convention constitutes important context for the interpretation of the refugee definition.93 It pertinently includes the following recitals: considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms, considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and protection accorded by such instruments by means of a new agreement, considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-​operation, expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States, noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-​ ordination of measures taken to deal with this problem will depend upon the co-​operation of States with the High Commissioner … On the one hand, the Preamble to the Refugee Convention refers to the promotion of the Universal Declaration of Human Rights (‘udhr’)94 and to the ‘widest possible exercise’ of human rights by refugees. On the other, it refers to sharing the ‘unduly heavy burdens’, which the grant of asylum may place on 93 Hathaway, The Rights of Refugees (n 91) 53–​54; McAdam (n 30) 95 mn 57; Hathaway and Foster (n 15) 9. 94 udhr, UN General Assembly Resolution 217 A (iii), 10 December 1948.

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certain countries and the principle of solidarity among states. Both of these aspects constitute goals of the Refugee Convention and these preambular recitals will be considered further in the next subchapter as sources for the determination of the object and purpose of the Refugee Convention. Courts and commentators interpreting the refugee definition regularly rely on the Preamble in their interpretation of the Refugee Convention. Based on the preambular recital referring to the udhr and the widest possible enjoyment of human rights, reference is regularly made to international human rights law. For instance, Brennan CJ of the High Court of Australia relied on the Preamble in order to demonstrate the Refugee Convention’s character as a human rights treaty in Applicant A:95 the preamble places the Convention among the international instruments that have as their object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms. Indeed, the Preamble constitutes a further element supporting an evolutionary approach which takes account of current international human rights law. For instance, Carlier points to the first paragraph of the Preamble of the Refugee Convention and relies on the use of the udhr as a guide to the interpretation of refugee rights in light of international human rights standards.96 Hathaway and Foster also refer to context as a basis for an evolutionary interpretation of the Refugee Convention and specifically rely on the Preamble as evidence of the object and purpose (on this, see further below in the next subchapter).97 Thus, the preambular context of the Refugee Convention is a further indicator that the Refugee Convention as a human rights treaty must be interpreted in an evolutionary manner and in light of prevailing human rights norms, confirming the human rights approach set out further below in subchapter D.

95 96 97

Applicant A v Minister for Immigration and Ethnic Affairs (n 86) 231–​232 (per Brennan cj). Carlier (n 12)  76; referring to Gudmundur Alfredsson and Asbjørn Eide (eds), The Universal Declaration of Human Rights : A Common Standard of Achievement (Martinus Nijhoff Publishers 1999). Hathaway and Foster (n 15) 9–​10. However, their reliance on the Final Act as evidence of context supporting an evolutionary interpretation, specifically on the passage in the Final Act that the Refugee Convention should have value ‘exceeding its contractual scope’, cannot, as suggested by the authors, be read to extend the contractual scope of the Refugee Convention, see also further below, Chapter ii.C.6. Further, their reliance here on the 1967 Protocol also seems misguided, as this is subsequent agreement, see further Chapter ii.C.7 below.

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5 Object and Purpose (Art. 31(1) vclt) The object and purpose of a treaty is a further factor to be taken into account when considering the ordinary meaning of a treaty provision. Object and purpose are normally read together as a single test as opposed to two separate tests, one of object (contents of the treaty) and purpose (aim of the treaty).98 The object and purpose of a treaty can be found in the travaux préparatoires,99 the preamble, the title, a provision of a treaty, or the type of the treaty.100 However, too heavy a reliance on just the travaux préparatoires is unwarranted, given that they in fact constitute a supplementary means, and not a primary means of interpretation according to Art. 32 vclt.101 The analysis of the object and purpose of a treaty should ensure the treaty’s effectiveness in ‘its modern social and legal setting’.102 In addition, the rule of good faith should act as a bar to introducing an object and purpose which is alien to the treaty.103 This is also sometimes referred to as the principle of effectiveness in treaty interpretation.104 Where a human rights treaty is being interpreted, the object and purpose of the treaty clearly speak in favour of an evolutionary rather than static interpretation. The object and purpose of a human rights treaty –​the protection of human rights in light of contemporary challenges –​would be undermined by a static interpretation.105 In the case of the Refugee Convention, the object and purpose is articulated in its title and its Preamble.106 As set out above, the Refugee Convention presents several goals in its Preamble. On the one hand, it defines the promotion of the udhr and the widest possible enjoyment of human rights by refugees 98 99 100 101

Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 546 mn 55. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 578 mn 21. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 546 mn 56. McAdam (n 30)  93 mn 50; criticising the heavy reliance on the drafting history in Hathaway, The Rights of Refugees (n 91)  56; and see the more cautious reliance on the drafting history in Hathaway and Foster (n 15) 11. 102 Hathaway, The Rights of Refugees (n 91) 55; see also Hathaway and Foster (n 15) 6; Kirk (n 19) 55. 103 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 546 mn 56. 104 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 545 mn 53. 105 Bruno Simma, ‘Consent:  Strains in the Treaty System’ in Ronald StJ MacDonald and Douglas Millar Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Martinus Nijhoff Publishers 1983) 497. 106 Hathaway and Foster (n 15) 10 fn 65; referring to Guinea Bissau v Senegal Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) ( Judgment) (n 59) at 142 (Judge Weeramantry’s Dissenting Opinion), dissenting on another matter, that the Preamble is the ‘principal and natural source from which indications’ on a treaty’s object and purpose can be gathered; see also Symes and Jorro (n 63) 121 mn 3.3.

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as one aim, the humanitarian aim. On the other, it refers to the importance of state cooperation in light of the burden that asylum may place on States parties, the burden-​sharing aim.107 When treaties have several goals, the one which ‘conforms best with the grammatical and systematic considerations on the term in question’ ought to prevail.108 Hathaway and Foster interpret the second aim as one that is subordinate to the first, in that the Preamble refers to the ‘importance of solving an international problem through state cooperation in a manner that promotes “the widest possible exercise of … fundamental rights and freedoms” ’.109 Foster elaborates that the focus of the Refugee Convention is on ‘the need for co-​operation in order adequately to deal with the humanitarian problem’.110 Goodwin-​Gill and McAdam also conclude that the Refugee Convention has a protection-​oriented objective.111 This interpretation of object and purpose is also confirmed by unhcr and by the jurisprudence of domestic courts. unhcr states in its International Protection Guidance on the interpretation of Art. 1 Refugee Convention that ‘[a]‌close reading of the preamble leads to the conclusion that the object and purpose of the instrument is to ensure the protection of the specific rights of refugees, to encourage international cooperation in that regard, including through unhcr, and to prevent the refugee problem from becoming a cause of tensions between states’.112 It continues by referring to the ‘strong human rights language’ in the Preamble and concludes from this:113 These precepts indicate the aim of the drafters to incorporate human rights values in the identification and treatment of refugees, thereby providing helpful guidance for the interpretation, in harmony with the Vienna Treaty Convention, of the provisions of the 1951 Convention. As regards domestic case law, Bastarache J of the Canadian Supreme Court held for instance in Pushpanathan that the ‘overarching and clear human rights object and purpose is the background against which interpretation of 107 McAdam (n 30) 91 mn 4350; Gonzaga (n 19) 240; unhcr (n 85) 1 mn 3 further refers to a third aim of preventing the refugee problem from becoming a cause of tensions between states. 108 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 546 mn 55. 109 Hathaway and Foster (n 15) 10. 110 Foster (n 49) 44. 111 Guy Goodwin-​Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2007) 54. 112 unhcr (n 85) at para. 3. 113 unhcr (n 85) at para. 4.

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individual provisions must take place’.114 The High Court of Australia has also stated that the chief object of the Refugee Convention is ‘to impose obligations on the signatories to the Convention to provide protection and equality of treatment for the nationals of countries who cannot obtain protection from their own country’.115 The Australian High Court has accepted that the preamble of the Refugee Convention indicates that the Convention has as its object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms.116 The UK House of Lords held in Shah that the Preamble to the Refugee Convention demonstrated two things: firstly, that it was a premise of the Convention that ‘all human beings shall enjoy fundamental rights and freedoms’, and secondly, that ‘counteracting discrimination … was a fundamental purpose of the Convention’.117 The UK Supreme Court stated more recently that the Refugee Convention ‘should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble’, while at the same time not going beyond what the parties to it agreed.118 It therefore appears that in the context of the refugee definition in Art. 1A(2) Refugee Convention, the human rights goal is widely considered to be the one which conforms best to the grammatical and systematic considerations. The refugee law regime’s protective objective justifies a wide, rather than narrow, interpretation of the refugee definition in Art. 1A(2) Refugee Convention. As Goodwin-​Gill and McAdam point out a ‘liberal interpretation of the criteria and a strict application of the limited exceptions are called for’.119 In fact, the goal of international refugee law is quite different from that of the 114 Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 scr 982 (Supreme Court of Canada); see also Canada (Attorney General) v Ward [1993] 2 scr 689 (Supreme Court of Canada) 733 stating that the objective of the Refugee Convention is ‘the international community’s commitment to the assurance of basic human rights’. 115 S152, para. 53 (per McHugh J) cited in McAdam 92 mn 47. 116 Minister for Immigration and Multicultural Affairs v Respondents S152/​2003 (2004) 205 alr 487 (High Court of Australia) at para. 53, cited in McAdam (n 30) 92 mn 47; the protection of the equal enjoyment by every person of fundamental rights and freedoms as object and purpose of the Refugee Convention has generally been accepted in Australian case law, see e.g. Applicant A v Minister for Immigration and Ethnic Affairs (n 86), per Brennan cj; Minister for Immigration and Multicultural Affairs v Khawar (n 14), per Kirby J; NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] hca 29 (High Court of Australia) at paras. 108–​109. 117 Islam v SSHD; R v IAT, ex p Shah [1999] 2 ac 629 (UK House of Lords) 639 (per Lord Steyn). 118 R (on the application of ST (Eritrea)) v Secretary of State for the Home Department (n 69) at paras 30–​31 (per Lord Hope). 119 Goodwin-​Gill and McAdam (n 111) 54.

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international penal regime.120 As opposed to international criminal law, international refugee law’s purpose is not to punish or prosecute states.121 As Zimmermann and Mahler point out, the overall object and purpose of the Refugee Convention is protection-​oriented and not aimed ‘at preventing or punishing particular kinds of acts of the persecutor committed with a certain underlying motivation’.122 The humanitarian objective of the Refugee Convention is a further clear indicator of an evolutionary interpretation of the refugee definition, which takes account of changing circumstances and current humanitarian challenges. 6 Contemporaneous Context (Art. 31(2) vclt) In addition to the internal context of a treaty set out in the subchapter above, context includes ‘any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’ and ‘any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’ (Art. 31(2)(a) and (b) vclt). Such contemporaneous context does not only cover written agreements, but also unwritten agreements, to which acceptance can also be given tacitly or informally.123 In order to constitute contemporaneous context, an agreement or instrument needs to meet the following criteria: i) it must have been ‘drawn up or accepted’ by all the parties and constitute a general consensus; ii) it must be borne by all ‘parties’ to the treaty; iii) it must relate to the substance of the treaty; and iv) there has to be a certain temporal proximity to the conclusion of the treaty, albeit not being contemporaneous as context set out in Art. 31(1)(a) vclt.124 Thus, it does not have to be a treaty, but it must bring out a clear expression of the intention of the parties.125 The typical instances of contemporaneous context are final acts, protocols of signature, understandings, commentaries or explanatory reports.126 A clear example of contemporaneous context in relation to the Refugee Convention is the Final Act of the Conference of Plenipotentiaries.127 Hathaway and Foster 1 20 Goodwin-​Gill and McAdam (n 111) 95; see also Maiani (n 18) mn 10. 121 International criminal law today provides a means of punishing the most severe human rights violations at an international level, which is thus different from international refugee law. 122 Zimmermann and Mahler (n 17) mn 331. 123 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 552 mn 69. 124 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 550–​551 mn 66. 125 Aust (n 57) 211. 126 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 551 mn 67. 127 Hathaway, The Rights of Refugees (n 91) 53.

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rely on the Final Act as indicating that the scope of protection of the Refugee Convention should be interpreted widely, referring to its aspiration that the Refugee Convention should have value ‘exceeding its contractual scope’.128 However, a statement expressly emphasizing the limits of the scope of the Refugee Convention and that states should consider going beyond these limits is ill-​suited as a basis for a wide interpretation. While this statement may be pertinent to issues that are not at all covered by the Refugee Convention, such as what are now generally referred to as persons in need of international protection, it is not particularly instructive for the interpretation of the refugee definition. There is no other contemporaneous context in the case of the Refugee Convention. 7 Subsequent Agreement (Art. 31(3)(a) vclt) Art. 31(3) vclt lists further sources of interpretation, which must be taken into account ‘together with context’. Subsequent agreements and subsequent practice do not constitute context in themselves, as opposed to contemporaneous agreements (see Art.  31(2) vclt). However, such subsequent material has the same interpretative value as contemporaneous context set out in Art. 31(2) vclt.129 Subsequent agreement and practice set out in Art. 31(3)(a) and (b) vclt enable the parties to a treaty to subsequently agree on an authoritative interpretation of the treaty without having to modify the treaty text itself.130 Subsequent practice131 or subsequent agreement can also serve as a basis for an evolutionary interpretation. Subsequent agreement is defined in Art. 31(3)(a) vclt as agreement between the parties ‘regarding the interpretation of the treaty or the application of its provisions’ and includes not just treaties. It can also be derived from the actions of States parties at diplomatic level through for instance unilateral declarations or at domestic level through legislation.132 In the context of the Refugee Convention and the definition of a refugee in Art. 1A(2), it is important to note that the definition was amended by the 1967 Protocol, removing the geographical and temporal limitation contained in the original definition of 1951 (expressly limiting it to persons fleeing ‘as a result of

1 28 Hathaway and Foster (n 15) 9–​10. 129 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 553. 130 Aust (n 57) 212 referring as an example to the UN General Assembly Declaration of 1996 as interpretation of Art. 1F of the Refugee Convention (‘acts contrary to the purposes and principles of the UN’) at 213. 131 Djeffal (n 45) 29–​30 in relation to subsequent practice. 132 Goodwin-​Gill and McAdam (n 111) 8.

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events occurring before 1 January 1951’) but maintaining all other elements of it. The 1967 Protocol made it clear that the Refugee Convention is intended to have application to a variety of countries and situations and for the indefinite future.133 The membership of the Refugee Convention and the 1967 Protocol is almost co-​extensive and it has at the very least modified the refugee definition for all States parties that have ratified the 1967 Protocol.134 In addition, by maintaining all the other elements of the refugee definition, the 1967 Protocol made it clear that the drafters still intended the refugee definition to retain its otherwise flexible nature. This is a further indication of the intention of the drafters of the Refugee Convention and the 1967 Protocol to render the refugee definition more adaptable to future circumstances and make it more open-​ ended, confirming also the intention of an evolutionary approach. Further, there are a number of agreements which have been referred to as ‘subsequent agreement’ within the definition of Art. 31(3)(a) vclt. In his 2005 book on The Rights of Refugees Hathaway referred to the unhcr Handbook and unhcr ExCom Conclusions as ‘subsequent agreement’.135 However, as pointed out above in Chapter ii.B.2 not all States parties are members of the unhcr ExCom and not all members of the unhcr ExCom are States parties to the Refugee Convention, rendering unhcr ExCom Conclusions a rather questionable instance of subsequent agreement. Further, Goodwin-​Gill argues that the unhcr Handbook does not clearly fall within the vclt’s ‘frame of reference’, not constituting context, subsequent agreement or practice.136 In the second edition of The Law of Refugee Status, published in 2014, Hathaway and Foster now also doubt whether the unhcr Handbook, Guidelines and ExCom Conclusions should properly be treated as subsequent agreement between the parties. They rely on the fact that ExCom Conclusions are agreed by only a small number of states, including non-​party states. They further observe that the refugee case law has ‘thus sensibly refrained from assigning any 133 Foster (n 49) 62, citing Applicant A v Minister for Immigration and Ethnic Affairs (n 86) 292 (per Kirby J); R v Special Adjudicator, ex p Hoxha [2005] wlr 1063 (UK House of Lords) at para. 6 (per Lord Hope); Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 alr 553 (High Court of Australia) at 312 (per Kirby J); Daniel Martin Butler v Attorney General and Refugee Status Appeals Authority (1997) CA 181/​97 (New Zealand Court of Appeal). 134 See unhcr, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (145 states are parties to the Refugee Convention and 146 are parties to the 1967 Protocol). 135 Hathaway, The Rights of Refugees (n 91) 54–​55 fn 146. 136 Goodwin-​Gill (n 16) 212.

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particular interpretive status to the unhcr’s published positions, even as it has clearly recognized the frequent value of the agency’s advice in the interpretive process’.137 As unhcr documents and unhcr ExCom Conclusions are not agreed ‘between the parties’ to the Refugee Convention, it is the correct view that they cannot constitute subsequent agreement within the meaning of Art. 31(1)(a) vclt. A further potentially relevant ‘subsequent agreement’ is the Declaration of States parties, issued at the December 2001 Ministerial Meeting of States parties to mark the 50th anniversary of the Refugee Convention.138 The 2001 Declaration was reached by the representatives of States parties to the Refugee Convention and specifically concerned the role of the Refugee Convention as ‘the primary refugee protection instrument’ (Preamble to the 2001 Declaration, para. 2). It thus relates to the interpretation of the Refugee Convention and constitutes subsequent agreement between the parties to the Refugee Convention.139 In the 2001 Declaration, the representatives of the States parties stressed ‘the evolving environment in which refugee protection has to be provided, including the nature of armed conflict, ongoing violations of human rights and international humanitarian law, current patterns of displacement, mixed population flows, the high costs of hosting large numbers of refugees and asylum-​seekers and of maintaining asylum systems’ (Preamble to the 2001 Declaration, para. 6). The 2001 Declaration endorses the close relationship of international refugee law with international human rights law. Art. 2 further provides that States parties: Reaffirm our continued commitment, in recognition of the social and humanitarian nature of the problem of refugees, to upholding the values and principles embodied in these instruments, which are consistent with Article 14 of the Universal Declaration of Human Rights, and which require respect for the rights and freedoms of refugees, international cooperation

137 Hathaway and Foster (n 15) 10; referring to Hoxha and B v Secretary of State for the Home Department [2003] 1 wlr 241 (UK Court of Appeal); R v Secretary of State for the Home Department, ex p Adan [1999] 3 wlr 1274 (UK Court of Appeal) 1286; MM (Iran) v Secretary of State for the Home Department [2009] ewca Civ 1167 (UK Court of Appeal) at paras. 25–​ 27; see also Foster (n 49) 72. 138 ‘Declaration of States Parties to the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12–​13 December 2001’ un Doc hcr/​m msp/​2001/​09, 16 January 2002  . 139 Hathaway, The Rights of Refugees (n 91) 54–​55.

[

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to resolve their plight, and action to address the causes of refugee movements, as well as to prevent them, inter alia, through the promotion of peace, stability and dialogue, from becoming a source of tension between States. [emphasis added] The 2001 Declaration constitutes a more recent confirmation of the humanitarian objective of the Refugee Convention and also supports an evolutionary approach, which takes account of the more recent developments in international human rights law. As regards subsequent regional agreements, such as the Organisation of African States’ Convention Governing the Specific Aspects of Refugee Problems in Africa of 1969, the 1984 Cartagena Declaration, the 1966 Bangkok Principles, and the Council of Europe Declaration on Territorial Asylum of 1977, these are complementary instruments to the Refugee Convention, not regional instruments interpreting the Refugee Convention.140 They are thus not of direct assistance in interpreting the meaning of the refugee definition under the Refugee Convention. In conclusion, both the 1967 Protocol and the 2001 Declaration can be seen as subsequent agreements which confirm an evolutionary approach to the refugee definition, taking into account contemporary human rights norms. 8 Subsequent Practice (Art. 31(3)(b) vclt) Subsequent practice is defined in Art. 31(3)(b) vclt as practice ‘in the application of the treaty which establishes the agreement of the parties’. Practice can refer to any actions of a public body and may consist not only of judicial decisions and acts of legislation, but also of official statements, manuals, diplomatic correspondence, press releases, transactions or votes on resolutions in international organizations.141 However, such actions must display a certain continuity; practice cannot be established by one isolated act.142 In other words subsequent practice needs to be ‘concordant, common and consistent and […] sufficient to establish a discernable pattern of behaviour’.143 In the case of a multilateral treaty, subsequent practice is established by ‘very

140 Gonzaga (n 19) 243; see also Storey (n 20) 463 who notes that these regional treaties provide supplemental definitions rather than elaborating on the meaning of the Refugee Convention’s definition. 141 Hathaway, The Rights of Refugees (n 88) 54–​55. 142 Villiger (n 57) 431 Art. 31 mn 22; see also Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 556 mn 79. 143 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 557 mn 83.

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convincing evidence of a widespread and general practice of the international community’.144 However, it is important to note that this must not be understood as meaning an active practice of all parties to the treaty. The International Law Commission in fact omitted the word ‘all’ parties, which had been included in an earlier draft, in order to avoid the misconception that the practice must be actively performed by all the parties; tacit acquiescence by some of the parties is sufficient.145 However, where not all the parties participated in the practice, there has to be good evidence that the other parties to the treaty were aware of this practice and endorsed it.146 The bottom line is that there has to be agreement of the parties either explicitly or by acquiescence together with a lack of objections.147 The extent, uniformity and consistency of state practice affects the legal weight to be attached to it.148 In the context of the Refugee Convention it has been argued that the practice of major asylum and refugee resettlement states is particularly important.149 Further, for practice to be relevant under Art. 31(3)(b) vclt, it must take place in the application of the treaty. The public body must consider itself to be acting within the scope of the treaty.150 This means that the practice in question must not only relate to the treaty in question, but must have been motivated by a sense of legal obligation, and not just reasons of expediency.151 Where an international organization has been entrusted with certain functions in relation to a treaty, the fulfilment of these functions may be considered to create subsequent practice in itself.152 For instance, the icj held in the Diallo case concerning the African Charter on Human and Peoples’ Rights, that ‘it should ascribe great weight to the interpretation adopted by this independent body [sc. the African Commission on Human and Peoples’ Rights] that was

1 44 145 146 147 148

Hoxha and B v Secretary of State for the Home Department (n 137) at para. 47. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 557 mn 83. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 559–​560 mn 86–​88. Villiger (n 57) 431 Art. 31 N. 22. Goodwin-​Gill and McAdam (n 111)  148; Nolte, ‘Report 2:  Jurisprudence Under Special Regimes Relating to Subsequent Agreements and Subsequent Practice’ (n 50) 266–​268 notes that the ECtHR has broadened the concept of subsequent practice and is less strict with certain of these requirements, in particular the common agreement, attribution to the state and sufficient determinacy of the practice. 149 Goodwin-​Gill and McAdam (n 111) 148; Goodwin-​Gill (n 16) 214. 150 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 557 mn 80. 151 Hathaway, The Rights of Refugees (n 91) 70. 152 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 531 mn 19.

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established specifically to supervise the application of that treaty’.153 Yet, while such treaty body practice may in certain circumstances amount to relevant subsequent practice, it cannot in itself provide an authoritative interpretation of the treaty, as it is only the parties to the treaty themselves which can do so.154 In addition, where the practice of such treaty bodies is actively counteracted by the parties to the treaty, it cannot give rise to pertinent subsequent practice.155 In the context of the Refugee Convention, one of the questions is whether the interpretation of the Refugee Convention through unhcr constitutes subsequent practice, as evidenced by the unhcr Handbook, its Eligibility Guidelines and Legal Guidelines and its ExCom Conclusions. For instance, Aust expressly refers to the unhcr Handbook as relevant to the interpretation of the Refugee Convention on the basis that it ‘is generally treated as an authoritative commentary on the Refugees Convention 1951 and practice under it, and is often referred to by domestic courts and tribunals’.156 The unhcr Handbook was prepared at the request of States members of the ExCom for the guidance of states in determining asylum claims.157 It was first published in 1979 and has been reprinted in several languages since then, with its content (other than the foreword and lists of States parties) remaining unchanged.158 The Preface to the 1979 version of it stated that it was based on unhcr’s experience, including state practice and exchanges of views with competent authorities of States parties, and academic publications in the field.159 While it is cited by governments and courts around the world, its non-​binding nature is regularly emphasized (see further above, Chapter ii.B.2).160

153 Dörr, ‘Article 31:  General Rule of Interpretation’ (n 46)  532 mn 20, referring to Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo), Merits, Judgment icj Reports 2010, 639 (icj) [66]. 154 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 532 mn 20. 155 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 559 mn 86. However, on the limited weight that such restrictive state practice may receive in the context of human rights treaties (also called law-​making treaties), see below Chapter ii.D.2. 156 Aust (n 57) 212. 157 Goodwin-​Gill and McAdam (n 111) 54 fn 17 referring to the unhcr Executive Committee, Report of the 28th Session: un Doc A/​a c.96/​549 (1977), para 53.6(g). 158 Goodwin-​Gill and McAdam (n 111) 54 fn 17. 159 unhcr (n 32) Preface, para (v), 1; for a more detailed review of the history of the unhcr Handbook see Goodwin-​Gill (n 16) 210–​212. 160 Goodwin-​Gill and McAdam (n 111)  54 fn 17; Symes and Jorro (n 63)  13 with further references.

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Goodwin-​Gill observes that the judicial practice on the status of the unhcr Handbook ‘reveals a degree of uncertainty and inconsistency’.161 For instance, the UK Court of Appeal considered the unhcr Handbook to constitute ‘good evidence’ of subsequent practice, but not subsequent practice in itself.162 The Federal Court of Australia has described unhcr guidance as ‘an attempt to harmonise the construction of the Convention’, which should be taken into account.163 According to the UK Immigration Appeals Tribunal the unhcr Handbook ‘is a source of guidance as to the law and is not a source of legal obligation’, nor is it necessarily a ‘guide to state practice’ because individual paragraphs may not relate to state practice but rather to unhcr’s exhortations.164 unhcr guidance ‘is entitled to great respect but it may also be inaccurate or tendentious’.165 The UK Court of Appeal has also criticized that some of unhcr guidance is expressed in aspirational language such as ‘should’ or ‘could’, thus clearly not expressing binding legal requirements.166 Foster views unhcr guidance a matter of soft law and considers it ‘unlikely’ that they constitute subsequent practice.167 However, the unhcr Handbook and the unhcr International Protection Guidelines provide on the one hand ‘evidence’ of state practice, with the International Protection Guidelines regularly referring to domestic case law and the Handbook having been based on then state practice and state consultations. On the other, in accordance with the icj’s findings in the Diallo case, unhcr positions deserve to be attributed great weight, as unhcr is the institution entrusted with the supervision of the Refugee Convention according to its Art. 35. In relation to the unhcr ExCom it has been pointed out that this cannot create ‘subsequent practice’ that would be legally binding in the interpretation 1 61 Goodwin-​Gill (n 16) 213. 162 R v Secretary of State for the Home Department, ex p. Adan (n 137); Foster (n 49) 72 fn 179 erroneously states that the ca in this case described the unhcr Handbook as subsequent practice in itself, but it was only considered ‘good evidence of what has come to be international practice within Art.31(3)(b) of the Vienna Convention’; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] hca 53 (High Court of Australia) at para. 80. Kirby J. also found that the unhcr Handbook and Guidelines could assist the courts in elucidating the way the Refugee Convention operates in other countries. 163 Minister for Immigration and Multicultural Affairs v Applicant S [2002] fcafc 244 (High Court of Australia) at para. 41 (per North J.). 164 aa (Exclusion Clause) Palestine [2005] ukiat 00104 (uk iat) para 67; for an extensive review of the UK case law on the unhcr Handbook, see Goodwin-​Gill (n 16) 224–​226. 165 aa (Exclusion Clause) Palestine (n 164) para 67; for an extensive review of the UK case law on the unhcr Handbook, see Goodwin-​Gill (n 16) 224–​226. 166 Hoxha and B v Secretary of State for the Home Department (n 137). 167 Foster (n 49) 72.

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of the Refugee Convention, as its function is to advise unhcr rather than States parties. In addition, it cannot bind States parties to the Refugee Convention, as unhcr ExCom’s composition is not congruent with the States parties to the Refugee Convention.168 However, ExCom Conclusions may serve as evidence of guidelines for the practice of unhcr in its daily protection work and thus as evidence of the practice of the UN agency carrying out its work under the umbrella of the Refugee Convention. National courts’ and authorities’ practice can also constitute subsequent practice informing the interpretation of the Refugee Convention. Indeed, where there is no international court competent to interpret the treaty, domestic practice may be particularly relevant to the interpretation of a treaty,169 as ‘national courts are exercising a species of international jurisdiction’.170 However, subsequent practice in the context of the Refugee Convention is particularly difficult to establish, given the need for at least acquiescence of all the parties in the alleged interpretive practice.171 The citation of foreign judicial decisions in domestic decisions on the Refugee Convention may assist in revealing or confirming legal meaning on the basis of an extensive review of the sources on the point.172 The transnational judicial dialogue, facilitated through the institution of the International Association of Refugee Law Judges therefore assumes particular importance for a progressive construction of a universal refugee definition.173 The aim is to promote a common understanding of refugee law principles amongst judicial decision-​makers, which is done through colloquia and conferences.174 In addition, the higher courts of various jurisdictions look to decisions of higher courts in other countries in order to distil the ‘true meaning’ of the refugee definition in a specific context.175 Indeed, the UK Court of Appeal held in Horvath that it ‘is obviously desirable that the approach to the interpretation of the Convention should, so far as is possible, be the same in all countries which are signatories’.176 Similarly, the New Zealand Supreme Court has made it clear that it has regard to judicial 1 68 Zieck (n 28) 1497 mn 69. 169 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 530–​531 mn 18. 170 McAdam (n 30) 109 mn 103; citing Kirby J. in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (n 162) at para. 78. 171 Hathaway, The Rights of Refugees (n 91) 69. 172 Goodwin-​Gill (n 16) 218. 173 Maiani (n 16) 21–​22. 174 Maiani (n 16) 21 fn 9 referring to the iarlj Constitution, Art. 2. 175 Hathaway and Foster (n 15) 4–​5. 176 Horvath v Secretary of State for the Home Department [2000] inlr 15 (UK Court of Appeal) per Ward lj.

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decisions from other States parties.177 The Australian High Court has emphasized that international jurisprudence can assist in achieving a consistent international approach to the refugee definition.178 This transnational judicial dialogue is, both for linguistic reasons and for reasons of legal system, particularly common amongst common law countries.179 A further pertinent indicator of subsequent state practice is EU asylum law, which seeks to harmonize inter alia the requirements for the grant of refugee status within the EU. In this context, the Court of Justice of the European Union now performs an important function providing for a single authoritative interpretation for all the EU Member States that have adopted the EU Qualification Directive180. The EU Recast Qualification Directive181 has introduced common standards for the refugee definition, which are subject to the jurisdiction of the Court of Justice of the European Union.182 However, despite the common

177 Attorney-​General v. Zaoui and Inspector-​General of Intelligence and Security (n 62) at paras. 39 et seq. 178 Applicant A v Minister for Immigration and Ethnic Affairs (n 86) 296 (per Kirby J.). 179 McAdam (n 30) 109 mn 101; Storey (n 20) 461 fn 15 notes further that UK case law regularly goes out of its way to cite and analyse foreign jurisprudence; for the US, see Negusie v Holder (2009) 555 US 511 (US Supreme Court) 537 in which Justice Stevens held that ‘[w]‌hen we interpret treaties, we consider the interpretations of the courts of other nations’; and see for instance Canada (Attorney General) v. Ward (n 114), referring to the US decision on particular social group in Matter of Acosta (1985) I. & N. Dec 211 (US Board of Immigration Appeals), discussed in Deborah Anker and Josh Vittor, ‘International Human Rights and US Refugee Law: Synergies and Contradictions’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 114. 180 Council Directive 2004/​ 83/​ EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L 204/​12, 30 September 2004. 181 Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/​9, 20 December 2011. 182 While the cjeu is not directly interpreting the Refugee Convention, by interpreting the Qualification Directive, it is interpreting ‘transposed articles’ of the Refugee Convention and has a far-​reaching impact on the practice of 28 EU member states in refugee status determination, see Geoff Gilbert, ‘UNHCR and Courts: Amicus Curiae … Sed Curia Amica Est?’ 28 International Journal of Refugee Law 623, 632–​633; this needs to be distinguished from the role of the ECtHR, which is clearly a human rights court and cannot be seen as an ‘ersatz refugee law court’, see Cathryn Costello, ‘The Search for the Outer Edges of Non-​ Refoulement in Europe: Exceptionality and Flagrant Breaches’ in Bruce Burson and David

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interpretive instance of European asylum law in the Court of Justice of the EU, there is a ‘marked absence’ of transnational judicial dialogue about refugee law within the EU.183 Internationally, Goodwin-​Gill notes that judicial decisions alone can never reflect state practice as regards the refugee definition, given that many States parties do not have a refugee status determination procedure in place.184 Hathaway further cautions against too much reliance on state practice because it may be unavailable to the court, unrecorded, generated at will and self-​serving, and because it is amenable to subjective interpretation and selectivity.185 He refers to ‘less-​than-​unanimous state practice’ as ‘at best an awkward source of guidance on the meaning of multilateral treaties’.186 Thus, even where an important subset of states takes a unanimous view on state practice, as is the case with the EU Qualification Directive, ‘there is no basis to view such positions as necessarily amounting to authoritative understandings of the Refugee Convention’.187 In addition, as will be further discussed below in subchapter D.2, the EU Qualification Directive can only provide for minimum standards and does not prevent Member States from providing more generous protection for refugees. Where subsequent practice does not meet the requirements of Art. 31(3) (b) vclt, but nevertheless sheds some light on the meaning of the terms of a treaty, it may fall within the scope of Art. 32 vclt as supplementary means of interpretation.188 The relevance of such material depends on the ‘assessment of the interpreter’ whether it can assist in establishing the meaning of a treaty, as ‘there are scarcely any clear limits’ to the material that may be taken into

James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 181. 183 See the study of the use of foreign law by national asylum courts in nine EU member states in Guy Goodwin-​Gill and Hélène Lambert (eds), The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union; see also McAdam (n 30) 78–​79; this is contrary to the statement in Hathaway and Foster (n 15) 5 that the EU Qualification Directive has led to an increased judicial dialogue amongst its Member States; for Switzerland see Maiani (n 16) 23 referring, inter alia, to the fac judgment of 18 August 2008 (D-​6551/​2006) confirming the protection rather than accountability theory and referring to the EU Qualification Directive. 184 Goodwin-​Gill (n 16) 209 fn 4. 185 Hathaway, The Rights of Refugees (n 91) 219. 186 Hathaway, The Rights of Refugees (n 91) 73; Hathaway and Foster (n 15) 12. 187 Hathaway and Foster (n 15) 12. 188 Villiger (n 57) 432 Art. 31 N. 22; Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 581 mn 25–​26.

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account.189 In the context of the Refugee Convention, Goodwin-​Gill observes that judicial decisions may serve as ‘supplementary means’ of interpretation, where they fail to meet the strict requirements of ‘subsequent practice’, and insofar as they are ‘based in the underlying principles of refugee protection and human rights’.190 Without reference to Art. 32 vclt, Hathaway also states that such non-​unanimous practice may be admitted as interpretive aid ‘because practice represents the common-​sense practical interpretation of the treaty under the varied contingencies of its ongoing operation’.191 By way of example, the European Court of Human Rights (‘ECtHR’) seems to be looking to state practice of its Contracting Parties as supplementary means.192 While it sometimes purports to do so under Art. 31(3)(b) vclt, Forowicz points out that the Court often only relies on partial agreement in the form of the prevailing but not fully consistent practice of Member States.193 For instance, in Soering v. UK194 the ECtHR referred to a generalized abolition of the death penalty in the Contracting parties as sufficient to establish the agreement that capital punishment was in violation of Art. 3 echr.195 Further, in Öcalan v. Turkey196 it held that given that all Contracting Parties had signed Protocol No. 6 on the abolition of the death penalty in times of peace and all but one (Turkey) had ratified it, this had the effect of modifying Art. 2(1) echr.197 However, the ECtHR did not expressly rely on Art. 31(1)(b) vclt in these cases and it is arguable that state practice was rather relied on as a supplementary means of interpretation, and not as subsequent practice. For various reasons set out above, it is difficult to establish a consistent state practice in relation to the application of the refugee definition, which meets 189 Oliver Dörr, ‘Article 32:  Supplementary Means of Interpretation’ in Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties (Springer Verlag 2012) 581 mn 26. 190 Goodwin-​Gill (n 16) 209–​210. 191 Hathaway, The Rights of Refugees (n 91) 227. 192 Some caution may be necessary in relying on the interpretive practice of the ECtHR, as it is based on a common tradition of constitutional law and a shared legal tradition and employs concepts such as ‘margin of appreciation’, otherwise unknown to international human rights law, see Foster (n 49) 68–​69, referring to Clare Ovey, Robin CA White and Francis G Jacobs, The European Convention on Human Rights (Oxford University Press 2006) 32. 193 Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights (Oxford University Press 2010) 41–​42. 194 Soering v United Kingdom app no 14038/​88 (echr, 7 July 1989). 195 Forowicz (n 193) 38. 196 Öcalan v Turkey app no 46221/​99 (echr (gc), 12 May 2005). 197 Öcalan v. Turkey (n 196) at paras. 195–​196; Forowicz (n 193) 39.

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the requirements of Art. 31(3)(b) vclt. However, as will be further discussed below in subchapter D.1, it is arguable that there is now consistent state practice in relation to the fact that the refugee definition is evolutionary. While there may not be the same consistency as regards the relevance of contemporary international human rights law, state practice of various major asylum states even if not unanimous may, under Art. 32 vclt as supplementary means of interpretation, be taken into account. Relevant Rules of International Law Applicable between the Parties (Art. 31(3)(c) vclt) Art. 31(3)(c) vclt refers to ‘any relevant rules of international law applicable in the relations between the parties’ as a source of interpretation. These rules need to be taken into account together with context. This wide basis with its reference to ‘any’ relevant rules constitutes an implicit reference to all recognised sources of international law as set out in Art. 38(1)(c) of the icj Statute.198 In addition to treaty law, both customary international law and general principles of law within the meaning of Art. 38(1)(c) of the icj Statute199 constitute relevant rules of international law.200 According to Art. 31(3)(c) vclt, rules of international law must be relevant. This requires that treaties or other rules of international law deal with the same or a similar subject-​matter.201 Relevant rules of international law also include treaties that were ‘created to solve the same or similar factual, legal or technical problems’.202 However, Dörr notes that relevance is a rather subjective concept.203 Aside from being relevant to the treaty interpretation, rules need to be applicable. Applicability requires that the rules are legally binding as treaty law, customary international law or as general principles of law and there are no applicable reservations.204 The International Law Commission specifically removed words expressing a temporal limitation from Art. 31(3)(c) vclt, when drafting the vclt.205 Therefore, applicable rules of international law include 9

1 98 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 561. 199 1945 Statute of the International Court of Justice, adoption on 26 June 1945, entry into force on 24 October 1945 (‘icj Statute’). 200 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 562–​563. 201 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 562. 202 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 565. 203 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 567. 204 Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 567. 205 Sir Arthur Watts, The International Law Commission, 1949–​1998 (oup, Oxford, 1999), vol. ii, 690; the original version of Art. 31(3)(c) vclt contained the following limitation: ‘general rules of international law in force at the time of its conclusion’ (original emphasis).

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contemporary international law, as Art. 31(3)(c) vclt is not limited to rules which pre-​date the treaty that is being interpreted.206 Further, such rules must be applicable in the relations between the parties to the treaty. According to Art. 2(1)(g) vclt parties are defined as states for whom the treaty under interpretation is in force. Again, Art. 31(3)(c) vclt does not expressly require rules of international law to be applicable in the relations between all the parties. Certain commentators are of the view that this nevertheless means ‘all parties’.207 As the International Law Commission study points out, such a requirement would lead to the absurd result that the more membership a multilateral treaty has, the more its interpretation would be cut from other rules of international law.208 Indeed, Merkouris concludes after a detailed review of the drafting history and historical background to Art. 31(3) (c) vclt that the formulation of ‘the parties’ was ‘left deliberately vague’ in order to be able to reach agreement during the negotiations of the vclt without jeopardising the relevance of this provision.209 A different interpretation would be that the formulation ‘between the parties’ means ‘between the parties to the dispute’. However, this would lead to a different interpretation of a treaty depending on which parties are disputing it.210 In addition, this is difficult to apply in the context of human rights and refugee treaties, as the parties to the dispute are normally a state and an individual.211 A third possible interpretation is that it means that there is a general consensus or common intention between the parties to the treaty. Foster relies on this approach which has been advanced in the context of world trade law and international human rights.212 Foster concludes that ‘those

2 06 Aust (n 57) 216–​217. 207 Dörr, ‘Article 31:  General Rule of Interpretation’ (n 46)  566 acknowledging that this severely limits the applicability of Art. 31(3)(c) vclt in the context of multilateral treaties, with the only exception being obligations owed in a synallagmatic way between pairs of parties rather than erga omnes partes; see also Foster (n 49) 55. 208 UN General Assembly, International Law Commission (n 49) 237; Foster (n 49) 55; see also Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 European Journal of International Law 753, 781. 209 Panos Merkouris, ‘Debating the Ourobouros of International Law: The Drafting History of Article 31(3)(c)’ (2007) 9 International Community Law Review 1, 29. 210 Foster (n 49) 56. 211 Foster (n 49) 56. 212 Foster (n 49) 56–​57; relying on Gabrielle Marceau, ‘A Call for Coherence in International Law’ (1999) 33 Journal of World Trade 87, 125; and see also un General Assembly, International Law Commission (n 49) 239.

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human rights treaties which have attained widespread membership are relevant ‘rules of international law’ to which refugee decision-​makers should have regard’ in accordance with Art. 31(3)(c) vclt.213 The International Law Commission notes in its study on fragmentation that the wto Appellate Body has often referred to regional and bilateral agreements because they shared a ‘widely accepted common element’ in their definition of a specific term. However, the ilc observes that such regional and bilateral agreements appear to be relied on not under Art. 31(1)(c) vclt but ‘for the purpose of interpreting an ambiguous wto provision’,214 which indicates that the legal basis for such reliance is Art. 32 vclt instead.215 Similarly, Dörr considers the decision of the wto Appellate Body in the ec –​ Chicken Cuts216 case and reaches a similar conclusion. In this case the wto Appellate Body relied on documents produced by certain States parties only (the ec) subsequent to the wto Agreement’s conclusion for an indication of the ‘common intentions of the parties’ at the time of the treaty’s conclusion.217 Dörr also concludes that the legal basis for this reference was not Art. 31(3) (c) vclt, but supplementary means of interpretation pursuant to Art. 32 vclt, as the requirements for ‘relevant rules of international law applicable in the relations between the parties’ was not met. This third interpretation of Art. 31(3)(c) as referring to a common intention of the parties is therefore doubtful. Rather, the case law that is cited is supportive of international human rights treaties being relevant as supplementary means of interpretation. Supplementary means of interpretation are further considered below in subchapter C.10. In the context of the Refugee Convention, it is arguable that international human rights norms are relevant, as they may for instance inform the interpretation of who qualifies as a refugee. The main issue is, however, whether these are ‘applicable between the parties’ to the Refugee Convention. If ‘applicability between the parties’ means that a relevant human rights treaty must have attained ‘perfect co-​extensive membership’ with the Refugee Convention, it follows that no additional treaty can be considered under

2 13 Foster (n 49) 59. 214 Korea –​Measures Affecting Imports of Fresh, Chilled and Frozen Beef (2000) wt/​d s161/​R, wt/​d s161/​a b/​R, dsr 2001:I (wto Appellate Body) 59 at para. 539. 215 UN General Assembly, International Law Commission (n 49) 225. 216 EC –​Customs Classification of Frozen Boneless Chicken Cuts (2005) wt/​d s269/​a b/​R (wto Appellate Body). 217 Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 581 mn 25; citing ec –​ Customs Classification of Frozen Boneless Chicken Cuts (n 216) at para. 305.

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Art.  31(3)(c) vclt. As Foster notes ‘few, if any, treaties have co-​extensive membership’ with the Refugee Convention.218 The Refugee Convention and the 1967 Protocol together currently have a membership of 149 states.219 Not even the iccpr and the icescr are ratified by the exact same states as the Refugee Convention.220 As already stated, the second possible interpretation which would mean ‘applicable between the parties to the dispute’ does not lead much further in the context of the Refugee Convention, as disputes arise between an individual and the state, not two States parties. By way of comparison, the ECtHR’s interpretive approach is instructive. The ECtHR has sometimes referred to Art. 31(3)(c) vclt in order to justify its reference to contemporary norms of international law.221 As regards the required level of support for an international rule amongst Contracting Parties, the ECtHR looks to the level of support for such regimes as expressed in ratification rates, with a high level of convergence in membership leading to increased reliance on international rules.222 Notably, the ECtHR regularly relies on the practice of a qualified majority of states, a ‘vast majority’ or ‘great majority’ of states.223 The Court is particularly willing to take into account

2 18 Foster (n 49) 55. 219 See unhcr, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol (146 states are parties to the Refugee Convention and 147 are parties to the 1967 Protocol, and 149 states are parties to at least one of those two). 220 Foster (n 49) 55 fn 102. 221 See e.g. the cases cited in UN General Assembly, International Law Commission (n 49)  219–​221; Golder v the United Kingdom app no 4451/70, 21 February 1975 (ECtHR) at paras. 27–31; Loizidou v Turkey (Merits) app no 15318/​89, 18 December 1996 (ECtHR (gc)) at para. 44; Al‑Adsani v the United Kingdom app no 35763/97, 21 November 2001 (ECtHR (gc)) at para. 55; Fogarty v the United Kingdom app no 37112/​97, 21 November 2001 (ECtHR) at para. 35; McElhinney v Ireland app no 31253/​96, 21 November 2001 (ECtHR (gc)) at para. 36; the ECtHR also referred to Art. 31(3)(c) vclt in Banković v Belgium and others app no 52207/​99, decision of 12 December 2001 (ECtHR) at para. 57; for a critique of the ECtHR’s approach, see generally Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14 European Journal of International Law 529. 222 Siobhán McInerney-​ Lankford, ‘Fragmentation of International Law:  The Case of Strasbourg’ (2012) 32 Oxford Journal of Legal Studies 609, 615–​616. 223 Nolte, ‘Report 2: Jurisprudence Under Special Regimes Relating to Subsequent Agreements and Subsequent Practice’ (n 50) 257; see e.g. Marckx v Belgium app no 6833/​74 (echr, 13 June 1979)  paras 20, 41; Demir and Baykara v Turkey app no 34503/​97 (ECtHR (gc), 12 November 2008) at paras 52, 76 and see at paras. 79–​83 for a list of echr case law referring to norms of international law.

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norms providing more specific guidance than the echr from specialized regimes, such as child rights, torture, armed conflict, refugee rights and civil and political rights.224 In particular, it has taken into account the provisions of other human rights treaties post-​dating the echr, such as the iccpr, cat, cedaw or the crc and the practice of the IACtHR.225 Emerging international practice, as in relation to the Council of Europe Convention on Victims of Trafficking is also relevant.226 However, in the majority of the ECtHR’s case law, the principle under Art. 31(3)(c) vclt has been resorted to mostly implicitly or indirectly,227 rather than as a fully considered and integrated basis for a systemic approach to international law.228 The ECtHR has been criticised for relying on Art. 31(3)(c) vclt more as a ‘rubber stamp legitimating its use of international law’ rather than as a sound legal basis for its international law excursions.229 The above analysis shows that there is some murky ground between situations where international human rights treaties have been taken into account under Art. 31(3)(c) vclt, and when these may have served as supplementary means according to Art. 32 vclt. While several commentators argue that international human rights treaties are relevant to the refugee definition in accordance with Art. 31(3)(c) vclt,230 it appears to be the correct view that human rights treaties are taken into account on the basis of Art. 32 vclt. Such supplementary means of interpretation under Art. 32 vclt will be further considered in the next subchapter.

2 24 McInerney-​Lankford (n 222) 615. 225 Dörr, ‘Article 31:  General Rule of Interpretation’ (n 46)  562, referring for instance to Al‑Adsani v.  the United Kingdom (n 221); Sørensen and Rasmussen v Denmark app nos 52562/​99 and 52620/​99, 11 January 2006 (ECtHR (gc)); Siliadin v France app no 73316/​ 01, 26 October 2005 (ECtHR); Demir and Baykara v Turkey (n 223); Rantsev v Cyprus and Russia app no 25965/​04, 7 January 2010 (ECtHR). 226 Nolte, ‘Report 2: Jurisprudence Under Special Regimes Relating to Subsequent Agreements and Subsequent Practice’ (n 50) 268, referring to Rantsev v Cyprus and Russia (n 225) para 285; and see Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 562. 227 Forowicz (n 193)  67; and see generally Alastair Mowbray, ‘Creativity of the European Court of Human Rights’ (2005) 5 Human Rights Law Review 57. 228 Forowicz (n 193) 13. 229 Forowicz (n 193) 58. 230 Vincent Chetail, ‘Sources of International Migration Law’ in Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-​Cross (eds), Foundations of International Migration Law (Cambridge University Press 2012)  73; Hathaway, The Rights of Refugees (n 91)  66; Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 568 notes that this also depends on whether the terms of the treaty are subject to static or dynamic interpretation.

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10 Supplementary Means of Interpretation (Art. 32 vclt) Art. 32 vclt refers to supplementary means of interpretation. These expressly include the ‘preparatory work of the treaty and the circumstances of its conclusion’. However, Art. 32 provides a non-​exhaustive list and other sources may be relevant as supplementary means of interpretation. For Art. 32 vclt only refers to preparatory work and circumstances of treaty conclusion as examples (‘including the preparatory work and the circumstances of its conclusion’). Supplementary means of interpretation may only be relied on, where an interpretation according to Art. 31 vclt ‘leaves the meaning ambiguous or obscure’ (Art. 32(a) vclt) or leads to a ‘manifestly absurd or unreasonable’ result (Art. 32(b) vclt). There is ‘an endless debate’ on the question when supplementary means of interpretation may be invoked. Confirming the meaning according to Art. 31 vclt means that supplementary materials may only play a minor role in the interpretation, but it may become a determinative means, where it does not confirm the meaning originally found according to Art. 31 vclt.231 Determining comes into play where the meaning remains ambiguous or obscure, which –​as opposed to manifest absurdity or unreasonableness –​is a very elastic and subjective test and thus renders supplementary means of interpretation more relevant than they would otherwise be.232 It has been pointed out that courts rarely follow the rules of interpretation in Art. 32 vclt and regularly resort to the travaux préparatoires at the outset, even though they should first consider whether or not the text is clear.233 The threshold in practice for deciding whether a text is ‘ambiguous or obscure’ has thus been described as quite low.234 Villiger has stated that ‘it is difficult to imagine situations where the means of Article 32 may not be employed’.235 Regarding the definition of preparatory work, this includes any written material relating to the conclusion, such as successive drafts, conference records, explanatory statements.236 The material must be apt to illuminate a common understanding of the negotiating parties as to the meaning of the terms of the treaty.237 In the case of multilateral treaties, it is important that the travaux have been published or are otherwise available, so that newly acceding states are aware of them.238 The extent to which they can be relied on depends on 2 31 Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 583 mn 30–​31. 232 Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 584 mn 34. 233 Hathaway, The Rights of Refugees (n 91) 58. 234 Hathaway, The Rights of Refugees (n 91) 59. 235 Villiger (n 57) 447 Art. 32 N. 11. 236 Aust (n 57) 218; Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 575. 237 Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 575. 238 Aust (n 57) 220.

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their cogency and accessibility, their relevance, the consistency among the means found and the number of parties involved in their evolution.239 However, Aust emphasizes that ‘the most important parts of a negotiation, and of drafting, often take place informally with no agreed record being kept’, so that the travaux must not be given too much weight.240 Aust further stresses that the usefulness of travaux is often ‘marginal and very seldom decisive’241 and notes that they are often less authentic than the other elements, as they may be ‘incomplete and misleading’.242 Aust stresses that they may serve to elucidate the meaning of the text only and not as a fresh investigation of the intended meaning of the text.243 Regarding the circumstances of a treaty’s conclusion, these include the ‘political, social and cultural factors –​the milieu –​surrounding the treaty’s conclusion’.244 For instance, the icj held in the cerd case (Georgia v. Russia) that the circumstances in which the cerd had been elaborated (rather than just concluded) were relevant to its interpretation.245 The subordinate role of the travaux compared to subsequent practice and agreements has been considered as evidence of the vclt being open to an evolutionary interpretation.246 Indeed, Kälin argues that the travaux préparatoires do not assist with a dynamic approach necessary to maintain the effectiveness of a treaty, which is why it is appropriate that they are only a secondary means of interpretation.247 Chetail also points to the risk of too heavy a reliance on the travaux préparatoires leading to ‘a backward-​looking interpretation that no longer reflects the current understanding and is divorced from the subsequent evolution of international law’.248 As regards the Refugee Convention, first of all, the definition is in all relevant respects sufficiently open-​ended and vague to warrant recourse to supplementary means of interpretation in order to determine or confirm its meaning 2 39 240 241 242 243 244 245

Villiger (n 57) 446 Art. 32 N. 6. Aust (n 57) 218. Aust (n 57) 219. Aust (n 57) 217. Aust (n 57) 217. Villiger (n 57) 445 Art. 32 N. 4. Application of cerd (Georgia v Russian Federation) (Preliminary Objections) icj Reports 2011, 70 (icj) at para. 147, cited in Dörr, ‘Article 31:  General Rule of Interpretation’ (n 46) 579 mn 21. 246 Djeffal (n 45) 20–​30. 2 47 Walter Kälin, ‘Implementing Treaties in Domestic Law:  From `Pacta Sunt Servanda’ to `Anything Goes’?’ in Vera Gowlland-​Debbas (ed), Multilateral Treaty-​Making (Brill/​ Martinus Nijhoff Publishers 2000) 11, 115, cited in McAdam (n 30) 103 mn 83. 248 Chetail (n 230) 73.

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in a particular case. Further, the travaux include the drafting records and related materials of the Ad Hoc Committee on Statelessness and Related Problems and the Conference of Plenipotentiaries. It includes different drafts of the treaty, written interventions by delegates and minutes of meetings, although the latter are only summary records of the proceedings.249 The full history of negotiations and informal discussions is thus not recorded, interventions of delegates do not necessarily reflect unanimity of the negotiators and States parties who signed up to the Convention subsequently do not have access to these, which results in a reduced weight to be accorded to the travaux of the Refugee Convention.250 Symes and Jorro point out that the early drafts of the Convention present ‘formidable difficulties’ as they evidence a history of linguistic changes without adequate explanation for what motivated the changes.251 They conclude that too much emphasis on the drafting history would ‘unduly mire the definition in the past’.252 Courts have recognised the subordinate role of the drafting history and the importance of an evolutionary interpretation in the context of the refugee definition. For instance, in Applicant A Kirby J stressed that the meaning of the Refugee Convention was not confined to what the drafters had in mind.253 In R v. Asfaw the UK House of Lords similarly noted that ‘I would not confine the meaning of that expression to the particular situations that the framers had in mind’.254 Nevertheless, the travaux of the Refugee Convention also serve as a further basis for an evolutionary interpretation of the refugee definition. Hathaway and Foster stress that the preparatory work to the Refugee Convention constitutes ‘a privileged source of evidence on the true meaning of a treaty’s text’.255 They emphasise that the drafting history of the Refugee Convention ‘often provides quite compelling insights into the Convention’s object and purpose’, which is why it would be unreasonable not to include it ‘as a critical component of the interactive process of understanding the object and purpose of the refugee definition’.256 Domestic courts have held that the drafters’ intention 2 49 McAdam (n 30) 99–​100 mn 74. 250 McAdam (n 30) 97 mn 66, 100 mn 74, 101 mn 79; see also Goodwin-​Gill (n 16) 209 fn 4 who notes that only 26 of the currently 144 States parties to the Refugee Convention participated in its drafting process. 251 Symes and Jorro (n 63) 9. 252 Symes and Jorro (n 63) 9. 253 Applicant A v Minister for Immigration and Ethnic Affairs (n 86) (per Kirby J). 254 R v Asfaw (n 37) para 55 (per Lord Hope). 255 Hathaway and Foster (n 15) 7. 256 Hathaway and Foster (n 15) 11.

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was that the refugee definition should evolve over time. In Sepet and Bulbul, for instance, the UK House of Lords observed:257 It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and the future world. In our view the Convention has to be regarded as a living instrument. As regards ‘the circumstances of the conclusion’ of the Refugee Convention, the fact that the Refugee Convention was concluded as part of an international human rights movement ‘that began at the mid-​point of the 20th century and has grown exponentially since then’,258 means that it should be interpreted in light of the ‘wider corpus of international human rights law’.259 Further, as set out in subchapter C.9 above, subsequent state practice which does not meet the stringent requirements of Art. 31(1)(b) vclt may be relevant as supplementary means of interpretation in order to confirm or determine the meaning of the refugee definition. In relation to the question whether the refugee definition is to be interpreted in an evolutionary manner, state practice appears to consistently suggest that this is so. Given its consistency, state practice is most likely relevant as subsequent practice pursuant to Art. 31(3)(b) vclt. However, should this not be the case and insofar as an interpretation in light of the crpd is concerned, state practice is pertinent as supplementary means of interpretation, as no global consistency currently exists in relation to this. In addition, the practice of an international organ, such as unhcr, may constitute supplementary means of interpretation.260 For instance, Kirby J of the High Court of Australia seems to have relied on unhcr sources as a supplementary means of interpretation in qaah, because the meaning was ambiguous or obscure:261 257 Sepet and Bulbul v Secretary of State for the Home Department (n 1), endorsing Laws lj in R v Secretary of State for the Home Department, ex p Adan [1999] 1 ac 293 (UK House of Lords) at 1121, both cited in Foster (n 49) 62. 258 James C Simeon, Background Paper:  The Human Rights Paradigm and the 1951 Refugee Convention (Human Rights Nexus Working Party 1998) 2, cited in Foster (n 49) 49–​50. 259 Foster (n 49) 50 although she refers to these circumstances of the conclusion as ‘context’ under Art. 31(1) rather than as ‘supplementary means’ under Art. 32 vclt, which appears incorrect. 260 Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 581 mn 25. 261 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (n 162) para 80 (per Kirby J).

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It follows that the unhcr Guidelines and Handbook constitute a useful source of expertise that can aid the interpretation of provisions in the Convention that are ambiguous or unclear. Specifically, they can assist in elucidating the purpose and object of the Convention and the way it is intended to operate, and does operate, in other countries. They may therefore be used to assist courts such as this in the interpretation of Convention provisions such as art 1C(5). Particularly is this so in the absence of clear national jurisprudence and relevant State practice, factors that can help, where available, to explain the meaning of provisions of any international treaty. Further, rules of international law which do not meet the requirements of Art. 31(3)(c) vclt, for instance because they do not have the required level of support (co-​extensive membership), fall within Art. 32 vclt as set out above in subchapter C.10.262 International human rights treaties that have been concluded after the conclusion of the Refugee Convention may thus be relevant to an interpretation of the refugee definition. In particular, the ECtHR’s practice set out in subchapter C.9 above indicates, that it may be particularly justified to have recourse to international human rights treaties where these provide more detailed human rights standards in relation to a particular group of persons or issue, such as women (cedaw), children (crc) or torture (cat). By analogy, recourse to the crpd as a supplementary means of interpretation appears to be justified where asylum applicants with disabilities are concerned. Art. 32 vclt thus seems to give considerable freedom to the interpreter. However, such materials may not be used as a first step in interpretation, but may only assist the interpretive exercise after the rule in Art. 31 vclt has been employed.263 In conclusion, the Refugee Convention’s travaux préparatoires, the circumstances surrounding its conclusion and other supplementary means constitute a further basis indicating an evolutionary interpretation and supporting reliance on international human rights law in the context of the Refugee Convention. 11 Treaty Authenticated in Two or More Languages (Art. 33 vclt) Art. 33 vclt sets out rules for treaties that have been authenticated in several languages. According to Art. 33(1) vclt, all language versions, in which a treaty has been authenticated, are equally authoritative, unless the treaty expressly

2 62 Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 581 mn 25. 263 Dörr, ‘Article 32: Supplementary Means of Interpretation’ (n 189) 581–​582 mn 27.

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provides otherwise. Non-​authenticated language versions can only be considered authoritative, if the treaty expressly so provides (Art. 33(2) vclt). Where there are several language versions, the terms are ‘presumed to have the same meaning in each authentic text’ (Art. 33(3) vclt). This presumption of identical meaning has been described as an ‘integral part of the application of the general rule’.264 However, where a difference in meaning arises between two or more authentic language versions, Art. 33(4) vclt sets out the steps in order to resolve this issue: first it has to be considered whether an application of the rules according to Arts. 31 and 32 vclt can remove the difference in meaning. If this is not the case, then the meaning which ‘best reconciles the texts, having regard to the object and purpose of the treaty’ should be adopted. Where the meaning is ambiguous or obscure in one version, but clear in the other, there may be no need to reconcile the two texts, as the ambiguous one is presumed to have the same meaning as the clear text.265 This final step in the process goes beyond the ordinary meaning interpretation ‘by directing the interpreter towards reconciling different meanings’ in light of the object and purpose.266 This thus accords primacy to the object and purpose in case of irreconcilable conflicting language versions.267 In addition, the principle of good faith may also be a limit to this exercise.268 Where one language version would give rise to a wider meaning and one to a more restrictive one, the question is whether the ‘lowest common denominator’269 should be preferred or not. The pcij in the Mavrommatis Concessions Cases gave precedence to the more restrictive meaning.270 However, in a different context in the Wemhoff v. Germany case, the ECtHR explicitly rejected this approach and held that in the context of the echr, a human rights treaty, it had to seek the interpretation:271

264 Oliver Dörr, ‘Article 33:  Interpretation of Treaties Authenticated in Two or More Languages’ in Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties (Springer Verlag 2012) 588. 265 Aust (n 57) 225. 266 Dörr, ‘Article 33: Interpretation of Treaties Authenticated in Two or More Languages’ (n 264) 588; Villiger (n 57) 448 Art. 32 N. 12. 267 Villiger (n 57) 460 Art. 33 N. 11. 268 Dörr, ‘Article 33: Interpretation of Treaties Authenticated in Two or More Languages’ (n 264) 600. 269 Villiger (n 57) 455. 270 The Mavrommatis Palestine Concessions (Greece v Britain) Judgment 1924 P.C.I.J. (ser. B) No. 3 (30 August 1924 (pcij). 271 Wemhoff v Germany app no 2122/​64 (echr, 25 April 1968) at para. 8.

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that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties. Given that the Refugee Convention is also a human rights treaty, the same principles ought to prevail as pronounced in the Wemhoff case. In practice, courts may give preference to the language in which a treaty has been drafted, even though other authentic language versions would be equally authoritative.272 This may be compatible with using the travaux préparatoires and the fact that the treaty might have been negotiated in one language.273 However, it is important to note that the ilc deliberately omitted such a rule and not too much emphasis may be placed on the fact that a treaty was drafted in one language.274 The Refugee Convention was negotiated and drafted in English. However, it is authenticated in both English and French.275 The French version of the refugee definition provides as follows: … craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un certain groupe social ou de ses opinions politiques, se trouve hors du pays dont elle a la nationalité et qui ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays … The rules set out in Art. 33 vclt concerning different authoritative language versions of a treaty are applicable to an interpretation of the refugee definition. This book proceeds on the basis of the English version, as there is no conflict between the French and English versions of the Refugee Convention. 12 Conclusion The above analysis of the Refugee Convention in accordance with the vclt has shown that several of the interpretive elements under the vclt provide support for an evolutionary interpretation of the refugee definition. The ordinary

272 Aust (n 57) 226; Dörr, ‘Article 33: Interpretation of Treaties Authenticated in Two or More Languages’ (n 264) 598. 273 Dörr, ‘Article 33: Interpretation of Treaties Authenticated in Two or More Languages’ (n 264) 594. 274 Dörr, ‘Article 33: Interpretation of Treaties Authenticated in Two or More Languages’ (n 264) 590, 598–​599. 275 Refugee Convention, Conclusion after Art. 46.

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meaning of Art. 1A(2) Refugee Convention, its context and its object and purpose all support an interpretation which is evolutionary. With an evolutionary approach, the refugee definition takes account of the changing circumstances in which persons around the world are being persecuted. In addition, subsequent agreement and practice and supplementary means of interpretation also indicate that an evolutionary interpretation is warranted. The next subchapter brings together the threads of the analysis in this subchapter. Subchapter D provides a detailed summary of the individual aspects of the vclt supporting an evolutionary approach to the refugee definition (in subchapter D.1), a detailed summary of the vclt elements supporting a human rights approach to the refugee definition (in subchapter D.2), and a detailed analysis of the vclt elements supporting a disability-​specific refugee definition in light of the crpd (in subchapter D.3). D

An Evolutionary and Human Rights Approach to the Refugee Definition

An Evolutionary Interpretation of the Refugee Convention 1 An interpretation of the Refugee Convention which takes account of recent developments in the area of international human rights law, particularly the crpd of 2006, is necessarily an evolutionary one. A  static interpretation in turn could not take account of such a subsequent international development, as its interpretation is fixed in time by reference to the point of its conclusion. While there is no agreement as to whether an evolutionary interpretation is actually possible strictly within the confines of the vclt, or whether this necessarily involves going beyond or outside the vclt,276 it is clear that several elements of Arts. 31 and 32 vclt support an evolutionary interpretation of the Refugee Convention. The ordinary meaning of the terms of the refugee definition (Art. 31(1) vclt) is a first indicator of an evolutionary interpretation. The use of generic terms such as ‘being persecuted’ or ‘particular social group’ and the lack of a definition of all other key elements of the refugee definition clearly support an evolutionary approach. As has been observed in the domestic jurisprudence set out above in subchapter C.3, the drafters of the Refugee Convention deliberately left these elements vague so as to permit an evolution of the refugee definition over time, which takes account of changing circumstances. 276 Djeffal (n 45) 35.

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Further, the context of the refugee definition (Art. 31(1) vclt), particularly the Preamble and the title of the Convention indicate that the focus of the Convention lies on the protection of human rights and refugee rights. This human rights objective further speaks in favour of an evolutionary approach to the definition and the reference to the udhr in the Preamble indicates the close relationship between refugee status and the protection of international human rights, as will be further discussed below in subchapter D.2. The reference to the udhr in the Preamble also informs the object and purpose of the Refugee Convention (Art. 31(1) vclt), which is humanitarian in nature and protection-​oriented. This supports the view that the refugee definition, as a gate-​keeper provision to a status with various rights and entitlements, must be interpreted in a broad and inclusive, rather than restrictive, manner. The human rights objective of the Refugee Convention also places it within the group of international human rights treaties, which are generally, by their very nature, considered as subject to an evolutionary interpretation. Together with the principle of good faith, this human rights objective also supports an interpretation which is in line with evolving circumstances and the internally agreed minimum standards in the form of international human rights obligations. Subsequent agreements of the States parties to the Refugee Convention (Art. 31(3)(a) vclt), in particular the 1967 Protocol and the December 2001 Declaration of the Ministerial Meeting of States parties to mark the 50th anniversary of the Refugee Convention277, further support the view that it is the intention of the States parties that the refugee definition remains flexible and broad in its reach and adapts to ‘the evolving environment in which refugee protection has to be provided’ (Preamble to the 2001 Declaration, para. 6). As has been seen above, subsequent practice (Art. 31(3)(b) vclt) is difficult to establish in the context of the Refugee Convention, as the requirements of consistency and at least acquiescence of all the States parties to the Refugee Convention is very difficult to establish.278 However, it is arguable that there is now a consistent state practice in relation to the fact that the refugee definition is evolutionary in nature. At least in the jurisprudence of the asylum states with judicial asylum decisions, it has been recognised that the Refugee Convention, like other human rights treaties, is a living instrument. Courts around 277 ‘Declaration of States Parties to the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12–​13 December 2001’ (n 138). 278 See for instance the retrogressive developments in Australia which can be viewed as express counteracting of international refugee law developments discussed in Kirk (n 19).

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the world rely on an evolutionary interpretation of the Refugee Convention.279 This is evidenced for instance by the evolution of its protective scope to include non-​state actor persecution in all major asylum states (for a detailed treatment of this, see further Chapter iv of this book).280 In addition to state practice, unhcr’s and unhcr ExCom’s positions support the evolutionary approach. These guidelines do not fall within the strict confines of Art. 31 vclt and unhcr and the unhcr ExCom are not mandated to provide the single authoritative interpretation of the refugee definition. However, their guidelines may provide good evidence of subsequent practice. In addition, they may be relied on as supplementary means of interpretation under Art. 32 vclt in order to confirm or determine the meaning of the refugee definition in Art. 1A(2) Refugee Convention. Furthermore, they provide evidence of the practice of unhcr itself in the context of refugee status determination procedures under the Refugee Convention. Since the ExCom Conclusions and some unhcr Guidelines are directed at unhcr, they constitute evidence of unhcr’s practice. unhcr also clearly supports an evolutionary interpretation of the refugee definition. unhcr takes into account current human rights standards and justifies this by stating that the reference to the udhr in the Refugee Convention’s Preamble points to ‘the aim of the drafters to incorporate human rights values 279 UN General Assembly, International Law Commission (n 49) 216; Foster (n 49) 63 citing Shah 1998, at 152, ca: the Refugee Convention must be seen ‘as a living thing’, otherwise it will become ‘an anachronism’; see also Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3 (Supreme Court of Canada) [87], and R v Special Adjudicator, ex p Hoxha (n 133) at para. 7; Carlier (n 12) 76; Volker Türk and Frances Nicholson, ‘Refugee Protection in International Law: An Overall Perspective’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (unhcr 2003)  38–​39, referring to R v Uxbridge Magistrates Court & Anor, ex p Adimi (n 37) and Refugee Appeal No. 71462/​99, New Zealand Refugee Status Appeals Authority, 27 Sept. 1999; and R v Secretary of State for the Home Department, ex p. Adan (n 86); in relation to the ECtHR see e.g. Dörr, ‘Article 31: General Rule of Interpretation’ (n 46) 535. 280 Türk (n 56)  107; Storey (n 20)  459 noting that Art. 1A(2) had over time broadened out to ‘encompass non-​state and individualised iniquities yet to be inflicted’; in Europe this was harmonised with the advent of the Council Directive 2004/​83/​EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L 204/​12, 30 September Art. 6(c) which changed the practice of France and Germany, countries which had previously applied the accountability theory. All other major asylum receiving states had already used the protection theory; for Switzerland, see however Maiani (n 16)  23 who notes that the change from the accountability theory to the protection theory only took place after the approach had changed at EU level.

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in the identification and treatment of refugees, thereby providing helpful guidance for the interpretation, in harmony with the Vienna Treaty Convention, of the provisions of the 1951 Convention’.281 Similarly, the unhcr ExCom has stressed that ‘refugee law is a dynamic body of law’. Refugee law is informed by the object and purpose of the Refugee Convention and applicable regional refugee protection instruments.282 It is further influenced ‘by developments in related areas of international law, such as human rights and international law bearing directly on refugee protection’.283 Further, relevant rules of international law (Art. 31(3)(c) vclt) cannot meet the requirement that they apply between either all the parties to the Refugee Convention or between the parties to a dispute. None of the international human rights treaties have exact co-​extensive membership with the Refugee Convention.284 Disagreement persists as to whether precise co-​extensive membership is required in the case of multilateral treaties or whether a vast majority of membership overlap is sufficient. If the latter were the case, standards, which reflect a common intention of all parties, may qualify nevertheless under Art. 31 (3)(c) vclt, even without co-​extensive membership. It appears to be the correct view, however, that this common intention justifies taking account of international law norms under Art. 32 vclt as supplementary means, rather than under Art. 31(1)(c) vclt. Indeed, both state practice and international legal rules which do not meet the requirements of Art. 31(3)(c) vclt are pertinent as ‘supplementary means of interpretation’, if the meaning of the refugee definition is ambiguous or obscure pursuant to Art. 32 vclt. Thus, international human rights treaties like the crpd may be referred to on the basis of Art. 32 vclt, as is further considered below in Subchapter D.3. Finally, the travaux préparatoires and the circumstances of the conclusion of the Refugee Convention, in particular the end of the Third Reich and Nazi Germany are pertinent to the interpretation of the definition of who ought to be entitled to protection. As set out above, the drafting history and the circumstances of the treaty’s conclusion support an evolutionary interpretation, as they indicate that the intention of the drafters was that the definition remained

2 81 unhcr (n 85) at para. 4. 282 unhcr ExCom, ExCom Conclusion on the Provision of International Protection Including Through Complementary Forms of Protection (2005) (31 May 2006) para. (c). 283 unhcr ExCom (n 282) para. (c). 284 See Foster (n 49) 55 fn 102 noting that not even membership of the iccpr and the icescr is identical with the Refugee Convention, with 12 States parties to the Refugee Convention not having ratified the iccpr and 15 not having ratified the icescr.

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flexible enough to adapt to future atrocities. Indeed, if the Refugee Convention is to retain its relevance today and to protect today’s and tomorrow’s refugees, an evolutionary interpretation of the refugee definition is necessary.285 In addition to an analysis under the vclt, structural arguments also support an evolutionary interpretation. The Refugee Convention is a multilateral treaty, which is subject to ongoing judicial decision-​making in numerous States parties, and which is intended to be of an unlimited duration. In addition to it being a human rights treaty, which as such is subject to an evolutionary interpretation, these structural factors all speak in favour of an evolutionary interpretation of the Refugee Convention.286 Does this mean that the refugee definition changes its meaning entirely over time, with an entirely different meaning today from what it was at its inception in 1951? It does not. The elements of the refugee definition are sufficiently open-​ended to adapt to these new situations, but these elements do not change their meaning. It remains an interpretive exercise, an interpretation of the existing refugee definition, not a re-​writing of it. As the International Law Commission has emphasised, interpretation ‘constructs the meaning of the instrument by a legal technique […] that involves taking account of its normative environment’.287 Interpretation can and must not add to or diminish rights, it cannot altogether change the refugee definition. As the UK House of Lords has put it: ‘while [the Refugee Convention’s] meaning does not change over time, its application will’.288 This evolutionary character of the refugee definition also means that the refugee definition in Art. 1A(2) cannot be interpreted in isolation of other international law bearing on similar issues. Rather, it must be interpreted in light of the prevailing norms of relevant international law in force today.289 2 The Human Rights Approach to the Refugee Definition Once it is accepted that the refugee definition is subject to an evolutionary interpretation the next question is what relevance current international human rights standards have to an evolutionary interpretation of the refugee definition. Scholars have advocated an interpretation of the refugee definition

285 Carlier (n 12) 70; North, Anthony M. and Nehal Bhuta, ‘The Future of Protection –​The Role of the Judge’, The Changing Nature of Persecution (iarlj 2000) 281. 286 See in particular Djeffal (n 45) 32–​33. 287 UN General Assembly, International Law Commission (n 49) 226. 288 Sepet and Bulbul v Secretary of State for the Home Department (n 1) per Lord Bingham. 289 Türk and Nicholson (n 279) 39.

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in light of current international human rights law, and this approach has been termed ‘the human rights approach’. There are several arguments in favour of the human rights approach. Firstly, the objective of the human rights approach is, as Maiani observes, to ensure a universal interpretation, objectively anchored in international human rights standards enabling the emergence of an international consensus on the true meaning of the refugee definition.290 Burson calls this the ‘consistency justification’ and states that human rights provide for a more objective standard for the scope of refugee protection than other, more subjective concepts, such as reasonableness or toleration of harm.291 As Storey points out, even if human rights are ‘ideological constructs’ of our societies, they are such constructs that are accepted worldwide, as evidenced by ratification rates of UN human rights treaties.292 Related to this is a second justification, the ‘transparency justification’, that international human rights law as a basis for the interpretation of the refugee definition provides an open basis for discussion of its scope.293 Thirdly, it has been argued that the human rights approach enjoys a ‘legitimacy justification’.294 International human rights treaties are the very standards that the vast majority of States parties to the Refugee Convention have agreed as minimum standards, as ‘unacceptable infringements of human dignity’.295 It provides a ‘dialogue of justification’ by reference to international human rights norms.296 290 Maiani (n 16) 26 noting, however, that it would be erroneous to think that such a consensus has been reached today; see also Storey (n 20) 468; Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning on the Relations between Refugee Law and International Human Rights Law’, Human Rights and Immigration (Oxford University Press 2014) 26 describing human rights law as a ‘universal and uniform set of standards’ for the harmonisation of ‘unilateral and frequently diverging interpretations of states parties’. 291 Bruce Burson, ‘Give Way to the Right: The Evolving Use of Human Rights in New Zealand Refugee Status Determination’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 31–​32, referring to Refugee Appeal No. 74665 (n 86) at para. 115; and bg (Fiji) *Precedent* [2012] nzipt 800091 (New Zealand ipt) at para. 109; see also Chetail (n 290) 26. 292 Storey (n 20) 477. 293 Burson (n 291) 30. 294 Burson (n 291) 29–​30. 295 James Hathaway, ‘The Relationship Between Human Rights and Refugee Law:  What Refugee Law Judges Can Contribute’ in IARLJ (ed), The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary (1998) 85; Burson (n 291) 29–​30, referring to Refugee Appeal No. 74665 (n 86) at para. 66. 296 Hathaway, ‘The Relationship Between Human Rights and Refugee Law’ (n 295) 85.

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Fourthly and perhaps most importantly in the instant analysis, the human rights approach is justified on the basis of an evolutionary or dynamic interpretation of the refugee definition, referred to by Burson as ‘dynamism justification’.297 As Chetail observes, the rules of treaty interpretation according to the vclt require an interpretation within the framework of the prevailing legal system, which includes international human rights law.298 The analysis in Subchapter C above has also shown that several elements of the vclt rules of interpretation support a human rights approach to the refugee definition. In particular, pursuant to Art. 31(1) vclt the context and object and purpose of the refugee definition make it clear, through the preambular reference to the udhr, that international human rights are pertinent to the refugee law regime.299 While the drafters could not, at the time of the adoption of the Refugee Convention, refer to more modern human rights treaties, which all post-​date the adoption of the Refugee Convention, this reference to the udhr places the Refugee Convention clearly in the context of international human rights law. Indeed, as Hathaway points out, because the Refugee Convention was only the second binding UN human rights treaty and came into force two decades before the iccpr and icescr, and because refugees are entitled to rely on general human rights treaties too and the content of the two regimes overlaps, ‘it is important that some coherence be given to cognate concepts under the treaties’.300 Cantor criticises that the preambular reference to the udhr is insufficient as a ‘hook’ for the human rights approach, stating that there is ‘no direct reference to human rights law’ in general.301 However, he firstly pays little attention to the temporal aspect, namely that it took another fifteen years after the adoption of the Refugee Convention until the iccpr and the icescr were adopted.302 Secondly, he disregards that the following further aspects of an interpretation according to the vclt support the human rights approach. 297 Burson (n 291)  30; see also Hathaway, ‘The Relationship Between Human Rights and Refugee Law’ (n 295) 86. 298 Chetail (n 290) 25. 299 See e.g. Gonzaga (n 19) 240. 300 Hathaway, The Rights of Refugees (n 91) 64. 301 David James Cantor, ‘Defining Refugees: Persecution, Surrogacy and the Human Rights Paradigm’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition  –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) in particular 370 et seq. 302 Regarding the temporal aspect see also Michelle Foster, ‘Economic Migrant or Person in Need of Protection? Socio-​Economic Rights and Persecution in International Law’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​ Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 231–​232

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A further important element in support of the human rights approach is Art. 31(3)(a) vclt. The subsequent agreement of the States parties to the Refugee Convention, in the form of the December 2001 Declaration of the Ministerial Meeting of States parties to mark the 50th anniversary of the Refugee Convention303 confirms this. It constitutes perhaps the most express recognition of the States parties in recent times that the refugee law regime, and with it the refugee definition, needs to adapt to changing circumstances and take account of ‘ongoing violations of human rights and international humanitarian law’ (Preamble to the 2001 Declaration, para. 6). In addition, while international human rights treaties may not qualify as relevant rules applicable in the relations between the parties within the strict meaning of Art. 31(3)(c) vclt, international human rights treaties which reflect the ‘common intention’ of the States parties and benefit from a wide ratification are relevant to the refugee definition, where its meaning in a particular context is ambiguous or obscure. They are at least supplementary means of interpretation under Art. 32 vclt. As Hathaway points out, the icj held in the South West Africa case that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’.304 More pertinently still, the icj held in Gabćikovo-​Nagymaros Project (Hungary/​Slovakia) case that ‘[t]‌reaties that affect human rights cannot be applied in such a manner as to constitute a denial of human rights as understood at the time of their application’.305 Moreover, in accordance with Art. 31(1) vclt the ordinary meaning of the refugee definition, while not expressly mandating a human rights approach, has been phrased in a deliberately open-​ended manner –​only increased in its flexibility through the 1967 Protocol, which is pertinent under Art. 31(3)(a) vclt –​enough to account for current developments in international human rights law. It is thus important to interpret the refugee definition in a manner that is consistent with those human rights treaties that have achieved wide, almost who argues persuasively against this that the Refugee Convention was written against the background of international human rights law; referring to Applicant A v Minister for Immigration and Ethnic Affairs (n 86) 296–​297 (per Kirby J). 303 ‘Declaration of States Parties to the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12–​13 December 2001’ (n 138). 304 Hathaway, The Rights of Refugees (n 91) 66; referring to Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (n 71) at para. 53. 305 Gabčikovo-Nagymaros Project (Hungary v Slovakia) (n 59)  at paras. 114–​114 (per Judge Weeramantry), also cited in Hathaway, The Rights of Refugees (n 91) 66 fn 197.

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universal ratification as part of the prevailing system of international law and ‘thus promoting systemic integration and normative consistency’.306 A  human rights-​compatible interpretation of the refugee definition is further confirmed by the supplementary means of interpretation of the circumstances of the Refugee Convention’s conclusion. As the second binding UN human rights treaty, the Refugee Convention very much marks the beginning of an international human rights movement, as noted above, in Subchapter C.10. It is noteworthy that ratification rates, and not compliance rates, must be the benchmark for the pertinence of international human rights treaties. As Lord Hoffman noted in Sepet and Bulbul, the instruments show recognition that such rights ought to exist, whether or not they are being complied with on a large scale.307 The relevance of international human rights treaties to the refugee definition is also confirmed by state practice and the practice of unhcr. Again, while such state practice is not sufficiently consistent to meet the strict requirements of Art. 31(3)(b) vclt, it is instructive as supplementary means of interpretation according to Art. 32 vclt. Human rights were recognised as relevant to the refugee definition perhaps in one of the earliest jurisdictions in Canada as early as 1979.308 In 1993 the Supreme Court of Canada endorsed the human rights paradigm in its landmark decision of Canada (Attorney General) v. Ward.309 La Forest J based the human rights approach on the expression of the international community’s commitment to the assurance of basic human rights without discrimination in the preamble to the Refugee Convention and continued: This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway […] thus explains the impact of this general tone of the treaty on refugee law …310

3 06 Hathaway and Foster (n 15) 9. 307 Sepet and Bulbul v Secretary of State for the Home Department (n 1) at para. 41 (per Lord Hoffman), cited in Foster (n 49) 57. 308 James Hathaway, The Law of Refugee Status (1st edn, Butterworths 1991) 108, citing Veloso, Immigration Appeal Board Decision 79–​1017 (24 August 1979) (Immigration Appeal Board of Canada), also referred to in Symes and Jorro (n 63) mn 3.3 fn 8. 309 Canada (Attorney General) v Ward (n 114); see also Chan v Canada (Minister for Employment and Immigration) [1995] 3 scr 593 (Supreme Court of Canada). 310 Canada (Attorney General) v Ward (n 114), at 733E-​734E.

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The United States311 also applies a human rights approach and has implemented this in training manuals for first-​tier decision makers, emphasising the relevance of international human rights law to asylum decision-​making, and the US Supreme Court and key federal court regularly apply it in their decisions.312 Indeed, the US applied a human rights approach as early as 1987 in ins v. Cardoza-​Fonseca.313 Circuit courts have also relied on the udhr in order to determine certain human rights violations in the refugee law context.314 In New Zealand the development started with the Refugee Status Appeals Authority (rsaa) in 1996, whose decisions have never been overturned by the higher courts of New Zealand in respect of the human rights approach.315 The rsaa held that international human rights represent a ‘common international standard’ which is the benchmark for refugee status determination.316 Further, the rsaa affirmed that ‘core norms of international human rights law are relied on to define forms of serious harm within the scope of persecution’.317 In the United Kingdom the judiciary has generally accepted that human rights instruments may inform the interpretation of the refugee definition and the development of this seems to have begun in the mid-​1990s.318 The human rights paradigm subsequently found general acceptance in the case law of the highest court, the House of Lords, from the late 1990s onwards.319 More 311 It is noteworthy that the US has only signed and ratified the 1967 Protocol but not the Refugee Convention, although it views itself as implementing the Refugee Convention through its ratification of the 1967 Protocol without the geographical and temporal limitations, see Anker and Vittor (n 179) 109 fn 2. 312 Anker and Vittor (n 179) 110, 117 et seq. 313 INS v Cardoza-​Fonseca (1987) 480 US 421 (US Supreme Court); for a more recent decision, see e.g. Negusie v. Holder (n 179) 518, cited in Anker and Vittor (n 179) 113. 314 Anker and Vittor (n 179) 123–​125 with further references. 315 Burson (n 291) 28–​29; see further Refugee Appeal No 2039/​93 Re MN (New Zealand rsaa) at para. 51; Refugee Appeal No 1039/​93 Re HBS and LBY (New Zealand rsaa) referring to cedaw; Refugee Appeal No 76226 and 76227 [2009] nzrsaa 3 (New Zealand rsaa) referring to the crc; Refugee Appeal No 76512 [2010] nzrsaa 73 (New Zealand rsaa) referring to cerd. 316 Refugee Appeal No 2039/​93 Re MN (n 315) at para. 9. 317 Refugee Appeal No 71427/​99 [2000] nzar 545 (New Zealand rsaa) at para. 51; see further Burson (n 291) 32–​33. 318 For the chain of case law on the human rights approach developed from Ravichandran [1995] Imm ar 96 (UK Court of Appeal), see Symes and Jorro (n 63) 15–​16 mn 1.14 fn 2, and 122 mn 3.3. 319 Islam v SSHD; R v IAT, ex p. Shah (n 117) 639 (Lord Steyn); Horvath v Secretary of State for the Home Department [2001] 1 ac 489 (UK House of Lords) (Lord Clyde); Sepet and Bulbul v Secretary of State for the Home Department (n 1) at para. 41 (Lord Hoffmann); hj (Iran) and ht (Cameroon) v Secretary of State for the Home Department [2011] 1 ac 596 (UK Supreme Court) at para. 14 (Lord Hope).

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recently, the UK Supreme Court confirmed the human rights approach to the refugee definition in the case of rt (Zimbabwe) and relied on the udhr, the iccpr as well as case law of the UN Human Rights Committee and the European Court of Human Rights.320 Further, the EU Qualification Directive and its Recast incorporate a human rights approach to different elements of the refugee definition, which has led to a further increase in the number of states (including the less typical civil law jurisdictions) recognising a human rights approach for instance to the definition of persecution in Art. 9 EU Qualification Directive.321 While the EU Qualification Directive standards have not led to a uniform application of the human rights approach across the EU, it has nevertheless had an impact on domestic jurisprudence and strengthened the influence of the human rights approach.322 Indeed, the European Chapter of the International Association of Refugee Law Judges has recognised in a survey for the European Asylum Support Office (easo) that international human rights norms are pertinent to an interpretation of the refugee definition in the EU Recast Qualification Directive and particularly its Art. 9.323 Moreover, as has been alluded to above, the cjeu interpretation of the Qualification Directive cannot prevent EU member states from applying a more generous interpretation to the refugee definition under the Refugee Convention. For instance, the UK House of Lords held in Fornah that Art. 10(1)(d) EU Qualification Directive defining a particular social group had to be read more generously, as not requiring cumulatively both an immutable characteristic and social discrimination, but only either one of the two.324 320 rt (Zimbabwe) v Secretary of State for the Home Department [2013] 1 ac 152, discussed in Raza Husain, ‘International Human Rights and Refugee Law: The United Kingdom’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​ Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 147–​148. 321 See further on this: Symes and Jorro (n 63) n 3.5; Kate Jastram, ‘Economic Harm as a Basis for Refugee Status and the Application of Human Rights Law to the Interpretation of Economic Persecution’ in James C Simeon (ed), Critical Issues in International Refugee Law, Strategies Toward Interpretative Harmony (Cambridge University Press 2010) 163. 322 See for instance the discussion of this in Roland Bank, ‘Refugee Law Jurisprudence from Germany and Human Rights: Cutting Edge or Chilling Effect?’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 164–​165. 323 easo, ‘Qualification for International Protection (Directive 2011/​95/​EU):  A Judicial Analysis, Produced by the International Association of Refugee Law Judges, European Chapter (IARLJ-​Europe)’, December 2016, 17–​18  . 324 Husain (n 320) 152, observing that this is also consistent with the recent cjeu decision in Bundesrepublik Deutschland v B and D Cases C-57/09 and C-101/09 (CJEU)

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As stated above, the human rights approach is also advocated by unhcr. For instance, human rights are referred to as pertinent to the refugee definition in its Handbook325 and in various unhcr Guidelines.326 unhcr is of the view that it was the aim of ‘the drafters to incorporate human rights values in the identification … of refugees, thereby providing helpful guidance for the interpretation’ of the Refugee Convention.327 The human rights paradigm also enjoys the support of the International Association of Refugee Law Judges.328 A special case now is Australia, where new legislation has been introduced seeking to isolate the application of the refugee definition domestically from international refugee law.329 Formerly, the Australian High Court had accepted that the Preamble of the Refugee Convention indicated that the protection of the equal enjoyment by every person of fundamental rights and freedoms was object and purpose of the Refugee Convention.330 This led the Australian courts to rely on major human rights treaties in the interpretation of the refugee definition, including the iccpr and cedaw331, and cat332. Kirby J held in his speech in nabd of 2002 concerning a Christian convert from Iran and his right to religious freedom that ‘the Convention is a practical means of “providing tangible redress from certain basic human rights violations”, making it amongst “the foremost international human rights instruments” ’.333 The 3 25 unhcr (n 32) at paras. 51, 53–​55, 68–​69, 71. 326 See for instance unhcr, Guidelines on International Protection No. 1:  Gender-​Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/​or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, hcr/​g ip/​02/​01; unhcr, Guidelines on International Protection No. 6: Religion-​Based Refugee Claims under Article 1A(2) of the 1951 Convention and/​or the 1967 Protocol relating to the Status of Refugees, 28 April 2004, hcr/​ gip/​04/​06; or unhcr, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/​or 1967 Protocol relating to the Status of Refugees, 22 December 2009, hcr/​g ip/​09/​08. 327 unhcr (n 85) 1 mn 4. 328 James C.  Simeon, ‘HRNWP Rapporteur’s Report’, in:  IARLJ, The Changing Nature of Persecution, 30, 314. 329 See further on this Kirk (n 19). 330 A v Minister for Immigration and Ethnic Affairs (1997) 190 clr 225 (Australian High Court), per Brennan CJ; Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14 (High Court of Australia), per Kirby J; NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] hca 29 [108–​109].Refugee Appeal No 1039/​93 Re HBS and LBY referring to cedaw; Refugee Appeal No 76226 and 76227 (n 294) referring to the crc; Refugee Appeal No 76512 [2010] nzrsaa 73 referring to the cerd; ac (Egypt) (n 296) referring to the crpd. 331 Minister for Immigration and Multicultural Affairs v Khawar (n 14). 332 Minister for Immigration and Multicultural Affairs v Khawar (n 14). 333 NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (n 116) at para. 110.

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human rights approach was enjoying increasing acceptance at the level of the Refugee Review Tribunal and at the Federal Court level.334 As already pointed out above, any reference to the Refugee Convention has been removed from the amended Migration Act with the goal of an isolated domestic refugee definition.335 However, such restrictive practices must in any event be viewed with particular caution. Their relevance as subsequent practice is very doubtful in the context of international human rights treaties. Hathaway stresses that in the context of human rights law, the aim of the treaty is to ‘limit state authority for the benefit of third parties’; such treaties are ‘less a contract than universally valid regulation of objective law’.336 In the case of such a law-​making treaty, the weight to be attached to contemporary state practice must be carefully assessed. State practice may not determine the extent of the human rights protection of the individual vis-​à-​vis the state.337 In fact, interpretive principles which apply in the context of international treaties that are more contractual in nature, such as in dubio mitius, are of limited value in the context of a human rights treaty whose aim it is precisely to restrict ‘state sovereignty in the interests of advancing more general goals for the international community as a whole’.338 As Foster observes, it can ‘hardly be consistent with the non-​derogable nature of art. 1A(2) for domestic courts to undertake subjective and idiosyncratic interpretations, according to their own notions of the kinds of applicants deemed worthy to receive protection under the Refugee Convention scheme’.339 Particular caution is therefore necessary as regards state practice, where a state explicitly excludes the possibility of an interpretation of domestic law consistent with the state’s international law obligations under the Refugee Convention, as is the case in Australia. In conclusion, the human rights approach enjoys widespread support in domestic practice and at unhcr level and has been described as the ‘dominant view’ in international refugee law.340 This is well-​illustrated by the fact that the case law of many states has evolved over the years to take account of gender-​specific, child-​specific or lgbti-​specific needs. This

3 34 Foster (n 49) 28 n 8 with further references. 335 See further on this Kirk (n 19) 77–​78. 336 Hathaway, The Rights of Refugees (n 91) 72. 337 Hathaway, The Rights of Refugees (n 91) 71–​72; Hathaway and Foster (n 15) 12. 338 Hathaway, The Rights of Refugees (n 91) 73. 339 Foster (n 49) 36. 340 Foster (n 49) 31 with further references in n 14.

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evolving nature of the refugee definition is aptly summarized by Alexander Aleinikoff:341 Decisions of national and international courts and administrative adjudicators have recognized claims, for example, based on gender and sexual orientation discrimination, gang violence, female genital cutting, restrictions on reproductive freedom and blood feuds … [c]‌onscientious objection to military service …, under certain circumstances, … [a]nd victims of persecution by non-​state actors …” What this means in practice is that the refugee definition has over the years adapted to new situations of persecution. Its evolution has taken place against the background of international human rights law. Courts from various jurisdictions have relied on other human rights treaties in the interpretation of the Refugee Convention. For instance, in the context of persecution, the Supreme Court of Canada has held that ‘the essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way’.342 How the human rights approach impacts on the claims of persons with disabilities, however, also depends on the relevance of the cprd to the interpretation of the refugee definition. This will be considered in the next subchapter. 3 The Relevance of the crpd under the Human Rights Approach In the context of the instant book, the central question is whether the crpd qualifies as a relevant human rights benchmark for the interpretation of the refugee definition. The reason why the crpd may be instructive to an interpretation of the refugee definition is that this human rights treaty recognises the specific needs of persons with disabilities and translates the existing human rights into a language which makes them become a reality for persons with disabilities. As has been set out above, human rights treaties have been taken into account where they reflect the common intention of the States parties. This is defined by reference to ratification rates of an international human rights treaty, rather than the extent of compliance with it. Ratification rates are a measure for the degree of acceptance that such human rights guarantees have

341 T Alexander Aleinikoff, ‘The Mandate of the Office of the United Nations High Commissioner for Refugees’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar Publishing 2014) 394–​395. 342 Chan v Canada 1995 cited in: McAdam (n 30) 104 mn 86.

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achieved as minimum standards, below which a certain behaviour is considered unacceptable. Hathaway has explained this threshold as follows:343 it is important not to rely on treaties that remain short on serious support from states. Until and unless we are able honestly to say that a given treaty enjoys general support, it ought not to be used to interpret a term in what is meant to be a universal treaty on refugee protection. In practical terms, one might reasonably consider looking for ratification of a given treaty by a respectable super-​majority  –​for example, two thirds of the United Nations membership, including some support in all major geo-​political groupings. Similarly, in the 2014 edition of The Law of Refugee Status Hathaway and Foster observe that ‘one should expect to see the norm having been ratified by a super-​majority of states across a politically and geographically diverse range of states’.344 It is generally agreed amongst proponents of the human rights approach that the iccpr and the icescr can be relied upon in the interpretation of the refugee definition in addition to the udhr as the three of them taken together constitute ‘the International Bill of Human Rights’.345 However, Foster emphasises the importance of going beyond the International Bill of Rights relying on cedaw and gender-​specific claims as an illustration.346 As representatives of several European states, the European Chapter of the International Association of Refugee Law Judges accepts that several UN human rights treaties, including the crpd, are pertinent to the interpretation of the refugee definition in the EU Recast Qualification Directive.347 For once it is accepted that international human rights are relevant to the refugee definition’s interpretation, it is clear that the crpd is a pertinent benchmark. Indeed, Hathaway and Foster conclude that this litmus test is met by the crpd with its high rate of ratifications, in addition to the cerd, cedaw and the crc.348 The 343 Hathaway, ‘The Relationship Between Human Rights and Refugee Law’ (n 295)  86–​87 (emphasis added); Foster (n 49) 56–​58, 66–​67 subsequently endorsed this approach. 344 Hathaway and Foster (n 15) 205. 345 Hathaway, The Law of Refugee Status (n 308)  and see various examples from case law below. 346 Foster (n 49) 65–​66. 347 easo (n 323) 17–​18, 31–​32. 348 Hathaway and Foster (n 15) 201, 205; see also for Hathaway’s assessment in 1998 and thus pre-​c rpd Hathaway, ‘The Relationship Between Human Rights and Refugee Law’ (n 295) 87.

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crpd has now been ratified by 181 States parties and been signed by 163 States parties. Only 6 states out of the 146 States parties to the Refugee Convention are not also parties to the crpd.349 As the UN human rights treaty with the second highest ratification rate after the crc, the crpd certainly meets the necessary threshold of ratification, and thus international acceptance, for its pertinence under the human rights approach to the refugee definition. In fact, the unhcr ExCom also established in its Conclusion on Refugees with Disabilities and Other Persons with Disabilities Protected and Assisted by unhcr (Conclusion No. 110 (lxi) of 2010) that the obligations under the crpd are owed to asylum seekers and refugees that are present on a State Party’s territory.350 It has thus acknowledged the relevance of the crpd rights to Convention refugees. Similarly, the New Zealand Immigration and Protection Tribunal (ipt) reached the same conclusion regarding the crpd in the case of ac (Egypt) by indirectly relying on Hathaway’s approach, in which the Tribunal found:351 As at the date of this decision, some 105 states have ratified or acceded to the cprd including states from the geographic north and south. States parties embrace a variety of political systems and religious traditions; Egypt itself ratified the crpd on 14 April 2008. Taking these factors into account, it is therefore appropriate that the Tribunal treat the cprd as an international law treaty which identifies forms of serious harm and failures of state protection for the purposes of refugee status determination… Taking account of the approach to the human rights of persons with disabilities in the crpd, the shift of focus from the medical to the social model and the

349 Which are Botswana, Equatorial Guinea, Haiti, Liechtenstein, South Sudan and Timor-​ Leste; see also Andreas Dimopoulos, ‘An Enabling Interpretation of the Refugee Convention: Determination of Refugee Status in Light of the Convention on the Rights of Persons with Disabilities’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 254 but at the date of publication of Dimopoulos’ book chapter, it was 12 States parties. 350 That this is also correct as a matter of international human rights law and treaty interpretation is noted in Mary Crock, Christine Ernst and Ron McCallum, ‘Where Disability and Displacement Intersect:  Asylum Seekers and Refugees with Disabilities’ (2012) 24 International Journal of Refugee Law 735. 351 ac (Egypt) [2011] nzipt 800015 (New Zealand ipt) [70], referring to the analysis in Refugee Appeal No. 74665 (n 86) at paras. 68–​69 which set out the Hathaway approach.

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resulting difference in analysis of asylum claims from persons with disabilities would have an important impact on refugee protection for persons with disabilities. How such a shift in perspective influences the interpretation of the refugee definition will be explored in the subsequent chapters of this book.

chapter iii

Serious Harm –​‘Being Persecuted’ It seems as if the drafters have wanted to introduce a flexible concept which might be applied to circumstances as they might arise; or in other words, that they capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men.

They fear this [electroconvulsive therapy, a form of electroshocks (ect)]. We say, ‘if you don’t take your medicine, we will take you to the ect room’ and immediately they say, ‘please don’t take me to that room, I won’t do that again’.

atle grahl-​m adsen, The Status of Refugees in International Law, 19661

Human Rights Watch, ‘ “Treated Worse than Animals” –​Abuses Against Women and Girls with Psychosocial or Intellectual Disabilities in Institutions in India’2

A

Introduction

In the introduction to this book I observed that persons with disabilities experience many forms of persecution which are not commonly accepted as a basis for refugee status. Of course, persons with disabilities also face well-​ known forms of persecution, such as torture, arbitrary imprisonment or killings. The real hurdle, however, is that many forms of persecution take place against the background of discriminatory societal attitudes and in violation of socio-​economic rights, which is less frequently recognised as persecution. For instance, decision-​makers are reluctant to recognise treatment of persons with disabilities as persecutory, when it only affects their exclusion from regular education, employment or health care. However, the approach of decision-​makers still appears to be one of double standards with a lower level

1 Atle Grahl-​Madsen, The Status of Refugees in International Law, Vol. I –​Refugee Character (aw Sijthoff 1966) 193. 2 Human Rights Watch, ‘ “Treated Worse than Animals”  –​Abuses against Women and Girls with Psychosocial or Intellectual Disabilities in Institutions in India’ 3 December 2014 13 .

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004427303_004

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of protection applying to persons with disabilities than to other applicants. The following examples seek to illustrate this. Detaining a person on the basis of her religion or sexual identity without her consent and administering forced treatment to that person in order to cure her of her misguided religious views or her ‘immoral behaviour’ will in most asylum states constitute persecution.3 In contrast, the forced institutionalisation of persons with intellectual or psychosocial disabilities and their forced treatment on the basis of their disability alone is still regularly practised in many countries around the world and often fails to be considered as persecution in the sense of Art. 1A(2) Refugee Convention. Similarly, a discriminatory denial of health care to persons with hiv entailing serious and fatal consequences for those concerned –​because of resource constraints and differing policy preferences  –​will in most jurisdictions not be recognised as persecution. However, if health care were denied to persons on the basis not of their illness but their political opinion for financial reasons, the approach of asylum decision-​makers would likely be different. It would appear that a denial of health care to political dissidents with serious or fatal consequences for those concerned would likely be viewed as persecutory. The segregated education of children on the basis of their race is clearly contrary to human rights norms today and is likely viewed as persecution.4 Yet, segregating children with disabilities from non-​disabled5 children in schooling,

3 See e.g. lla Konstantinova Pitcherskaia v Immigration and Naturalization Service (1997) 95–​ 70887 (United States Court of Appeals for the Ninth Circuit). 4 See for instance the finding of persecution in relation to Roma children in segregated schools in the Czech Republic in Refugee Appeal No 76380 [2010] nzrsaa 88 (New Zealand rsaa); and in ae (Hungary) [2012] nzipt 800325 (New Zealand ipt) at para. 141 also concerning a Roma child from Hungary, finding that the segregation violated the child’s right to education and non-​discrimination. 5 This book uses the term ‘non-​disabled’ rather than ‘able-​bodied’, as able-​bodiedness is a bit of a myth. It implies a lack of physical or mental impairments which is very rare amongst non-​disabled persons, as even non-​disabled persons often suffer from visual impairments, hearing impairments, limited mobility impairments, or mental health conditions, such as depression, which can however be remedied with adequate adjustments, such as spectacles, hearing aids, surgery or medication so that these impairments are not disabling in day-​to-​ day life. On the human condition as one of natural vulnerability, see Martha Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law & Feminism 1, 8; Martha Albertson Fineman, ‘Equality, Autonomy, and the Vulnerable Subject in Law and Politics’ in Martha Albertson Fineman and Anna Grear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate 2013) 20.

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is still regularly viewed as justified on the basis of resource constraints.6 Under the crpd separate schooling of children with disabilities is likely to violate the rights to inclusive education, to autonomy and to non-​discrimination, apart from having a destructive impact on the children’s self-​respect7 and perpetuating discriminatory societal attitudes already amongst children.8 Even if the reader is hesitant about the inclusive schooling of children with disabilities –​ after all school segregation of children with disabilities remains widespread also in asylum states9 –​this is at least as much a matter of priorities as it may be of resource constraints. In fact, in many instances the social and human-​ rights based approach underlying the crpd which encompasses the right to inclusion and participation in society, will provide for more cost-​effective solutions than the medical model, with segregated solutions often resulting in higher overall costs.10 Segregated schooling regularly leads to a more segregated life of adults with disabilities, with decreased chances of finding employment and increased reliance on public funds in adult life.11 Calculated over the duration of a person’s life, the costs of segregated schooling of persons with disabilities may therefore be at least as high if not higher than those of inclusive education. The acceptability of the segregated schooling of children with disabilities thus also depends on prevailing societal attitudes. If there is the necessary readiness on the part of the state, such attitudes may in fact change in a short period of time. Not too long ago, racial segregation was still justified 6

7

8 9 10

11

Council of Europe Commissioner for Human Rights, ‘Fighting School Segregation in Europe through Education:  A Position Paper’ (September 2017)  10  noting that ‘[s]‌chools often put forward economic arguments to deny these children the specific support they require to be able to access mainstream education’. See the citations from Thurgood Marshall’s submissions in Brown v Board of Education 347 U.S. 483 (1954) (US Supreme Court) regarding the impact of segregated schooling on the black children’s self-​respect, stamping them ‘with a badge of inferiority’, cited in Anthony G Amsterdam, ‘Telling Stories and Stories About Them’ (1994) 1 Clinical Law Review 9, 13. Council of Europe Commissioner for Human Rights (n 6) 13–​14. The Commissioner for Human Rights of the Council of Europe points out that this still happens in many Council of Europe Member States Council of Europe Commissioner for Human Rights (n 6) 7–​12. See in particular Anna Lawson, Disability and Equality Law in Britain:  The Role of Reasonable Adjustment (Hart Publishing 2008)  276–​279; see also Stephanie A  Motz, ‘The Persecution of Disabled Persons and the Duty of Reasonable Accommodation: An Analysis under International Refugee Law, the EU Recast Qualification Directive and the ECHR’ in Bauloz, Céline and others (eds), Seeking Asylum in the European Union: Critical Perspectives on the Second Phase of the Common European Asylum System (Brill/​Martinus Nijhoff Publishers 2015) 149. Council of Europe Commissioner for Human Rights (n 6) 13.

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in Apartheid South Africa on the basis that black children are for some reason different from white children,12 something that is clearly viewed as unacceptable in the Western world today. This will be further discussed in subchapters III.B.7 and iii.C.5.7 below. When it comes to persons with disabilities, measures which would in other cases constitute persecution often appear justifiable on the basis of the country of origin’s limited financial resources. Are resource constraints, however, a carte blanche for the denial of equal treatment to persons with disabilities? Is discriminatory resource allocation permissible? Or is it permissible to cut existing funding for persons with disabilities; is discriminatory or retrogressive resource allocation permissible? Human rights law, in particular the standards regarding the progressive realization of social, economic and cultural rights, provides an answer to these questions. As will be demonstrated in this chapter, international human rights law is essential in delineating the contours of the ‘being persecuted’ element of the refugee definition. This book uses the term ‘serious harm’ in order to describe the risk of ‘being persecuted’. However, a risk of ‘being persecuted’ also involves a failure of state protection in the case of persecution at the hands of non-​state actors. The term ‘being persecuted’ can thus be described as involving two aspects, as Lord Hoffmann put it in Shah and Islam: ‘Persecution = Serious Harm + The Failure of State Protection’.13 This second element of persecution, the failure of state protection, will be considered separately in Chapter iv of this book. This Chapter considers disability-​specific forms of serious harm. In subchapter iii.B, it first sets out the most typical disability-​specific forms of persecution and how these have been assessed in the case law on asylum claims. Subchapter iii.C proceeds to an analysis of ‘being persecuted’ in light of the vclt rules of interpretation and in particular in light of international human rights law and the 12 13

See the analysis of the ground-​breaking US Supreme Court judgment in Brown v. Board of Education (n 7), of Amsterdam (n 7) 14 fn 22 citing the pleadings of Marshall Thurgood for Brown. Islam v SSHD; R v IAT, ex p Shah [1999] 2 ac 629 (UK House of Lords) at 653F (Lord Hoffmann); this is also the analysis regularly postulated in scholarship, see e.g. James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014); Andreas Zimmermann and Claudia Mahler, ‘Article 1 A, Para. 2’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Oxford University Press 2011) 345 mn 216–​217 stating that persecution can be described ‘as the severe violation of human rights accompanied by a failure of the State to protect the individual’; Jason Pobjoy, The Child in International Refugee Law (Cambridge University Press 2017); however, some argue that persecution and failure of state protection are separate but ‘interrelated elements’, see Guy Goodwin-​Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2007) 92.

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crpd. subchapter iii.C.6 draws on the preceding subchapters and provides a disability-​specific reading of ‘serious harm’. B

Disability-​Specific Forms of Serious Harm

1 Introduction Persons with disabilities around the world face various forms of harm. Their discrimination is ubiquitous and violence and abuse against them is still prevalent in many societies. The following subchapters set out those forms of harm, which asylum applicants with disabilities most frequently claim. By reference to country background reports and existing case law on persons with disabilities the harm most typically perpetrated against persons with disabilities will be illustrated. This then forms the basis of an assessment in Subchapter iii.C as to whether the different predicaments, which asylum applicants with disabilities regularly flee, amount to ‘serious harm’. The analysis in this subchapter proceeds in the following order. It considers the situation of persons with disabilities in the context of extrajudicial killings and ritual murders (subchapter iii.B.2), forced institutionalisation and forced treatment (subchapter iii.B.3), threats to the physical and moral integrity and security (subchapter iii.B.4), the denial of medical treatment or health care (subchapter iii.B.5), the denial of work or employment and an adequate standard of living as well as denials of accessibility (subchapter iii.B.6), the denial of inclusive education (subchapter iii.B.7), situations of war (subchapter iii.B.8) and the denial of legal capacity (subchapter iii.B.9). 2 Extrajudicial Killings and Ritual Murders In many countries, persons with physical or intellectual disabilities are considered as being possessed by the devil or some evil force. In extreme cases, they get killed in the belief that this will also exorcise the evil spirits. By way of example, in Ghana children born with disabilities are believed to be harbouring spirits and are called ‘spirit children’. In certain rural areas, they are given a fatally poisonous herbal drink by a concoction man in order to determine whether they bring bad luck to the village.14 If they die of drinking it, 14

Alexis Akwagyiram, ‘Paul Apowida: From Ghanaian “spirit Boy” to UK Soldier’ BBC News (26 November 2013) ; Joe Asakibeem and Anna Bruce-​Lockhart, ‘ “Spirit” Children of Ghana’ The Guardian (18 December 2007) .

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it is proof that they had been possessed by evil spirits.15 As a further method of ordeal, children with disabilities receive ‘treatment’ which is otherwise known as torture, in order to exorcise the evil forces or cure them.16 Reports of ritual killings and human sacrifice still surface from many parts of the world.17 A further group of persons who may fall within the definition of persons with disabilities and who are frequently subject to ritual murders are persons with albinism. Persons with albinism often suffer from disabilities (such as visual impairments in addition to the lack of melanin in their skin). In addition, they are perceived to be disabled in many countries (thus falling within the Convention ground of imputed disability, see further on this Chapter vi of this book). Their persecution cuts across several areas of serious harm set out in this Chapter. It notably includes ritual murders, threats to their physical and moral integrity, stigma and discrimination and the denial of work. Indeed, in several countries around the world, persons with albinism are at risk of abuse, mutilation or death today. There are reports of nearly 500 cases of attacks, including murder, physical and sexual violence against persons with albinism across 26 countries.18 These are mainly motivated by the belief that parts of the body of persons with albinism carry magical properties. As a result of this 15 16

17

18

Asakibeem and Bruce-​Lockhart (n 14). Sophie Morgan, ‘The Country Where Disabled People Are Beaten and Chained’ BBC News (28 July 2015)  describing how a girl suffering from epilepsy was ‘treated’ with acidic ‘medicine’ in the eyes, ears and nose in order to cure her from the illness leading to excruciating pain and blood running from her eyes, ears and nose. In relation to Nigeria, see e.g. Edwin Etieyibo and Odirin Omiegbe, ‘Religion, Culture, and Discrimination against Persons with Disabilities in Nigeria’ (2016) 5 African Journal of Disability 192; more generally see Saralyn Salisbury, ‘The Practice of Ritual Killings and Human Sacrifice in Africa’ Human Rights Brief (6 September 2012) ; unicef, ‘Children Accused of Witchcraft: An Anthropological Study of Contemporary Practices in Africa’ April 2011 2  pointing out that one of the main groups considered to be child witches are ‘children with a physical disability (or any physical abnormality, including a large head, swollen belly, red eyes, etc.); those with a physical illness (epilepsy, tuberculosis, etc.) or disability (autism, Down Syndrome, etc., or even those who stutter)’; UN Human Rights Council, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston’ un Doc A/​h rc/​11/​2, 27 May 2009 13–​14 mn 43 et seq.; this extends beyond Africa, see e.g. ‘Tajikistan:  Quacks Making a Comeback’ EurasiaNet (27 November 2013)  concerning a man suffering from intellectual disabilities in Tajikistan, who was beaten with a wooden cane by an imam in an attempt to exorcise evil spirits and bled to death. UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ un Doc A/​ 71/​255 (29 July 2016) 13 para 49.

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belief, there is an underground black market for the body parts of persons with albinism.19 As the Independent Expert on the enjoyment of human rights by persons with albinism has observed:20 The vast majority of attacks against persons with albinism have been carried out in order to harvest body parts. There are beliefs that drinking the blood of persons with albinism gives extra magical power or that it has magical properties and brings prosperity and good luck. Fingers of persons with albinism are reportedly worn as necklaces and amulets. Bones of persons with albinism are used to successfully mine for gold and other desirable minerals. Hands of persons with albinism are burned to ashes and mixed in a paste to cure strokes; blood of persons with albinism is used to boost vitality and intellectual capacity, as well as for political power and business. Hair has been touted as useful for agriculture. Genitals, breasts and placentas are used to cure infertility and create good luck. Ritual killings of persons with albinism are perpetrated in the belief that their body parts will bestow supernatural powers.21 Sometimes it is also believed that a child with albinism ‘is a curse meted out on the mother or family of the child’ or that it is ‘the result of their family’s or parent’s evildoing’ so that children with albinism are also considered a punishment to the whole family and community.22 However, refugee law cases relating to albinism will be discussed in subchapters iii.B.4 and iii.B.5 below, as applicants with albinism mostly claimed harm concerning their physical and moral integrity and their rights to work and social inclusion. In the context of other persons with disabilities, the following cases may serve as an example of a fear of ritual killings:  X (Re) concerned a Nigerian boy with physical and mental disabilities who was suspected of suffering from autism.23 At first instance, the child had been granted refugee status based on both the lack of mental health services and the evidence of widespread ritual 19 20 21 22 23

UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ (n 18) 12 para 45. UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ (n 18) 11 para 39. UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ (n 18) 10 para 36. UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ (n 18) 4 para 7. X (Re) (Nigerian child with physical and mental disabilities) (2015) TB4-​12468; TB4-​12210 (irb (Canada)).

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murders of children with autism in Nigeria. The evidence indicated that children with autism were often stigmatized as witches and suffered death or mistreatment as a result.24 The irb held that while the diagnosis of autism had not been confirmed (and therefore the findings based on ritual murders of autistic children were reversed)25, it did not challenge the finding that the ritual murder of autistic children would have qualified as serious harm. In a similar vein, the Canadian irb held in the case of X (Re) also concerning the refugee claim of a Nigerian family with a son with autism that the child was a refugee. The paternal family of the boy (grandparents and uncles) had threatened and ostracized the boy and asked the father of the boy to oversee his son’s ritual killing, as they believed his autism was caused by evil forces.26 The irb found that ritual murders of people with disabilities were common in Nigeria because of a widespread belief that mental disabilities were caused by supernatural or spiritual forces, such as sorcery, witchcraft, evil spirits, gods or the devil, and that children with autism were particularly at risk.27 Such children ran the risk of being chained, beaten or lynched and were at a heightened risk of falling prey to criminals or cults for organ harvesting.28 Generally speaking, the risk of ritual or other murders is rarely raised as the sole cause for the flight of persons with disabilities.29 While it is trite that a real risk of death would constitute serious harm within the meaning of the Refugee Convention, there is insufficient evidence of the prevalence of ritual murders of persons with disabilities in many countries.30 In the absence of sufficient evidence pointing to a real risk of death, it is nonetheless important 24 25 26 27 28 29

30

X (Re) (Nigerian child with physical and mental disabilities) (n 23) at paras. 35–​36. X (Re) (Nigerian child with physical and mental disabilities) (n 23) at paras. 42–​43. X (Re) (Nigerian mother with son with autism) (2019) TB8-​21213; TB8-​21214 (irb (Canada)) at para. 5. X (Re) (Nigerian mother with son with autism) (n 26) at paras. 40–​42. X (Re) (Nigerian mother with son with autism) (n 26) at para. 42. However see the example of the case of a Colombian who was suffering from intellectual disabilities as a result of a severe head trauma and who feared social cleansing at the hands of paramilitary groups because he was considered undesirable as a result of his disability in Matter of Faronda-​Blandon A74-​979–​517 (ij 15 June 2001) (US), cited in Deborah Anker, Law of Asylum in the United States (Thomson Reuters 2015) 523. See UN Human Rights Council, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston’ (n 14) 13 noting in relation to witchcraft allegations and ritual murders that ‘[t]‌here is little systematic information available on the numbers of persons so accused, persecuted or killed, nor is there any detailed analysis of the dynamics and patterns of such killings, or of how the killings can be prevented. The lack of attention paid to the issue is especially true of the various United Nations human rights bodies that might have been expected to have engaged in in-​depth examination’ at para. 44.

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to appreciate the significance of even a remote risk of death in refugee claims of persons with disabilities. In fact, in many parts of the world extrajudicial killings and ritual murders of persons with disabilities constitute part of the relevant social fabric, indicating the prevalence of stigma, misconceptions, lack of understanding and discriminatory attitudes towards them. 3 Forced Institutionalisation and Forced Treatment In many countries, it remains common to institutionalize persons with disabilities without their informed consent. Such involuntary or forced institutionalisation is often the only solution that the relatives of persons with psychosocial or intellectual disabilities see in order to ‘deal’ with their relative. Lacking state support or assistance for the person’s social inclusion and independent living, many families do not consider themselves capable of taking care of their relative with disabilities. In addition, persons with disabilities are often stigmatized or thought to be possessed by evil spirits or the devil. Such stigma sometimes extends to their families, which can be a further driver of involuntary institutionalisation. An example illustrating this issue is the situation of persons with disabilities in Indonesia. In Indonesia ‘there is a widespread belief that mental health conditions are the result of possession by evil spirits or the devil, having sinned, displaying immoral behaviour or having a lack of faith’.31 Persons with perceived or actual psychosocial disabilities are often shackled, chained or locked up in a shed, cage, room or animal shelter by their families.32 This practice of shackling called pasung ‘is typically practiced by families who believe that the relative with the psychosocial disability is possessed by evil spirits, or who are worried that the person might hurt themselves or others, or might run away’.33 In addition to the shackling of persons with disabilities at home, persons with disabilities are also given to religious or traditional healing centres, where they are shackled and detained arbitrarily.34 They are taken there against their will 31

32 33 34

Human Rights Watch, ‘Living in Hell: Abuses against People with Psychosocial Disabilities in Indonesia’ 33 ; see also for example Eritrea where traditionally any disability has been viewed with fear and a belief of it being either a punishment by God or the work of the devil, see UN Committee on the Rights of the Child, ‘UN Committee on the Rights of the Child: State Party Report: Eritrea’ un Doc crc/​ c/​41/​Add.12 (23 December 2002) at 231. Human Rights Watch (n 31) iv. Human Rights Watch (n 31) iv, an estimated 57’000 people in Indonesia have been shackled at least once in their lifetime and about 14% of households with a relative with a severe mental health condition have used pasung (18% in rural areas). Human Rights Watch (n 31) iv.

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and with no independent judicial oversight or control.35 Apart from pasung, such persons are exposed to stigma, arbitrary and prolonged detention, involuntary treatment and physical and sexual violence.36 They are administered treatment which is supposed to heal them, but which in fact amounts to torture or inhuman or degrading treatment, such as forcibly administered injections, forced drinking of herbal concoctions or ‘therapeutic massages’37 which wound them.38 Worse still, electroconvulsive therapy (passing electricity through the brain in order to induce a seizure) is applied against their will in order to treat bipolar disorder and depression.39 But forced institutionalisation and treatment is not only an issue in poorer countries. This can also be found in developed asylum states, such as for instance the US. There have been shocking reports of an institution in Massachusetts, where skin shocks, shock chairs, shock ‘holsters’, shackles and social isolation were commonly applied to school age children.40 In Greece, children with disabilities are still sometimes locked up in wooden cages.41 While forced institutionalisation and forced treatment may seem an obvious instance of serious harm, the adjudication of asylum claims in this context paints a different picture.42 A particularly disturbing instance is the Canadian irb judgment in X (Re) concerning a Czech man suffering from chronic schizophrenia of the paranoid type with a history of psychiatric hospitalization in the Czech Republic. In Canada, his condition was ‘relatively well-​controlled’ with

35 36 37 38 39 40

41 42

Human Rights Watch (n 31) 5, 41–​44. Human Rights Watch (n 31) 3, 39 et seq. Human Rights Watch (n 31) 7 and 48. Human Rights Watch (n 31) 46–​50. Human Rights Watch (n 31) 50. Laurie Ahern, ‘Disabled Children at Mass. School Are Tortured, Not Treated’ Washington Post (2 October 2010)  commenting on the techniques used at the Judge Rotenberg Center (jrc) in Canton, Mass. Chloe Hadjimatheou, ‘The Disabled Children Locked up in Cages’ BBC News (14 November 2014) . Further cases in which forced institutionalization was raised but where the focus of the decision lay not on the issue of serious harm, but other aspects of the refugee definition are X (Re) (South Korean with mental health issues) (2014) TB1-​19714; TB1-​19741; TB1-​19747; TB1-​19748 (irb (Canada)), and Liaqat v Canada [2005] fc 893 (Federal Court of Canada) concerning a Pakistani suffering from schizophrenia and depression with psychotic features who feared the methods of ‘curing’ mental illness, which included being chained at the shrine, discrimination and stigma, atrocities and brutalities and punishment to drive out the evil spirits within.

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antipsychotic medication.43 He feared inter alia that upon return to the Czech Republic he would be subjected to ill-​treatment in the psychiatric hospital. In particular, he claimed that he would be subjected to restraint in a caged bed, and institutionalized against his will for demonstrating ‘signs’ of mental illness coupled with inadequate control of mental health facilities by the courts.44 While the irb took note of the fact that the UN Human Rights Committee had expressed its concern at ‘the use of caged beds and commitment to hospital at mere signs of mental illness’ and that ‘netted beds remained a legal restraint for adults and minors with mental disabilities who were deemed threats to themselves or others’,45 it found that this was neither persecutory nor did it satisfy the nexus clause. In considering whether the treatment amounted to persecution, the irb found that the use of netted or caged beds did not constitute persecution as it was ‘a legal means of restraining both adults and minors with mental disabilities who were deemed threats to themselves or others’.46 Because there was no evidence that caged beds were used for ‘long periods’, the irb reached the conclusion that the applicant did not fear any serious harm.47 Nor did the irb find that it amounted to serious harm that the applicant would be institutionalized against his will without judicial scrutiny and be treated in a degrading manner in the institution. This constitutes a conspicuous example of an approach, which is not disability-​specific and lacks awareness of the human rights of persons with disabilities.48 Even though the decision post-​dated the entry into force of the crpd by a couple of years, it displays a lack of awareness of the human right of persons with disabilities not to be subjected to forced institutionalisation (see below subchapter iii.C.5.3). In addition, it reflects the medical model by

43 44 45 46 47 48

X (Re) (Czech man with schizophrenia of the paranoid type) (2010) TA8-​01636 (irb (Canada)) at para. 2. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 22. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 25. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 27. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 28. Equally problematic is the finding in Matter of Ricardo de Santiago-​Carrillo 6 June 2000 (US Board of Immigration Appeals) holding that while persons with mental health issues in Mexico were being institutionalized, institutionalisation did not rise to the level of persecution, cited in Anker (n 29) 523; however for a case recognising that electroconvulsive therapy amounts to serious harm, see Matter of J-​M-​31 May 2007 reported in 12–​18 Bender’s Immigr. Bull. 3 (2007) (US Board of Immigration Appeals), also cited in Anker (n 29) 524.

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assuming that persons with disabilities need to be treated and cured in an ­institution. A further instance is the Australian rrt decision in the case of a Ghanaian man suffering from psychosis and depression, which he had developed after his mother’s death.49 He feared that upon return to Ghana he would end up living on the streets due to a lack of health services and family support and would then risk getting institutionalized in a prayer camp.50 There was evidence before the rrt that persons with intellectual and psychosocial disabilities in Ghana were routinely institutionalized against their will by family members or the police and denied the opportunity to refuse or appeal their confinement.51 In prayer camps, they were sometimes chained for 24 hours a day and had to bathe, defecate, urinate, eat and sleep in the same spot. However, the rrt found that the ill-​treatment would not amount to persecution because the rrt was ‘not satisfied that the government policy is deliberate or premeditated but is instead a result of lack of funds and initiative’.52 Somewhat surprisingly, having rejected the asylum claim, the rrt found that the treatment amounted to a violation of Art. 7 iccpr on the basis that the treatment amounted to ‘pain or suffering which could reasonably be regarded as cruel or inhuman in nature as it is unjustifiable and […] causes intense pain and suffering’.53 While there had not been sufficient deliberate conduct on the part of the state for the asylum claim, the rrt found in the context of the claim under Art. 7 iccpr that there was intention on the part of the non-​state actors, those running the prayer camp, who believed that persons with mental health issues were possessed by evil spirits.54 This analysis reflects a questionable application of the bifurcated approach, according to which it is sufficient if either the state or the non-​state actor acted with intent (see further on this subchapter v.C.2 on Causal Link and the Bifurcated Approach).55 Again, it appears that the rrt was influenced by a medical approach to persons with disabilities, which views forced institutionalisation as a legitimate means of treating such persons. 49 50 51 52 53 54 55

RRT Case No 1219395 (Ghanaian with mental health problems) [2013] rrta 633 (rrt (Australia)). RRT Case No. 1219395 (Ghanaian with mental health problems) (n 49) at paras. 6–​7. RRT Case No. 1219395 (Ghanaian with mental health problems) (n 49) at para. 25. RRT Case No. 1219395 (Ghanaian with mental health problems) (n 49) at para. 28. RRT Case No. 1219395 (Ghanaian with mental health problems) (n 49) at para. 38. RRT Case No. 1219395 (Ghanaian with mental health problems) (n 49) at para. 39. This may be explained by reference to the statutory provision in Australian law in s. 5J (formerly s. 91R) of the Migration Act, which defines persecution as ‘systematic and discriminatory conduct’, which led to the rrt’s finding that there was no persecution.

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A different approach was adopted in the case of Tchoukhrova v. Gonzalez, in which the US Court of Appeals for the Ninth Circuit considered the case of a Russian boy suffering from cerebral palsy.56 After his birth, the boy had been transferred to an institution for orphaned children with birth defects against his parents’ will.57 In the institution, children were kept in insalubrious conditions, where no one cleaned or took care of them, leaving them abandoned. After two months, the parents managed to take the baby into their care. The Court held that the ‘unnecessary, involuntary, and unjustified confinement might alone be sufficient to warrant a finding of persecution’, but that in light of the ‘horrifying conditions’ in the institution, it clearly rose to the level of persecution.58 Further, the Court held that the harm to the child on the one hand and the parents on the other had to be considered cumulatively, so that the anguish of the parents for their child and the harm inflicted on the child itself cumulatively amounted to serious harm to both the parents and the child.59 The forced institutionalisation of the child against the will of his or her parents therefore constituted persecution both for the child and its parents. This decision pre-​dating the conclusion of the crpd exemplifies both a disability-​and a child-​specific approach to serious harm. A similar conclusion was reached more recently by the Canadian irb. In the case of a Hungarian Roma child with disabilities the irb found that she would fear institutionalisation in Hungary in conditions which would amount to inhuman and degrading treatment, including improper physical and hygienic conditions, overcrowding, locked rooms and physical restraints, as well as lack of access to education.60 In conclusion, asylum decision-​makers still sometimes fail to consider forced institutionalisation and forced treatment to amount to persecution, because institutionalisation is still seen as an acceptable and in fact the appropriate way of dealing with persons with disabilities prevalent in most countries around the world. Such an approach to persecution, however, is reflective of the medical model of disability, according to which persons with disabilities are not considered as rights-​holders and legal subjects who only require support in order to be autonomous and included in the community, but as ‘objects’

56 57 58 59 60

Tchoukhrova et al v Gonzalez No. 03-​71129, 21 April 2005 (US Court of Appeals for the Ninth Circuit). Tchoukhrova et al v Gonzalez (n 56). Tchoukhrova et al v Gonzalez (n 56) at para. 11 (Reinhardt J). Tchoukhrova et al v Gonzalez (n 56) at paras. 5–​7 (Reinhardt J). X (Re) (Hungarian Roma minor with disability) (2018) TB2-​03319; TB2-​03337; TB2-​03338 (irb (Canada)) at paras. 21–​22.

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which need to be cared for in institutions. The disability-​specific approach to this will be considered below in subchapter iii.C.5. Threats to the Physical and Moral Integrity and Security 4 Persons with disabilities are disproportionately exposed to abuse and violence, and those with intellectual disabilities are at an even higher risk.61 In addition, women and girls with disabilities are very vulnerable to sexual violence, including rape and sexual abuse, and their chances of survival are reduced.62 Issues concerning the physical and moral integrity and security of women and girls with disabilities include multiple and intersectional discrimination, the persistence of violence against women and girls with disabilities, including sexual violence and abuse, forced sterilization, female genital mutilation, and sexual and economic exploitation.63 Women disproportionately suffer discrimination in their basic rights, including health care and nutrition, which has been described as the ‘feminization of poverty’.64 As already noted above in subchapter iii.B.2, persons with albinism are also regularly subject to physical attacks on the one hand because of the discrimination and stigma that attaches to their condition, and on the other because of the black market for their body parts. Further, the myth exists that sexual intercourse with a female person with albinism cures infertility, sexually transmitted infections, particularly hiv/​a ids, leading to the rape and forced prostitution of women and girls with albinism. Sometimes girls are even prostituted by their own families and there is a suspected serious underreporting in relation to this practice.65 In addition, persons with albinism are widely getting ostracized, also due to beliefs that albinism is a contagious disease, so that ‘crossing 61

62

63 64 65

See the full study on this, funded by the who: Karen Hughes and others, ‘Prevalence and Risk of Violence against Adults with Disabilities: A Systematic Review and Meta-​Analysis of Observational Studies’ (2012) 379 The Lancet 1621; Lisa Jones and others, ‘Prevalence and Risk of Violence against Children with Disabilities: A Systematic Review and Meta-​ Analysis of Observational Studies’ (2012) 380 The Lancet 899. Statement of the Committee on the Rights of Persons with Disabilities on disability inclusion for the World Humanitarian Summit (Adopted during the Committee’s 14th session, held, from 17 August to 4 September 2015 in Geneva) 2; see also crpd Committee, General Comment No. 3 (2016) on Women and Girls with Disabilities (25 November 2016) para 49; see also Charter on Inclusion of Persons with Disabilities in Humanitarian Action para. 2.1. crpd Committee, General Comment No. 3 (2016) on Women and Girls with Disabilities (n 62) at para. 10. Hilary Charlesworth and Christine Chinkin, ‘The Gender of Jus Cogens’ (1993) 15 Human Rights Quarterly 63, 71. UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ (n 18) 6 para 17.

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the road to avoid walking near or refusing to shake hands with persons with albinism is commonplace’.66 Asylum cases involving violence and abuse against persons with disabilities and persons with albinism often involve a pattern of occasional violence, sometimes coupled with individual incidents of serious harm, as well as general attitudes of discrimination, stigma and ostracism. This raises the question whether such a pattern of occasional violence, combined with rare incidents of serious harm, together with a general societal attitude of discrimination may amount to serious harm. A detailed consideration of this question can be found in the New Zealand ipt decision of af (Ghana) in the context of persons with albinism.67 The case concerned a Ghanaian man with albinism who had lived a life of ostracism and social marginalisation. He had been disowned by his father and abandoned by his mother, growing up with his grandmother. While he had been able to obtain an education and work as a teacher, he had repeatedly suffered minor assaults from adults and children, even rendering him unconscious on one occasion. On several occasions, persons had set their dogs on him, resulting in a bite and the need for medical treatment on one occasion. The police showed little interest in protecting him.68 At school and later during his work as a teacher, he always kept a low profile and had no social life, worshipped in private or small churches out of fear of rejection by parishioners and had no real friendships or romantic relationships.69 He claimed that he would be ‘emotionally dead’ if returned to Ghana.70 In an analysis which focused on the rights of persons with disabilities under the crpd, the ipt found that this predicament would constitute serious harm for the following reasons:71 The Tribunal finds, on these facts, that there is a real chance of the appellant experiencing serious mental harm upon return to Ghana in the form of degrading treatment, in violation of Article 7 of the iccpr and Article 15 of the crpd. The insult and indignity of being dehumanised on a sustained basis is a serious assault on the appellant’s mental integrity. It arouses in him feelings of fear and inferiority, humiliation and

66 67 68 69 70 71

UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ (n 18) 7 para 24. af (Ghana) [2015] nzipt 800796 (New Zealand ipt). af (Ghana) (n 67) at paras. 7–​11. af (Ghana) (n 67) at para. 103. af (Ghana) (n 67) at para. 104. af (Ghana) (n 67) at para. 105.

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debasement, and negates the very basis of his human dignity. The effect of this treatment on the appellant, and his response to it (withdrawing and hibernating away), constitutes serious harm. The harm was exacerbated, according to the ipt, by the fact that the applicant had also been rejected by the surviving members of his family, having no familial support or any other lasting support networks.72 In addition, the ipt took account of the life-​long duration of the feared harm and its character which it described as ‘corrosive and unremitting’.73 As a separate and additional finding of serious harm, the Tribunal held that the applicant would not be able to enjoy his human rights on an equal basis with others. It found that the ‘stigmatizing and dehumanizing treatment’ constituted degrading treatment, causing ‘attitudinal barriers to the appellant’s full and effective participation in society and the enjoyment of his human rights on an equal basis with others’.74 The tribunal took note of the fact that the right to dignity and equality underpins the right to non-​discrimination under Arts. 2(1) and 26 iccpr, Art. 2 icescr, and Art. 5 crpd.75 This discrimination impacted on his ability to realize his other human rights, such as the right to worship in community and his right to take part in cultural and family life, in accordance with Art. 18(3) iccpr and Art. 15 iccpr and Art. 30 crpd.76 This decision is particularly noteworthy. On the one hand, it relies on a clear human rights framework, including rights under the crpd, reflecting a disability-​specific human rights approach to serious harm. On the other, it is noteworthy that the applicant had not faced denials of the right to education or work and had in fact been ‘able to carve himself a career in teaching, albeit within the microcosm of the Catholic ministry in Ghana’.77 The tribunal nevertheless found that he had been discriminated against to such an extent that it amounted to ‘a serious assault on [his] mental integrity’,78 placing particular 72 73

74 75 76 77 78

af (Ghana) (n 67) at para. 106. af (Ghana) (n 67) at para. 107; the ipt similarly concluded on the existence of serious harm in co (South Africa) [2019] nzipt 801569 (New Zealand ipt) concerning a South African man with the intellectual age of an 8-​to 10-​year old who had received regular verbal and occasional physical abuse from his sister, with whom he used to live, but whose refugee claim was denied on the basis of causal link, see Chapter v. af (Ghana) (n 67) at para. 108. af (Ghana) (n 67) at para. 63, see also para. 76. af (Ghana) (n 67) at paras. 108–​110. af (Ghana) (n 67) at para. 112. af (Ghana) (n 67) at para. 105.

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weight on the sustained insults, his life of marginalization and exclusion from his family and society in general. This analysis reflects the social and human rights-​based model of disability. A further instance of a disability-​specific approach, this time in the context of the increased risk to the physical and moral integrity of women with disabilities, can be found in the Canadian case of X (Re) concerning a Lebanese single woman.79 She was suffering from a mental illness and was incapable of living independently. In Lebanon, she would not be able to rely on family support or get any other support for herself. In a human rights-​based analysis pre-​dating the conclusion of the crpd, the irb took account of the various rights of the applicant, which would be compromised in Lebanon:80 In particular, those include the following: The Universal Declaration on Human Rights at its article 3 speaks to the right of every person to life, liberty and security of person. The International Covenant on Economic, Social and Cultural Rights, particularly in its articles 11 and 12, speak to the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. As well, the United Nations General Assembly Declaration on the Rights of Mentally Retarded Persons broadly addresses rights of the claimant which stand to be compromised, particularly in its paragraphs 3, 5 and 6. Paragraph 3 refers to a right to economic security and a decent standard of living. Paragraph 5 refers to the right to a qualified guardian when this is required to protect the individual’s personal wellbeing and interests and paragraph 6 speaks to the right to protection from exploitation, abuse and degrading treatment. The irb found it relevant that the appellant was ‘a female and given her handicap, would be especially vulnerable to sexual exploitation’. The cumulative violations of several core human rights together with the vulnerabilities of mental health and gender thus led to a finding of serious harm. This decision, which predates the crpd by several years, displays an early recognition of not just the social model but a human rights-​based model of disability.81 A combination of threats to the physical integrity with assaults on the moral integrity of applicants has thus been accepted as amounting to serious harm 79 80 81

X (Re) (Lebanese single woman with mental illness) [2000] irb (Canada) A99-​01121. X (Re) (Lebanese single woman with mental illness) (n 79). For an analysis of the cumulative elements in findings of persecution see also Motz (n 10).

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in the case law. In contrast, threats to the moral integrity alone have not been found to be sufficient. Indeed, it has been held that being ridiculed or stigma and discrimination was not enough,82 nor were mere assertions of societal discrimination with no instances of how this materialized.83 This is also illustrated by the refugee claim of an Indian Sikh with one hand.84 The applicant had stated that he had been subject to two attacks, against which the police had failed to offer protection. In addition, he had been robbed, although this was motivated by greed rather than his disability.85 While he had claimed to be discriminated against as a person with a disability, this claim had not been further substantiated. On this basis, the Federal Circuit Court of Australia found that he would not fear persecution.86 In addition, the Court took into account that he would benefit from the support of his father and his ability to subsist would not be threatened.87 Similarly, case-​specific evidence of discrimination has been required in other cases. In the case of an Iraqi born in Kuwait, who had become a wheelchair user after both of his legs had been injured during the war, the applicant had a successful business and feared persecution as a wealthy businessman.88 While he claimed having been targeted and discriminated against because of his disability, the rrt did not find sufficient evidence of discrimination amounting to persecution and the finding was confirmed by the Federal Circuit Court of Australia.89 In conclusion, ‘mere’ insults or discrimination have not been recognized as sufficiently serious as to amount to serious harm. However, asylum decision-​ makers have begun to appreciate the impact not only of assaults on the 82 83 84 85 86 87 88 89

CEO15 & Ors v Minister for Immigration & Anor [2016] fcca 2795 (Federal Circuit Court of Australia); Reference 1610842 (Mauritius –​mental health) aata Migration and Refugee Division (Australia) [2019] aata 1418, 12 June 2019. ALG15 v Minister for Immigration & Anor [2016] fcca 2963 (Federal Circuit Court of Australia) concerning a Hong Kong Chinese with one leg shorter than the other, whose main claim was founded on unrelated grounds. AZACP v Minister for Immigration & Anor (2013) [2013] fcca 351 (Federal Circuit Court of Australia). AZACP v Minister for Immigration & Anor (n 84) at paras. 7, 16. AZACP v Minister for Immigration & Anor (n 84) at para. 16. AZACP v Minister for Immigration & Anor (n 84) at para. 22. MZAKT v Minister for Immigration & Anor (2015) [2015] fcca 3225 (Federal Circuit Court of Australia). Similarly, the Federal Court of Australia found in the case of a Fijian man with schizophrenia that there was no serious harm despite the stigma associated with this mental illness and the discrimination there, see EZA17 v Minister for Home Affairs [2018] fca 713 (Federal Court of Australia).

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physical integrity of persons with disabilities or albinism, but also on their moral integrity. The duration of such situations of violence and discrimination –​normally being lifelong –​together with the corrosive character of such a predicament, have in two cases been recognized as amounting to serious harm. The decisions in af (Ghana) and in X (Re) concerning the Lebanese woman are exemplary in their appreciation of this issue, demonstrating how a disability-​specific approach to serious harm takes into account not only isolated incidents of violence but also an overall pattern of discrimination and marginalization. 5 Denial of Medical Treatment and Health Care In many cases concerning persons with disabilities, the unavailability or inaccessibility of medical treatment may have life-​threatening consequences or lead to a serious deterioration in their health. However, even where there may be a documented discriminatory intent or effect (on this see further Chapter v of this book), such denial of treatment is not usually recognized as amounting to serious harm. One particular group of persons, whose asylum claims often raise the question of required medical treatment and discrimination in accessing this, are persons with hiv/​a ids. Persons with hiv or aids may also fall within the scope of the crpd as persons with disabilities, particularly where their condition has become disabling. In addition, they are often perceived as being disabled (see further on this Chapter vi of this book). It has been reported that in 35% of countries that provided data to unaids, over 50% of persons with hiv/​a ids experienced stigma and discrimination against them. hiv-​related stigma prevents access to anti-​retroviral treatment and one in eight persons with hiv today reports being denied health services.90 The discrimination against persons living with hiv/​a ids in health care settings has been described as ‘widespread’ taking many forms and acting as a barrier to accessing health and community services.91 In addition, persons with hiv/​ aids now face criminal laws which criminalize knowingly transmitting hiv to another person in many countries. However, many developing countries lack the resources to undertake the necessary dna testing in order to prove who transmitted the disease and instead base trials on circumstantial evidence,

90 91

unaids, ‘On the Fast-​Track to End AIDS by 2030:  Focus on Location and Population’ 25  . unaids, ‘Agenda for Zero Discrimination in Health Care Settings’ 2–​3  .

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increasing the risk of wrongful convictions.92 Such laws have been criticized as ‘incompatible with current medical knowledge of hiv transmission, international human rights standards, and public health goals’ hampering hiv prevention efforts, reinforcing hard-​set societal stigma surrounding hiv and aids and perpetuating views of hiv-​infected persons as criminals.93 As will be seen below, the lack of available health care or treatment and the prevalence of societal stigma and discrimination are often raised in asylum cases of persons with disabilities. In most cases, the issues centre on the question whether the lack of available treatment is due to discriminatory attitudes either on the part of the state or society in general. However, in rare cases medical treatment is being denied simply on the basis that the person has a disability. An example of the latter is the case of Tchoukhrova v. Gonzalez.94 In this case already introduced in subchapter iii.B.3 above, the US Court of Appeals for the Ninth Circuit considered the case of a Russian boy suffering from cerebral palsy. The boy had been denied access to any medical treatment in Russia on the basis that he was disabled. His parents had travelled with him to the US on several occasions in order to obtain treatment, which enabled him to walk for the first time. Taken cumulatively with the threat of forced institutionalisation, occasional violence which was serious on two occasions (he had to be hospitalized as a result) and the denial of education, the boy’s predicament was found to constitute persecution. In relation to the denial of health care, the Court held:95 It is true generally that a country’s failure to provide its citizens with a particular level of medical care or education due to economic constraints is not persecution. […] However, claims of financial difficulties cannot be used to justify the deprivation of services essential to human survival and development, if the deprivation is based on the recipient’s membership in a statutorily protected group. The government’s refusal to provide medical care and an elementary education to “disabled children” solely because they are members of the particular social group the term describes cannot be excused on the basis of the need to limit expenditures. 92 93 94 95

Edwin J Bernhard, ‘Africa’s HIV Transmission Laws Based on Questionable Science’ . Amy Jong Chen, ‘HIV-​Specific Criminal Law: A Global Review’ (2016) 9 Intersect 1, 1. Tchoukhrova et al v Gonzalez (n 56). Tchoukhrova et al v Gonzalez (n 56) at para. 11.

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If medical or education resources are to be limited, the allocation of funds must be based on other, less invidious, grounds. The denial of health care in this case was explicitly based on discriminatory attitudes towards persons with disabilities. The boy was refused access to health care on the basis of his disability, not because the specific treatment he required was too expensive. In this sense, it was a clear-​cut case of discrimination against the boy because of his disability. However, in many cases the denial or lack of access to medical treatment is at least partly due to financial constraints and any discriminatory elements are more covert. In the context of hiv, a clear and early example of discrimination in the delivery of health care and societal discrimination is the Canadian case of T.N.L. (Re).96 The case concerned a Polish man who had hiv and claimed that due to the discrimination and stigma of persons with hiv in Poland, he would be denied medical care and adequate housing upon return. The irb held that this constituted persecution rather than mere discrimination, as the denials of socio-​economic rights were coupled with violent threats and attacks against persons with hiv. Thus, the case involved the denial of ‘core human rights’, such as the right to physical integrity, in addition to the denial of the right to health care and adequate housing. Moreover, the Polish government was not taking sufficient steps to protect persons with hiv from violence.97 However, in particular in the context of hiv/​a ids, discrimination with the effect of barring access to medical treatment is prevalent.98 Yet, it has proven particularly difficult for applicants with hiv/​a ids to demonstrate a discriminatory element in the denial of health care or treatment. The case of X (Re) concerning a woman with hiv from Guyana illustrates this.99 The applicant had argued that she would face such stigma and discrimination in Guyana that

96

97 98

99

tnl (Re) T95-​07647, [1997] crdd No. 251 (irb (Canada)); see also the similar US example ‘Ostracism, Lack of Medical Care Support hiv-​Positive Alien’s Asylum Quest, ij Rules’ (15 January 2001) 78 Interpreter Releases 233 concerning a decision granting asylum to applicant who faced ‘serious ostracism in her native country due to her hiv-​positive status and the lack of appropriate medical care for her condition’. T.N.L. (Re) (n 96) at para. 11. Further examples of this include Paredes v Attorney General (2007) 219 Fed. Appx. 879 (US Court of Appeals for the Eleventh Circuit) 888 concerning the prioritization of hiv treatment to women and children meant that gay men ‘were usually left without treatment’; criticised in Hathaway and Foster (n 13) 236 fn 334; see also Rodriguez Diaz v Canada (Minister of Citizenship and Immigration) [2009] 3 fcr 395, 2008 fc 1243 (Federal Court of Canada). X (Re) (Guyanese applicant with hiv) (2015) TB4-​12785 (irb (Canada)).

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she would be deterred from seeking treatment.100 In addition, concerns had been raised that there was dwindling funding to fight the hiv/​a ids epidemic there.101 However, having considered the possibility of cumulative discrimination as serious harm, the irb reached the conclusion that there was insufficient evidence to support the applicant’s case that she would be faced with such discrimination upon return.102 The irb’s engagement with the question of discriminatory denial of medical treatment in this case appears rather cursory and is reflective of a medical model to disability, focusing on the availability of treatment, rather than societal barriers in the form of discrimination and their effect on the applicant’s ability to seek treatment. Similarly, in the case of Deri v. Canada the Federal Court considered whether the stigma attached to being hiv positive could amount to persecution in itself.103 The case concerned a Ghanaian man who was hiv positive. He feared stigma because he would be perceived as a gay man as a result of being an hiv positive person. The Federal Court did not exclude the possibility that such fear could found a refugee claim, but only found that there had been insufficient evidence that the applicant would be perceived as gay or ‘sexually immoral’ and that even if this were the case, there had been insufficient ‘credible or trustworthy evidence that the stigma he might face would rise to the level of persecution and would result in a denial of a core human right’.104 A more generous evidentiary approach was adopted in the following case also concerning an applicant from Ghana but not involving hiv. In the case of Ampong v. Canada the cumulative effects of lack of medical treatment and discrimination were appreciated.105 The case concerned a Ghanaian man who as a result of an assault in Canada was paralyzed in his legs, had only limited use of his arms, was not able to stand or walk and was incontinent. According to his doctor, the medical treatment he required belonged to a subspecialized field that would not be available in a developing country. Without the treatment, it was said that he would develop medical complications likely leading 1 00 101 102 103 104 105

X (Re) (Guyanese applicant with hiv) (n 99) at paras. 15–​16. X (Re) (Guyanese applicant with hiv) (n 99) at para. 17. X (Re) (Guyanese applicant with hiv) (n 99) at para. 23. Deri v Canada (Citizenship and Immigration) 2015 fc 1042 (Federal Court of Canada). Deri v. Canada (Citizenship and Immigration) (n 103) at para. 85. Ampong v Canada (Citizenship and Immigration) 2010 fc 35 (Federal Court of Canada); a lack of medical treatment combined with ostracism was also recognised as amounting to serious harm in the case of persons who were hiv positive in the following two cases:  Matter of _​_​(ij 20 December 2000), reported in 78 Interpreter Releases 233, 15 January 2001 (US); Matter of _​_​US A71-​498–​940, (ij 31 October 1995), reported in 73 Interpreter Releases 901, 8 July 1996, both cited in Anker (n 29) 527.

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to serious illness and possible death. The lower instance had focused only on the need for medical treatment. However, the Federal Court held that there was evidence that ‘people with disability in Ghana, and in most parts of Africa face multiple discrimination, from the home, the community and society at large and in terms of allocation of resources and opportunities’.106 Health care delivered in a discriminatory manner was held to be capable of constituting persecution.107 In addition, there was evidence of cumulative discrimination against persons with disabilities in Ghana.108 On this basis, the Federal Court remitted the matter to the irb for reconsideration. This decision reflects a social model of disability recognizing that societal barriers and discrimination may be what will be disabling rather than the mere lack of medical treatment. In addition to the discriminatory denial of health care, an issue that regularly arises in refugee claims is the question of the availability of medical care in the country of origin. A disability-​specific analysis of this question was undertaken by the Australian aata in the case of a wheelchair-​bound physically disabled Zimbabwean.109 The tribunal acknowledged the general health care in the country had deteriorated to such a catastrophic extent that the applicant would face serious harm on return.110 The tribunal considered the massive drug shortages, strikes by doctors and nurses, inadequate funding and ill-​equipped hospitals, with senior politicians leaving the country in order to receive medical treatment abroad.111 It further took into account that government institutions were often uninformed about disability and provided persons with disabilities poor services, despite the crpd having been ratified by Zimbabwe.112 Given that the applicant required regular ongoing medical support to stop his physical limitations from deteriorating and that Zimbabwe did not offer such rehabilitation services, the lack of family support and the applicant’s inability to earn a living, the tribunal found him to face serious harm upon return.113 A less disability-​specific analysis was undertaken in the case of X (Re) concerning a Turkish Alevi man suffering from post-​traumatic stress disorder and requiring ongoing treatment.114 The applicant had submitted a psychiatrist’s 1 06 107 108 109 1 10 111 112 113 114

Ampong v Canada (Citizenship and Immigration) (n 105) at para. 41. Ampong v Canada (Citizenship and Immigration) (n 105) at para. 46. Ampong v Canada (Citizenship and Immigration) (n 105) at paras. 45, 49. Reference 1728413 (Zimbabwean with disability) aata Migration and Refugee Division (Australia) [2018] aata 4665, 18 October 2018 at para. 82 et seq. Reference 1728413 (Zimbabwean with disability) (n 109). Reference 1728413 (Zimbabwean with disability) (n 109) at paras. 86–​90. Reference 1728413 (Zimbabwean with disability) (n 109) at paras. 92–​93. Reference 1728413 (Zimbabwean with disability) (n 109) at paras. 95–​103. X (Re) (Turkish Kurdish Alevi with ptsd) (2007) VA6-​02734 (irb (Canada)).

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report stating that he required treatment by a ‘mental health professional’.115 The irb held that this ‘psychological dysfunction’ could not found his asylum claim as there was sufficient medical treatment available in Turkey. The irb considered that sufficient treatment existed, because there were 1.3 psychiatric beds per 10’000 population and ‘one neurosurgeon, one neurologist, and psychologist and one social worker per 100’000 population’.116 In addition, it found that antipsychotic and antidepressant medication were available in Turkey. With a chance of 99’999 in 100’000 (as it was found there was only one psychologist, i.e. mental health professional per 100’000 population), there was clearly a real and objective risk that the applicant would not receive medical treatment by a mental health professional. However, the irb simply failed to consider the effects of a lack of treatment and whether this amounted to serious harm.117 In addition to the availability of medical treatment, cases of persons with disabilities often raise the issue of the subjective accessibility of such treatment. A pertinent factor is the existence of a support network in the country of origin. For instance, the lack of family support together with discriminatory societal attitudes has been found to lead to inability to access medical treatment and thus serious harm in the Canadian case of X (Re) concerning an Ethiopian woman with serious mental health issues, suffering from a bi-​ polar disorder with psychotic features.118 The applicant feared a lack of family or community support in Ethiopia and stigmatisation due to her illness. The community had previously pressured her to stop taking her medication. The irb recognised the considerable societal stigma which prevented mentally ill people from seeking professional help. It found that:119 [r]‌eturning to a culture where her mental illness is stigmatized, where it is regarded as a taboo, with people at best ostracizing her and at worst exerting negative pulls on her to interrupt medication and avoid seeking help, with the result that she could find herself in the absence of 1 15 X (Re) (Turkish Kurdish Alevi with ptsd) (n 114) at para. 47. 116 X (Re) (Turkish Kurdish Alevi with ptsd) (n 114) at para. 48. 117 A similarly prohibitive analysis was undertaken by the irb in the case of a mentally ill mother of a boy suffering from Elbs Palsy, in which 130 to 200 psychiatrists and 8 neuropsychiatry hospitals for a population of about 200 million in Nigeria was considered sufficient availability of mental health care for the applicant X (Re) (Nigerian family with son with Elbs Palsy) (2019) TB9-​16802; TB9-​16803; TB9-​16804; TB9-​16805 (irb (Canada)) at paras. 36–​37. 118 X (Re) (Ethiopian woman with mental health issues) [2007] irb (Canada) TA5-​11242. 119 X (Re) (Ethiopian woman with mental health issues) (n 118).

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meaningful family support a street vagrant, presents dangerous obstacles to the claimant. As a mentally ill person she would have been excluded from community life. The irb found that the cumulative effects of such discrimination and lack of health care amounted to serious harm. The irb’s analysis is reflective of a social model to disability, taking account not only of the available medical treatment, but also the lack of support and the lack of inclusion in the community and general societal discrimination together with the State’s failure to implement positive obligations. The subjective accessibility of medical treatment was also decisive in the Australian rrt decision concerning a Lebanese woman suffering from physical and mental disabilities.120 The case concerned a Lebanese woman who required ‘significant medical attention as well as care at home’.121 She had family support in Lebanon and had been able to obtain medical treatment in the past. While the level of medical care in Lebanon was not the same as that in Australia, she had previously been able to access the medical treatment she required in Lebanon, which led the tribunal to conclude that she did not fear persecution in Lebanon.122 In cases involving the need for medical treatment, the duty of progressive realization may limit the scope for findings of serious harm where countries of origin have limited financial resources. Where the lack of adequate medical treatment is only due to a lack of financial resources, and not a lack of initiative or will on the part of the state to advance the right to health of everyone, there is no discriminatory or persecutory element (see further on this below, subchapter v.E). In a couple of cases, the courts have undertaken a more detailed analysis of the country of origin’s compliance with its duty of progressive realization. In Mkhonta v. Canada, the Federal Court of Canada examined the case of a man from Swaziland who was suffering from hiv.123 The Court held that there was substantial evidence, particularly based on an ngo article from avert.org that

120 RRT Case No 1406930 (Lebanese woman with physical and intellectual disabilities) [2014] rrta 760 (rrt (Australia)). 121 RRT Case No. 1406930 (Lebanese woman with physical and intellectual disabilities) (n 120) at para. 24. 122 RRT Case No. 1406930 (Lebanese woman with physical and intellectual disabilities) (n 120) at para. 32. 123 Mkhonta v Canada (Public Safety and Emergency Preparedness) 2015 fc 991 (Federal Court of Canada).

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the government had ‘good political presence against hiv and aids’.124 While a relatively recent article suggested that there had been insufficient budgetary allocations to the issue, an even more recent article from unaids.org showed that patient retention rates on antiretroviral therapy had been increased, which indicated the improved quality of services. Acknowledging that there was no doubt that better care would be available to the applicant in Canada, the Court nonetheless held that there was no risk of serious harm, effectively finding that Swaziland had complied with its duty of progressive realization of the right to health care.125 A similar finding was reached by the Federal Circuit Court of Australia in szufq and Anor v. mia concerning a Fijian man with hiv.126 The Court held that Fiji was complying with its duty of progressive realization regarding antiretroviral treatment for persons with hiv. The lower tribunal had found that Fiji had enacted a decree preventing discrimination based on hiv status, which had been ‘developed over a period of five years with extensive consultation among Fiji government agencies and technical support from UN bodies including undp and unaids’.127 The applicants had argued that they would nonetheless face stigma and discrimination in the provision of health care, would not receive any family support and find no employment due to discrimination.128 The Federal Circuit Court confirmed the tribunal’s findings stating in relation to the duty of progressive realization that the decree had been recent and the tribunal had found that therefore there was little evidence on its operation in practice, but that ‘in the Tribunal’s view, the decree made a powerful statement of the government’s intention [which] needed to be recognized as a force against discrimination’.129 The decisions in Mkhonta and szufq illustrate the level of engagement with policy progress and budgetary questions that is required in order to evaluate whether a country of origin meets its obligations under the duty of progressive realization in relation to socio-​economic rights. In addition, in many cases it is necessary to assess whether the state is taking steps to eliminate discrimination against persons with disabilities. For the prohibition of discrimination –​also

1 24 Mkhonta v. Canada (Public Safety and Emergency Preparedness) (n 123) at para. 29. 125 Mkhonta v. Canada (Public Safety and Emergency Preparedness) (n 123) at para. 29. 126 SZUFQ & Anor v Minister for Immigration & Anor (2015) [2015] fcca 3406 (Federal Circuit Court of Australia). 127 SZUFQ & Anor v Minister for Immigration & Anor (n 126)  at para. 32 summarising the lower tribunal’s finding. 128 SZUFQ & Anor v Minister for Immigration & Anor (n 126) at paras. 37, 47–​48. 129 SZUFQ & Anor v Minister for Immigration & Anor (n 126) at para. 52.

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when it arises in the context of socio-​economic rights  –​is never subject to progressive realization. This was expressly done by the Federal Circuit Court of Australia in szufq, which assessed the legislative and policy measures taken to address discrimination against persons with hiv. Both Mkhonta and szufq illustrate a social and human rights-​based model of disability, focusing on the duty of progressive realization of the right to health, with szufq also addressing general discriminatory attitudes in society. Finally, for serious harm to arise, there has to be evidence that the lack of medical treatment will have serious consequences for the applicant concerned. It is insufficient to simply claim that a particular action or medical treatment would have been necessary, if it is not established that someone with a different background would have received the treatment and that the omission of treatment had grave consequences for the person concerned.130 This was lacking, for instance, in the case of X (Re) concerning a Roma family from Slovakia with a child with disabilities (the type of disability was anonymized in the decision).131 All of the children had been placed in segregated schools or classes and had not received a proper education in Slovakia. Racial violence and societal discrimination were common. While the child was suffering from an irreversible disability, the evidence regarding the need for medical treatment and the effects of a lack of medical treatment was equivocal. The irb held that there had been no clear evidence of the effects of a lack of medical treatment and dismissed the case.132 However, the assessment regarding segregated schooling lacks the necessary awareness of disability rights, as will be further discussed in subchapter iii.B.7 below. The decisions analysed in this subchapter illustrate how a human rights-​ based disability-​specific approach to cases involving the denial of medical treatment or health care would look. On the one hand, they illustrate that the focus must go beyond the right to health, and include an assessment of issues of discrimination and stigma which frequently arise in such cases. Indeed, focusing on the accessibility or availability of medical treatment alone and in isolation from other considerations, such as discrimination and lack of support, is reflective of the medical model of disability and not compatible with a human rights-​based social model approach. On the other, the cases illustrate that the duty of progressive realization requires a detailed engagement with a 130 X (Re) (Hungarian Roma who had suffered a stroke) (2015) VB3-​03416/​03417/​03418 (irb (Canada)) at paras. 18–​20. 131 X (Re) (Slovakian Roma child with disabilities) (2014) TB4-​09250; TB4-​09280; TB4-​09286; TB4-​09287 (irb (Canada)). 132 X (Re) (Slovakian Roma child with disabilities) (n 131) at paras. 56–​58.

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country of origin’s health care policies in order to determine whether the right to health is being progressively realized. Denial of Work, an Adequate Standard of Living and Accessibility 6 The right to work is one of the areas where discrimination against persons with disabilities has been described as ‘prominent and persistent’.133 Unemployment rates for persons with disabilities are regularly several times higher than for non-​disabled persons.134 Persons with disabilities still have very limited access to the labour market as a result of discrimination and stereotyping. Many workplaces are not accessible to them, either physically or through discriminatory attitudes.135 As a result, persons with disabilities are still far more likely to depend on begging, charity and welfare, rather than upon meaningful employment in all regions of the world.136 Even where governments take measures to provide employment opportunities for persons with disabilities, these are often provided in separate settings, rather than inclusive work environments.137 Far too rarely do employers provide for reasonable accommodation enabling persons with disabilities to contribute in the workplace.138 They regularly believe that it would be too expensive to hire someone with a disability or that they would not be able to accomplish their tasks, an attitude ‘rooted in fear and stereotyping’.139 In developing countries, if persons with disabilities are employed at all, they mostly work in the informal sector, where labour protection

133 cescr, ‘General Comment No. 5: Persons with Disabilities’ un Doc E/​1995/​22 (9 December 1994) at para. 20. 134 cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 133) at para. 20 speaks of two to three times higher unemployment rates; Maria Ventegodt Liisberg, ‘Article 27 [Work and Employment]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 499 notes that less than half of persons with disabilities of working age are economically active. 135 ohchr, ‘Breaking Barriers to Equal Access to Work for Persons with Disabilities’ (16 April 2013)  . 136 Secretariat for the Convention on the Rights of Persons with Disabilities-​d esa, ohchr and Inter-​Parliamentary Union, ‘From Exclusion to Equality:  Realizing the Rights of Persons with Disabilities:  Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and Its Optional Protocol’ 85 . 137 ohchr (n 135). 138 ohchr (n 135). 139 Secretariat for the Convention on the Rights of Persons with Disabilities-​DESA, ohchr and Inter-​Parliamentary Union (n 136) 85.

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is limited and work unstable.140 When persons with disabilities set up for self-​ employment, they are faced with discriminatory attitudes and struggle to run a business.141 The cumulative effects of societal discrimination and denials of the right to work for persons with disabilities was considered in the case of X (Re) concerning a man from Burkina Faso suffering from polio.142 In this case, the Canadian irb considered the impact on the applicant’s right to work and the economic hardship he would suffer. His parents had taken him to Mali, because they had feared that he would get killed in Burkina Faso, where the disease of polio was considered undignified and a calamity. The irb held that the applicant’s right to work was greatly undermined by ‘repeated and persistent injury and annoyance suffered by’ persons with disabilities in Burkina Faso. The prejudice against them was found to be ‘repetitive, persistent and systematic, ultimately undermining their fundamental rights’.143 His ability to support himself would thus be greatly undermined, potentially jeopardizing his survival in a country ‘where medical care is not free of charge and where there is no system of state protection for those persons and they rely solely on the aid of their family or charities to survive’. On the basis that the applicant had shown that persons with disabilities in Burkina Faso ‘suffer serious intellectual and economic hardship constituting persecution’, the irb found that serious harm was ­established.144 This is a good example of the social and human-​rights based model being applied to the issue of a denial of the right to work. The irb found that the applicant having to rely on charity and the support of family members and being denied his right to support himself together with societal attitudes of discrimination constituted a violation of his fundamental rights amounting to persecution. A further example illustrating the impact of the denial of the right to work without any threat to the subsistence of the applicant is the New Zealand ipt decision of ac (Egypt), in which the Tribunal set out its approach to refugee status determination of persons with disabilities. The case concerned an 140 Secretariat for the Convention on the Rights of Persons with Disabilities-​d esa, ohchr and Inter-​Parliamentary Union (n 136) 85–​86. 141 See e.g. Morgan (n 16)  describing how a wheel-​chair dependent woman with polio in Ghana was self-​employed selling oranges, but no one would ever buy from her; or the history of failed self-​employment of the applicant in ac (Egypt) [2011] nzipt 800015 (New Zealand ipt). 142 X (Re) (Burkinabe with disability) (2002) MA1-​08719 (irb (Canada)). 143 X (Re) (Burkinabe with disability) (n 142). 144 X (Re) (Burkinabe with disability) (n 142).

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Egyptian person with albinism who suffered from a visual impairment and was considered by the Egyptian government to be disabled as a result of this and the absence of melanin in his skin.145 He had lived a life of social marginalization in Egypt, with discrimination and harassment at school and incidents of physical violence on isolated occasions. After having unsuccessfully tried to obtain work in both the public and the private sectors, he set up as a self-​ employed person with his own shop, but no one would buy from him because of his albinism. He also tried to rely on Egyptian legislation on affirmative action seeking to promote disabled persons’ access to the labour market, all to no avail. During his final year in Egypt he stayed mostly at home, only venturing outside in the evenings. The New Zealand Tribunal stressed that the applicant had been denied the very core of the right to work, as he had exhaustively attempted to find work in the private and public sectors and to make a living as a self-​employed person.146 In addition to this denial of the right to work, the Tribunal relied on the cumulative effects of the occasional violence, the substantial discrimination in his education and employment, and his life in a highly isolated environment intermingling only with his immediate family.147 The Tribunal’s reasoning is interesting in its analysis of the cumulative effect of Egypt’s failure to provide socio-​economic rights.148 Although Egypt had enacted affirmative action legislation with a quota for the employment of disabled persons in the public sector, it had failed to implement the legislation, thus falling foul of its positive obligations under the crpd.149 In addition, the Tribunal recognised the marginalizing effect of the denial of the applicant’s right to work, even though this did not threaten his subsistence as a result of the support from his family. A similar example of a case concerning the cumulative denial of various rights including the right to work is the case of X (Re) concerning a Nigerian boy with physical and mental disabilities.150 The child suffered from global developmental delays, with an unstable walk, often falling and being unsteady when running, and was therefore ‘developmentally disabled’.151 The Canadian irb held that it was established on the evidence that the boy with disabilities 145 Although it is not obvious that albinism necessarily constitutes a disability, it is arguable that it amounts to ‘perceived’ or ‘imputed’ disability given the fact that persons with albinism in Egypt were treated by society as if they suffered from a long-​lasting impairment. 146 ac (Egypt) (n 141) at para. 83. 147 ac (Egypt) (n 141) at paras. 80–​88. 148 ac (Egypt) (n 141) at paras 67–​69, 88–​89, 92, 93, 97. 149 ac (Egypt) (n 141) at paras. 89–​96. 150 X (Re) (Nigerian child with physical and mental disabilities) (n 23). 151 X (Re) (Nigerian child with physical and mental disabilities) (n 23) at para. 41.

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would later in his life face persecution in the form of lack of employment opportunities, non-​accessibility of banks, schools, libraries, places of worship and restrooms as well as social exclusion and unequal socio-​economic rights for persons with disabilities amounting to persecution within the meaning of the Refugee Convention.152 An example raising the cumulative issues of an ethnic minority single mother suffering from paranoia and deteriorating mental health being likely discriminated against by the state and denied work was examined in the Canadian case of X (Re).153 The case concerned a divorced ethnic Russian mother with mental health issues from Kyrgyzstan who had two children.154 The mother had experienced a pattern of employment instability in her country of origin. In Canada, the children had been taken into foster care, because of the mother’s unstable mental health. The irb found that the appellants were particularly vulnerable, as a family led by a single divorced parent who suffered from serious mental health problems. As a result of these problems, the mother would not be able to access state protection. As the principal caregiver of her children she would not be able to work in the foreseeable future and there would not be appropriate care for the children. The irb noted the high level of unemployment among women in Kyrgyzstan, a country with severe social and economic problems, which particularly affected women and children. There was an absence of programs targeted to more vulnerable, out of work women further compounding the problem of the increase in trafficking and prostitution. On the basis of their Russian ethnicity and as a single mother suffering from serious mental health problems with two minor children, the irb found that they would face persecution on return.155 Cases involving the right to work also engage the duty of progressive realization. The extent to which the duty of progressive realization is complied with also affects the question whether there is a discriminatory or persecutory denial of the right to work. This was for instance analysed in the case of X (Re) concerning a Vietnamese man who had seriously injured his left shoulder

1 52 X (Re) (Nigerian child with physical and mental disabilities) (n 23) at para. 43. 153 X v Canada (ethnic Russian single mother from Kyrgyzstan with mental health problems [2001] irb (Canada) T98-​03164. 154 X v Canada (ethnic Russian single mother from Kyrgyzstan with mental health problems (n 153). 155 A somewhat different example of cumulative grounds for discrimination is the Australian case of a Chinese disabled political opponent, where the combination of disability and political opinion had led to persecutory treatment regarding social assistance, work as well as instances of mistreatment: V95/​03148 [1996] rrta 597 (rrt (Australia)).

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leading to limited use of his left arm.156 He feared that he would not be able to find employment upon return due to his disability. The rrt considered that Vietnamese law provided for the protection of people with physical disabilities, prohibited discrimination against them, and required equality in access to employment, accommodation and health care. The law encouraged the employment of persons with disabilities and provided for preferential treatment to companies recruiting persons with disabilities.157 There were minimum quotas for the employment of persons with disabilities and fines for employers who failed to meet them. However, enforcement of these provisions was somewhat lacking but the government had supported organisations helping persons with disabilities and operated some specific programs for them.158 The Tribunal accepted that despite these laws and initiatives there was still some discrimination against persons with disabilities, also by employers. Yet, it was not satisfied that the applicant would be completely unable to find work, rather than encountering some difficulty.159 The tribunal found that the applicant would also be able to benefit from the support of his family members in Vietnam who at the very least could initially provide him with accommodation and his children living in Australia could send him money.160 As a result of this, the applicant was found to be able to subsist on return to Vietnam and not to face serious harm. In its analysis of the measures taken by Vietnam, the rrt effectively considered the factors pertinent to the duty of progressive realization. However, the Tribunal also took into account criteria, such as the availability of family support, which are not pertinent under a human rights-​based approach. The analysis undertaken in this case thus exemplifies a mix of a human-​rights based social model to disability, examining in detail the extent of progressive realization of the right to work without discrimination in Vietnam, and a charity-​based medical model, relying on family support, rather than the general principles of dignity and autonomy and the right to independent living (Arts. 3 and 19 crpd). The duty of progressive realization was also a material factor in the case of szhcu v Minister for Immigration & Anor, in which the Australian Federal

156 RRT Case No 1404941 (Vietnamese with limited use of left arm) (2014) [2014] rrta 865 (rrt (Australia)). 157 RRT Case No. 1404941 (Vietnamese with limited use of left arm) (n 156) at para. 18. 158 RRT Case No. 1404941 (Vietnamese with limited use of left arm) (n 156) at para. 18. 159 RRT Case No. 1404941 (Vietnamese with limited use of left arm) (n 156) at para. 24. 160 RRT Case No. 1404941 (Vietnamese with limited use of left arm) (n 156) at paras. 26, 29.

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Magistrates Court considered the case of a Mongolian deaf mute man.161 The applicant claimed that he had been discriminated against for reasons of his disability to such an extent that his capacity to subsist had been threatened. However, the Federal Magistrates Court pointed out that the applicant had received up to tertiary level education and had been in receipt of extensive government support.162 While there was independent evidence supporting the applicant’s claim that it was very difficult for persons with disabilities to find work in Mongolia and the applicant had faced difficulty finding a position as a soccer coach, which was his preferred position, he and his wife were in receipt of a disability allowance. He had been ‘the recipient of significant government and community support in his study and life as a sportsman’.163 The tribunal thus found that he had not been denied access to basic services or denied the capacity to earn a livelihood of any kind, a finding which the Federal Magistrates Court confirmed.164 The case thus also considered issues relating to the right to work without discrimination and the right to an adequate standard of living, reflecting a human rights-​based approach. Refugee claims have also raised the issue of the right to accessibility of persons with disabilities. Two decisions are noteworthy in this respect. In the New Zealand decision of Refugee Appeal No. 76015 the rsaa considered the case of a Bolivian man with an amputated leg, who required crutches to walk because of a leg injury.165 He gave up his job at a tertiary education institution due to the incompatibility with ongoing surgery and then tried to find various other types of employment, but found it impossible to move around, as the buses had narrow and steep entrances and the streets were full of potholes. As a result of the pain in his leg, he became addicted to pain killers and went to a rehabilitation centre, were he was sexually abused by fellow patients. He reported this to the police, who failed to investigate the crime. The rsaa held that regarding the applicant’s right to work:166 The limit of his evidence is that he now finds it difficult to continue some forms of his previous work as a sound engineer because of his inability to carry heavy sound equipment or climb ladders. The ability of the

161 SZHCU v Minister for Immigration & Anor [2006] fmca 1146 (Federal Magistrates Court of Australia). 162 SZHCU v Minister for Immigration & Anor (n 161) at para. 16. 163 SZHCU v Minister for Immigration & Anor (n 161) at para. 16. 164 SZHCU v Minister for Immigration & Anor (n 161) at paras. 22–​24. 165 Refugee Appeal No 76015 [2007] nzrsaa 96 (New Zealand rsaa). 166 Refugee Appeal No 76015 (n 165) at para. 46.

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appellant to find work in his former professional field since his injury has also been seriously limited by his need for ongoing surgery and recuperation periods (precipitating, for example, his voluntary resignation from his university teaching job in 2002), and his painkiller addiction. He has made only very limited attempts to look for work which does not require him to lift sound equipment or climb ladders or outside his field of immediate expertise. These circumstances establish neither a situation of serious harm, nor do they establish a failure of state protection. The rsaa further found that there was no risk of him being exposed to sexual assault again and that the denial of better medical services did not constitute a violation of Art. 12 icescr, as Bolivia provided the highest attainable level of health care considering its financial resources.167 There was also found to be no discrimination in relation to other socio-​economic rights.168 While this part of the analysis may be sound, it is of concern that the rsaa ignored the relevance of the human rights to accessibility and reasonable accommodation under the crpd, which was important for the applicant’s access to employment. In this regard the rsaa simply held that accessibility did not concern any fundamental rights,169 despite expressly referring to the crpd,170 which includes a right to accessibility in its Art. 9 and a right to reasonable accommodation in the context of work in Arts. 2 and 27. In addition, the analysis in this case is worrying, because the rsaa failed to examine the human rights violations cumulatively, instead considering each violation separately. This contrasts with other examples, such as ac (Egypt) or Tchoukhrova, where occasional violence was taken into account in the cumulative assessment of serious harm on return. This is not to say that the case would have necessarily been decided differently, but the rsaa failed to conduct a proper examination of the lack of accessibility and of the cumulative harms that the applicant faced. The issue of accessibility and work also arose in the Canadian case of X (Re) concerning a blind Chilean woman who had a guide dog.171 In this case, a cumulative analysis of the different harms and discrimination was undertaken. As a blind woman with a guide dog, the applicant was often not allowed onto

1 67 168 169 170

Refugee Appeal No 76015 (n 165) at paras. 36, 45. Refugee Appeal No 76015 (n 165) at para. 48. Refugee Appeal No 76015 (n 165) at para. 47. Refugee Appeal No 76015 (n 165) at para. 49 simply stating that this did ‘not lend any further support’ to the applicant’s claim. 171 X (Re) (Chilean woman with visual impairment and guide dog) (2001) VA0-​03441 (irb (Canada)).

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public transport, was refused entry into restaurants and malls with her dog and was eventually dismissed from her work as a telephone operator for a Christian radio station after more restrictive rules regarding dogs had been introduced. She had complained to the media and the national consumer service. In her asylum claim she stated that she would be unable to find employment in Chile due to her guide dog. The irb held that she had shown tenacity in overcoming many obstacles in the past and had managed to obtain four positions of employment. There had been no state involvement in her dismissal. Regarding the discriminatory laws against guide dogs in Chile, the irb held that such laws ‘are not, by themselves, sufficient to warrant a grant of refugee status; the claimant must adduce credible evidence of facts that would support a well-​ founded fear of persecution’.172 She had attended university and obtained a degree, even if not in the subject matter of her choice. The irb did not find that ‘the number of cumulative instances of discrimination have amounted to persecution’.173 While the applicant in this case may have failed to adduce sufficient evidence of relevant discriminatory attitudes –​something that occurs frequently in such cases174  –​ the irb’s analysis concerning the law on guide dogs fails to take account of disability-​specific rights. It is highly questionable whether the law prohibiting guide dogs did not amount to discrimination against persons with visual impairments and a denial of the right to accessibility under the crpd. As far as the right to work and to an adequate standard of living are concerned, most of the decisions set out in this subchapter display a human rights-​based approach to serious harm.They illustrate that this results in a more detailed consideration of the harms feared by persons with disabilities. In contrast, when it comes to the right to accessibility the asylum decisions discussed here continue to neglect this human right enshrined in Art. 9 crpd, which may be due to a lack of awareness in this respect on the part of decision-​ makers. 1 72 X (Re) (Chilean woman with visual impairment and guide dog) (n 171). 173 X (Re) (Chilean woman with visual impairment and guide dog) (n 171). 174 See e.g. De Baez v Canada 2003 fct 785 (Federal Court of Canada) at para. 8 concerning an Argentinian man suffering from cerebelous ataxia, which produced involuntary body movements, and who said that he had been exposed to ridicule but who, according to the Court had adduced ‘very little evidence’ of any discrimination; and X (Re) (Guyanese applicant with hiv) (n 99) at paras. 24–​25 concerning a Guyanese woman who was hiv positive and feared stigma and discrimination in the context of housing or employment but who had been able to work in a hospital as a hospital clerk until her retirement and had not provided sufficient evidence of any discrimination.

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7 Denial of Inclusive Education Children with disabilities have a right to inclusive education, a right to be educated together with their non-​disabled peers. However, estimates indicate that the school enrolment rates of children with disabilities in developing countries are as low as 1% to 3%, so that about 98% of children with disabilities do not go to school at all.175 Yet, inclusive education of children with disabilities together with non-​disabled children is crucial, as it ‘helps to break down barriers and challenge stereotypes’ and ‘to create a society that readily accepts and embraces disability, instead of fearing it’.176 Furthermore, children with disabilities who are included in regular schools are more likely to finish school, go on to post-​secondary education and training, find employment and earn good incomes and become active members of their communities.177 Not only is the quality of education at segregated schools often lower, children with disabilities who are segregated into separate schools also regularly have reduced ‘chances of acquiring essential life skills through contact with others’ with their segregated education being the ‘first step in a life of segregation’.178 The lack of education has been recognised as a valid basis for asylum claims of children with disabilities in several cases. Certain cases concern the complete denial of any education to children with disabilities, others concern the denial of appropriate education. A complete denial of education on the basis of disabilities occurred in the case of Tchoukhrova v. Gonzales, which has already been discussed in subchapter iii.B.3 and subchapter iii.B.6 above. The boy had also been denied access to any primary education:179 He was also denied the benefits of another right –​the right to an elementary education. While Evgueni is an intelligent and thriving young boy, the disability label the government attached to him served to bar him from attending public schools. The immigration judge excused the Russian government’s treatment of Evgueni because Russia “does not have the resources to provide medical attention to individuals at the same

175 Secretariat for the Convention on the Rights of Persons with Disabilities-​d esa, ohchr and Inter-​Parliamentary Union (n 136) 82. 176 Secretariat for the Convention on the Rights of Persons with Disabilities-​d esa, ohchr and Inter-​Parliamentary Union (n 136) 83. 177 Secretariat for the Convention on the Rights of Persons with Disabilities-​d esa, ohchr and Inter-​Parliamentary Union (n 136) 82. 178 Council of Europe Commissioner for Human Rights (n 6) 13. 179 Tchoukhrova et al v Gonzalez (n 56) at para. 11.

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standards as in developed nations.” He applied the same reasoning to the state’s refusal to provide Evgueni with an elementary or other education. However, that reasoning was erroneous. The denial of primary education solely based on the applicant child’s disability was found not to be justifiable on the basis of financial considerations and the Court held that this also constituted persecution.180 This is exemplary of a rights-​based social model. Resource allocation based solely on the discriminatory factor of disability was found to be persecutory. This reflects a child-​and a disability-​specific assessment of the denial of education to children with disabilities. A further example concerns the case of Dena Hernandez v. Canada in which children with disabilities only had access to inappropriate schooling. The Canadian Federal Court considered the situation of a Mexican single mother with twins who suffered from cerebral palsy and were paralysed from the pelvis down and incontinent.181 In Mexico, the children had been sent to a school for children with intellectual disabilities, even though they were only physically, but not intellectually, disabled. Once in Canada they had integrated well into a school for children with physical disabilities. After referring to paragraphs 53 and 54 of the unhcr Handbook, which specifically mentions the right to access normally available educational facilities182 the Federal Court held that being prevented from continuing one’s education for a Convention reason could amount to persecution.183 In particular it stressed that preventing access to education –​and it appears appropriate education –​could constitute persecution as ‘discriminatory acts that are sufficiently serious and occur over such a long period of time that it can be said that the claimants’ physical or moral integrity is threatened’.184 While they were still in a segregated school in Canada, the case provides appreciation of the fact that the lack of provision of adequate education has life-​long effects on the child concerned. A similar example from New Zealand is Refugee Appeal No 76380.185 The case concerned a Czech family of Roma ethnicity. One of their children suffered from significantly impaired hearing on both ears and had to wear bilateral

1 80 Tchoukhrova et al v Gonzalez (n 56) at para. 11. 181 Dena Hernandez v Canada (Citizenship and Immigration) 2010 fc 178 (Federal Court of Canada). 182 Dena Hernandez v Canada (Citizenship and Immigration) (n 181) at para. 39. 183 Dena Hernandez v Canada (Citizenship and Immigration) (n 181) at paras. 38–​39. 184 Dena Hernandez v Canada (Citizenship and Immigration) (n 181) at para. 40. 185 Refugee Appeal No 76380 (n 4).

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hearing aids. In the Czech Republic, the child would have been placed in a ‘practical school’, which were schools that were ‘ostensibly set up to deal with pupils that have “mild mental disabilities” ’.186 Such schools were however a disguised way of providing segregated education for Roma children with 90% of the pupils being Roma. Practical schools had a ‘reduced curriculum’ and often ‘an inferior education’.187 While the child had no intellectual disability, he would likely be placed in a practical school both because he was Roma and because he had a physical disability.188 The rsaa held that putting the child into a practical school would be putting him at a significant learning disadvantage both because of his ethnicity and because of his hearing impairment, which would impact not only on his education but on his development as a person.189 This was found to arguably violate the right to education without discrimination in Art. 28 taken with Art. 2 crc.190 In relation to the prohibition of discrimination in Art. 2 crc, the rsaa referred to the grounds of race and ethnic or social origin but not disability. Together with the fact that he would be exposed to a certain level of harassment and discrimination as a Roma, this led to a finding of persecution.191 The child-​specific conclusion in this case contrasts with the irb decision in X (Re) concerning the Slovakian Roma boy with disabilities (set out in subchapter iii.B.5 above), who also faced segregated education.192 This comparable situation did not lead the irb to make a finding of persecution in relation to segregated education of Roma children in Slovakia in general and the child with disabilities in particular. The rsaa’s analysis in Refugee Appeal No 76380 merits further consideration. Even though the crpd had entered into force a couple of years earlier, and the crc specifically guarantees rights for children with disabilities, this decision evinces a child-​specific, but not a disability-​specific, approach to the denial of education. Indeed, the crc is the first UN human rights treaty to expressly include disability as a prohibited ground of discrimination in its Art. 2. Yet, the rsaa failed to refer to disability as a further pertinent ground of discrimination. A similar lack of awareness of disability-​specific issues is found in the reasoning in X (Re) concerning a Mexican boy suffering from epilepsy and

1 86 187 188 189 190 191 192

Refugee Appeal No 76380 (n 4) at para. 145. Refugee Appeal No 76380 (n 4) at para. 148. Refugee Appeal No 76380 (n 4) at para. 150. Refugee Appeal No 76380 (n 4) at paras. 152–​154. Refugee Appeal No 76380 (n 4) at para. 155. Refugee Appeal No 76380 (n 4) at paras. 150–​157. X (Re) (Slovakian Roma child with disabilities) (n 131).

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hyperactivity.193 The boy had been expelled from four or five different schools due to his disabilities. The irb held that it did not find his ‘changing school on a number of occasions to be the result of acts of persecution against him on the part of the school authorities, but rather his difficulties in adjusting to his environment’.194 The irb continued:195 It is true that the report mentions that there was alleged abuse on the part of some teachers, but it was all allegedly related to and stemming from the lack of resources and training of the staff in the schools in Mexico. It seems that the irb considered that the lack of resources could justify abuse or discriminatory treatment of a child with disabilities by its own teachers. This is inconsistent with a sound analysis under human rights law. While the duty of progressive realization of socio-​economic rights does permit states to implement these rights incrementally as financial resources permit, discrimination is never justified. The prohibition of discrimination  –​also when invoked in the context of socio-​economic rights –​is not subject to progressive realization and a lack of resources cannot justify discriminatory attitudes on the part of teaching staff. Furthermore, the irb did not even consider the right to inclusive education, but purely placed the fault with the boy suffering from disabilities.196 As with other rights, such as the right to health care, a well-​founded fear of being persecuted requires the production of sufficient evidence that no education would be available. This was found to be lacking in the case of a Filipina single mother with a child with disabilities (the type of disability is not further specified).197 The rrt held that there was evidence of free elementary and secondary public education, that the Philippines Constitution prohibited discrimination on grounds of disability and that the National Council for the 1 93 194 195 196

X (Re) (Mexican single mother with son with epilepsy) (2007) MA6-​06101 (irb (Canada)). X (Re) (Mexican single mother with son with epilepsy) (n 193). X (Re) (Mexican single mother with son with epilepsy) (n 193). A similar conclusion was reached by the irb in the case of a Lebanese boy with Tyrosinemia and adhd who had been discriminated against by his teacher and his classmates without intervention by the teacher in X (Re) (Lebanese minor with Tyrosinemia and adhd) (2019) MB7-​24799 (irb (Canada)); see also X (Re) (Pakistani minor with disability) (2019) TB8-​05185; TB8-​05186 (irb (Canada)) concerning a Pakistani girl who had been taunted, harassed and discriminated against by schoolchildren and her teachers because of her disability, but whose case was dismissed. 197 RRT Case No 1401757 (Filipina single mother with child with disabilities) [2014] rrta 652 (rrt (Australia)).

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Welfare of Disabled Persons had ‘formulated policies and coordinated the activities of all government agencies for the rehabilitation, self-​development and self-​reliance of persons with disabilities and their integration into mainstream society’.198 On this basis, the rrt was not satisfied that the child would in fact be discriminated against in its schooling in the Philippines.199 There is no decision yet addressing solely the question of segregated rather than inclusive schooling of children with disabilities. This may not be surprising seeing that segregated schooling is still the norm in many countries, including asylum states. However, if a disability-​specific interpretation of persecution is to be adopted, it is necessary to recognize the serious prejudicial effects on children with disabilities and on society as a whole of continuing segregated schooling (see further subchapter iii.D.7 below). 8 Situations of War Persons with disabilities are disproportionately affected by situations of conflict and war.200 War and armed conflicts in particular cause persons to become disabled. It is estimated that for every child killed in warfare, three are injured and permanently disabled in the context of armed conflict.201 Among Syrian refugees for instance, it has been estimated that the number of persons with disabilities consists of 22 per cent of the Syrian refugee population, much higher than the general average of 15 per cent.202 Furthermore, negative attitudes towards persons with disabilities may escalate during situations of armed conflict, as persons with disabilities are particularly vulnerable to abuse in such situations.203 198 RRT Case No. 1401757 (Filipina single mother with child with disabilities) (n 197) at para. 22 citing the US State Government, Country Reports on Human Rights Practices for 2013. 199 RRT Case No. 1401757 (Filipina single mother with child with disabilities) (n 197) at para. 22 citing the US State Government, Country Reports on Human Rights Practices for 2013. 200 Statement of the Committee on the Rights of Persons with Disabilities on disability inclusion for the World Humanitarian Summit 1; Charter on Inclusion of Persons with Disabilities in Humanitarian Action; see also Stephanie A  Motz, ‘Article 11:  Situations of Risk and Humanitarian Emergencies’ in Michael A Stein, Ilias Bantekas and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities:  A Commentary (Oxford University Press 2018). 201 Don MacKay, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34 Syracuse Journal of International Law and Commerce 323, 326. 202 Brookings Institute, ‘Disabled and Forcibly Displaced’ (27 October 2016). 203 ecosoc, Commission for Social Development, ‘Report of the Special Rapporteur of the Commission for Social Development on Monitoring the Implementation of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities on the Third Mandate, 2000–​2002, Annex:  Reaching the Most Vulnerable:  Proposed Supplement to

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While disability-​specific refugee claims have rarely been raised in the context of general situations of war, the impact of a disability-​specific appraisal can be illustrated by reference to the case of Jeyaseelan v. Canada.204 This concerned a young Tamil woman who had suffered from polio, which had caused mobility impairments as a result.205 While the main asylum grounds of the applicant had been disbelieved, the issue arose whether she would have a well-​founded fear of persecution on the basis of her disability combined with the country situation in Sri Lanka at the time. She was not able to run and was walking with a limp. Her evidence was that she feared that in Sri Lanka ‘people would try to get to a bunker or go into the temple but because of her disability she could not run and would have to immediately lie on the ground when the bombing started’.206 This exposed her to a heightened risk of harm due to her disability and the Federal Court remitted the matter for reconsideration to the irb.207 This case demonstrates how a disability-​specific approach to persecution in situations of war may lead to a finding of persecution on the basis of disability in an individual case, even though there may otherwise not be a discriminatory element to the situation of war. 9 Denial of Legal Capacity Persons with disabilities, particularly intellectual or psychosocial disabilities, are regularly denied their right to legal capacity. It has been said that ‘[m]‌illions of people with disabilities are stripped of their legal capacity worldwide, due to stigma and discrimination, through judicial declaration of incompetency or merely by a doctor’s decision that the person “lacks capacity” to make a decision’.208 In asylum cases, the denial of legal capacity is rarely considered as

204 2 05 206 207

208

the Standard Rules on the Equalization of Opportunities for Persons with Disabilities’ un Doc E/​c n.5/​2004/​4 (9 January 2002) section E, at paras. 35–​37. Jeyaseelan v Canada (Minister of Citizenship and Immigration) 2002 fct 356 (Federal Court of Canada). Jeyaseelan v Canada (Minister of Citizenship and Immigration) (n 204). Jeyaseelan v Canada (Minister of Citizenship and Immigration) (n 204) at para. 8. Jeyaseelan v Canada (Minister of Citizenship and Immigration) (n 204) at para. 8; similarly, the Federal Court of Canada remitted the case of a Somali elderly woman with disabilities, who was also unaccompanied and without family support upon return, to the irb for further consideration, as the return of the applicant to Al-​Shabaab controlled areas raised relevant issues under the Refugee Convention because of the applicant’s heightened vulnerabilities, see Abbar v Canada (Minister of Citizenship and Immigration) [2017] fc 1101 (Federal Court of Canada) at para. 47. UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ un Doc A/​h rc/​22/​53, 1 February 2013 at para. 65.

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a separate issue, but in fact it arises in many of the cases concerning disability. Very often, this arises as an issue in the context of forced institutionalisation, to which the person concerned has not given her informed consent. For instance, this would have arisen as an issue in the case of X (Re) set out in subchapter iii.B.3 above concerning the Czech man fearing forced institutionalisation. He had raised his fear of being institutionalized against his will and with inadequate control of mental health facilities by the courts.209 Similarly, the case set out in subchapter iii.B.3 of the Ghanaian applicant suffering from psychosis and depression fearing forced institutionalisation in a prayer camp raised the issue of institutionalisation without consent.210 However, in neither of these cases, the issue of legal capacity was raised as a separate harm constituting or contributing to serious harm. This demonstrates the lack of awareness on the part of both advocates and decision-​makers regarding the right of persons with disabilities to legal capacity under Art. 12 crpd. However, there is one Canadian asylum case, in which the denial of legal capacity has arisen as a separate issue. In Louis v. Canada the Federal Court considered the refugee claim of a man from Trinidad and Tobago who suffered from paranoid schizophrenia and who was partially unable to care for himself, to exercise his civil rights and to administer his property.211 He had claimed that Trinidad and Tobago did not offer ‘a public curatorship comparable to the one that exists in Quebec’. However, he had failed to provide evidence to that effect.212 On this basis, the Federal Court reached the conclusion that the applicant had failed to establish that he feared more than mere discrimination.213 While there is little information regarding the evidence that was before the court, this case importantly demonstrates that the denial of legal capacity can arise as a basis for asylum claims of persons with disabilities. 10 Conclusion The analysis in this subchapter has shown that various disability-​specific forms of serious harm can arise in asylum claims. Such forms of harm have sometimes been assessed by the courts and tribunals in a disability-​specific manner. However, in many instances, the judicial approach still lacks awareness of the human rights that persons with disabilities are entitled to, thereby denying them their dignity and human rights. In addition, the approach expounded 2 09 210 211 212 213

X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 22. RRT Case No. 1219395 (Ghanaian with mental health problems) (n 49). Louis v Canada 2012 fc 1055 (Federal Court of Canada). Louis v Canada (n 211) at para. 20. Louis v Canada (n 211) at paras. 26–​27.

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in many of the cases above is reminiscent of a medical approach to disability, viewing persons with disabilities as objects of charity who require help rather than as autonomous rights-​holders. Asylum decision-​makers have generally not yet embraced the paradigm shift to the social human rights-​based model. The following subchapter analyses the general rules of interpretation under the vclt and how these provide for a disability-​specific approach to ‘serious harm’. In subchapter iii.C.5 below, the international human rights standards pertinent to the individual forms of harm set out in subchapter iii.B above are elaborated upon. Finally, in subchapter iii.C.6, I conclude on what a disability-​ specific approach to ‘serious harm’ would require. C

Disability-​Specific Approach to Serious Harm in Light of the vclt

1 Introduction This subchapter will examine the interpretation of the serious harm element of ‘being persecuted’ in light of the vclt and, in a disability-​specific manner, in line with the crpd. In a first step the generally applicable principles in accordance with Arts. 31 and 32 vclt will be considered in the context of ‘being persecuted’. In particular, the ordinary meaning, context, object and purpose, as well as subsequent practice and drafting history, are examined in subchapter iii.C.2. In a next step, the different academic approaches to the interpretation of ‘being persecuted’ in the light of international human rights are examined in subchapter iii.C.3. Against these different approaches, the practice of unhcr and states in relation to the definition of persecution is then examined in subchapter iii.C.4. In a further step, the disability-​specific standards in relation to each of the situations set out in subchapter iii.B are considered in subchapter iii.C.5 and an overall conclusion on a disability-​specific interpretation of persecution is then drawn in subchapter iii.C.6. Interpretation according to Art. 31 vclt and Art. 32 vclt (Drafting History) As has already been pointed out in Chapter ii of this book, the terms used to describe the prohibited ill-​treatment in Art. 1A(2) Refugee Convention, ‘being persecuted’, were deliberately left undefined in order to adapt to modern forms of persecution. The lack of a more precise definition of ‘being persecuted’ in the Refugee Convention together with the choice of a word, which is in itself not very precise (as opposed to terms, such as torture or killing, which would be more restricted in their meaning), clearly indicates the drafters’ intention that the term should be interpreted in an evolutionary manner. It would serve

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‘little purpose’ to attempt to provide an exhaustive list of all forms of persecution, given that there are ‘no limits to the perverse side of human imagination’.214 In fact, any attempt to define persecution in a more restrictive manner ‘could limit a phenomenon that has unfortunately shown itself all too adaptable in the history of humankind’.215 The lack of any definition of persecution in the Refugee Convention has led decision-​makers and scholars at first to reach for dictionary definitions of persecution for guidance as to the ordinary meaning of the term. As Storey notes, ‘between the 1960s and 1990s, judges and policy-​makers were from a generation who typically had little or no background in international law’ and so tried to find ready-​made answers in dictionaries.216 Similarly, scholars have sometimes relied on dictionaries as an aid to the interpretation of the term ‘being persecuted’.217 However, the use of dictionary definitions of ‘persecution’ has been criticised as leading ‘to a sterile and mistaken interpretation’218 on several grounds. First, it leads to ‘an unseemly ransacking of dictionaries for the mot juste appropriate to the case at hand’.219 It would be highly worrying if the ‘understanding of this 2 14 Guy Goodwin-​Gill, The Refugee in International Law (2nd edn, cup 1996) 69. 215 Volker Türk and Frances Nicholson, ‘Refugee Protection in International Law: An Overall Perspective’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (unhcr 2003) 39, referred to in Hugo Storey, ‘Persecution: Towards a Working Definition’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on Migration and International Law (Edward Elgar Publishing 2014) 461. 216 Storey (n 215)  463; Jane McAdam, ‘Interpretation of the 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol:  A Commentary (Oxford University Press 2011)  87 mn 29; see for instance Applicant A v Minister for Immigration and Ethnic Affairs High Court of Australia [1997] hca 4; Kagema v Secretary of State for the Home Department [1997] Imm ar 137 (UK Court of Appeal), approved and followed in Demirkaya v Secretary of State for the Home Department [1999] Imm ar 498 (UK Court of Appeal), cited in Mark Symes and Peter Jorro, Asylum Law and Practice (2nd edn, Bloomsbury Professional 2010) 120 mn 3.2. 217 See for instance Zimmermann and Mahler (n 13) 346 mn 220 referring to the Latin ‘persequi’; Jean-​Yves Carlier, ‘The Geneva Refugee Definition and the Three Scales’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities (Cambridge University Press 1999) 44, and Francesco Maiani, ‘La Définition de Réfugié Entre Genève, Bruxelles et Berne –​Différences, Tensions, Ressemblances’, Schweizer Asylrecht, EU-​Standards und internationales Flüchtlingsrecht:  Eine Vergleichsstudie (Stämpfli Verlag ag 2009)  both referring to the Petit Robert definition. 218 Refugee Appeal No 71427/​99 [2000] nzar 545 (New Zealand rsaa) at para. 46. 219 Rodger Haines qc in Refugee Appeal No. 71427/​99 (n 218), who has been variously cited, for instance by Symes and Jorro (n 216) 120 mn 3.2; Storey (n 215) 464 fn 24; Michelle Foster, International Refugee Law and Socio-​Economic Rights  –​Refuge from Deprivation (Cambridge University Press 2009).

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keystone concept’ of the refugee definition would ‘merely depend on which dictionary best fits the case or the interests of the respective court’.220 Indeed, it has been noted that dictionaries vary in the gravity that they attribute to the term persecution.221 Secondly, the international character of the Refugee Convention makes it questionable that reference to local dictionaries, for instance an Australian dictionary, is appropriate in order to discover the meaning of this international threshold.222 Thirdly, such a dictionary definition approach is inconsistent with an evolutionary interpretation, ‘unless there is an acceptance of the need for adjustments appropriate to the context’.223 Finally and most importantly, the lexicographical approach is ‘far too simplistic and contrary to the holistic exercise enjoined by the vclt’.224 Indeed, under the vclt rules of interpretation, the text in itself does not assume any supreme position in the search for the meaning of a term (see Chapter ii of this book). An interpretation of the term ‘being persecuted’ in accordance with the vclt rules of interpretation requires an interpreter to search for the ordinary meaning not in the abstract, based on some randomly chosen dictionary, but in light of its context in the Refugee Convention (internal context), outside of the Refugee Convention (external context) and in view of its object and purpose. It is the ordinary meaning ‘to be given’ to the terms in such an exercise and in good faith, that is appropriate and warranted under the vclt. As regards internal context, both Art. 33(1) and Art. 31(1) Refugee Convention have sometimes been suggested as relevant context to the interpretation of the term ‘being persecuted’. In particular, the refoulement-​prohibition in Art. 33(1) Refugee Convention has been referred to as authority for the proposition that ‘being persecuted’ is to be interpreted chiefly as including threats to an individual’s ‘life or freedom’, as this is the wording of Art. 33(1).225 However, this is not very persuasive. Had the drafters intended to limit the scope of the refugee definition in Art. 1A(2) Refugee Convention to threats to life or freedom only, 2 20 Zimmermann and Mahler (n 13) 346 mn 220, also cited in Storey (n 215) 463. 221 Symes and Jorro (n 216) 121 M 3.2 fn 4. 222 Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14 (High Court of Australia) per Kirby J, cited in Symes and Jorro (n 216) 121 mn 3.2 fn 4. 223 Minister for Immigration and Multicultural Affairs v Khawar (n 222) per Kirby J. 224 Storey (n 215) 463. 225 David Weissbrodt, The Human Rights of Non-​Citizens (Oxford University Press 2008) 154 Art. 33(1) Refugee Convention reads: ‘Prohibition of expulsion or return (“refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.

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they would have used the same terms that they used in the context of Art. 33(1) and indeed also Art. 31(1) Refugee Convention regarding the illegal entry or presence of refugees who have come ‘directly from a territory where their life or freedom was threatened in the sense of article 1’.226 The fact that Art. 1A(2) Refugee Convention uses the term ‘being persecuted’, whereas Arts. 31(1) and 33(1) Refugee Convention are limited to ‘threats to life or freedom’, indicates that the scope of ‘being persecuted’ was intended to extend beyond threats to life or freedom. Therefore, suggestions that the term ‘being persecuted’ is limited to situations where life or freedom is at stake are now ‘obsolete’.227 In addition, Zimmermann and Mahler observe that the principle of non-​ refoulement has a ‘completely different aim, namely to provide for a rather minimal standard of protection’ which is narrower than the question of who qualifies for refugee status.228 Similarly, Art. 31 Refugee Convention has a different aim, legitimating illegal border crossings and illegal presence in situations of a threat in a third country whence the refugee came. While Art. 1A(2) Refugee Convention may inform the interpretation of Arts. 31 and 33 Refugee Convention, this is not the case the other way around.229 A further contextual element is the Preamble to the Refugee Convention and its reference to the udhr. The preambular statement that the udhr has ‘affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination’ and that refugees should enjoy ‘the widest possible exercise of these fundamental rights and freedoms’ indicates that the entire udhr may be relevant to refugee law. In particular, it indicates that ‘being persecuted’ is not limited to specific human rights, such as death or torture, but refers to all human rights which are equally protected.230 Indeed, the preambular reference to the udhr has been interpreted as meaning that the aim of the Refugee Convention is to provide surrogate protection where international human rights violations occur against certain particularly marginalized groups. This further informs the object and purpose of the refugee definition and the international refugee law regime. The Refugee Convention and its definition of

2 26 Zimmermann and Mahler (n 13) 346 mn 221–​222. 227 Zimmermann and Mahler (n 13) 346 mn 221; see also Storey (n 215) 464 who criticises this as too narrow; and Foster (n 219) 92. 228 Zimmermann and Mahler (n 13) 346 mn 221; Storey (n 215) 464. 229 Zimmermann and Mahler (n 13) 346 mn 222; see also Foster (n 219) 92, referring to Simon-​ Brown LJ in R v Secretary of State for the Home Department, ex p Adan [1999] 3 wlr 1274 (UK Court of Appeal). 230 Zimmermann and Mahler (n 13) 347 mn 225.

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who is a refugee is ‘concerned with identifying those to whom surrogate international protection should be afforded’.231 Asylum states provide protection to refugees from human rights violations, against which there is no protection in the countries of origin.232 The provision of surrogate protection is its chief objective.233 As the Canadian Supreme Court held in Ward, international refugee law ‘was formulated to serve as a back-​up to the protection one expects from the State of which an individual is a national’.234 This does not mean, however, that international refugee law and international human rights law serve the exact same purpose. Deborah Anker has aptly summarized the relationship between the two as follows:235 To paint with a broad brush, the international community created two regimes to address human rights abuses: one, the human rights regime, to monitor and deter abuse, and the other, the refugee regime, to provide surrogate protection to some of those who are able to cross borders. Yet, while the aims of the international refugee law and the international human rights law regimes are different, ‘the two regimes have increasingly converged and contributed to each other’s growth’.236 As a result, the risk of cultural imperialism or of ‘overstepping boundaries is much less in the context of refugee law, which has a purely palliative function’.237 Refugee law provides surrogate protection to those, who fear violations of their human rights in their countries of origin. The surrogate protection goal of the refugee definition thus

231 James C Hathaway and Michelle Foster, ‘The Causal Connection (“Nexus”) to a Convention Ground  –​Discussion Paper No. 3  –​Advanced Refugee Law Workshop International Association of Refugee Law Judges –​Auckland, New Zealand, October 2002’ 15 International Journal of Refugee Law 461, 468 para 28. 232 Hélène Lambert, ‘The Conceptualisation of “Persecution” by the House of Lords: Horvath v Secretary of State for the Home Department’ (2001) 13 International Journal of Refugee Law 16, 18. 233 Hathaway and Foster (n 13) 378; Zimmermann and Mahler (n 13) para. 331; Hathaway and Foster (n 231) 469. 234 Canada (Attorney General) v Ward [1993] 2 scr 689 (Supreme Court of Canada) (La Forest J). 235 Deborah Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harvard Human Rights Journal 133, 135; also cited in Motz (n 10) 153. 236 Fatma E Marouf and Deborah Anker, ‘Socioeconomic Rights and Refugee Status: Deepening the Dialogue Between Human Rights and Refugee Law’ (2009) 103 American Journal of International Law 784, 785 referring to gender-​based persecution which informed the development of human rights law. 237 Marouf and Anker (n 236) 793, referring also to Foster (n 219) 80.

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directly informs the interpretation of the term ‘being persecuted’, so that it is necessary to consider whether the applicant fears a real risk of a violation of her human rights in her country of origin. A further pertinent interpretive aspect is the subsequent agreement of the States parties to the Refugee Convention, as expressed in the 2001 Declaration.238 In this, the States parties expressly declared their continued commitment to upholding the values and principles ‘which require respect for the rights and freedoms of refugees’ (Art. 2 of the 2001 Declaration) and recognised that refugee protection has to be granted ‘in the evolving environment’ of ‘ongoing violations of human rights and international humanitarian law’ (Preamble to the 2001 Declaration, para. 6). This also confirms a close link between refugee protection and violations of international human rights norms. As regards the drafting history and the intention of the drafters, Grahl-​ Madsen has pointed out that the drafters probably deliberately did not include any definition of the term ‘persecution’ in the Refugee Convention, so that the definition could evolve over time.239 The ordinary meaning, context, and object and purpose of ‘being persecuted’ as well as subsequent agreement in the form of the 2001 Declaration and the intention of the drafters thus indicate that ‘being persecuted’ was deliberately formulated in an open-​ended manner and at least today needs to be interpreted in light of human rights violations. The refugee definition seeks to address those situations, in which the person asks the asylum state for surrogate protection from human rights violations in her country of origin. Thus, what constitutes ‘serious harm’ is to be interpreted in line with international human rights standards. This is what has been referred to as ‘the human rights approach’ to the refugee definition in Chapter ii of this book. In fact, it is now quite widely accepted that human rights are pertinent to the interpretation of ‘being persecuted’.240 Yet, there is ample divergence as to 238 ‘Declaration of States Parties to the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12–​13 December 2001’ un Doc hcr/​m msp/​2001/​09, 16 January 2002  . 239 Grahl-​Madsen (n 1)  193, cited in Francesco Maiani, ‘The Concept of “Persecution” in Refugee Law:  Indeterminacy, Context-​Sensitivity, and the Quest for a Principled Approach’, Les dossiers de Jean-​Pierre Cavaillé –​De la persécution (Le Dossiers du Grihl 2010)  mn 9; on the origins of the term persecution in the British Aliens Act 1905, see Jane McAdam, ‘Rethinking the Origins of “Persecution” in Refugee Law’ 25 International Journal of Refugee Law 667. 240 But see Maiani (n 239) mn 35 noting that Switzerland and the US still do not accept this, and criticising Switzerland’s circumstantial approach as an example why the quest for a more principled approach is justified, mn 29–​30; see also Maiani (n 217) 26; see also

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how international human rights norms are relevant to it. Elaborate and different theories of the human rights approach have been articulated in relation to the interpretation of this element of the refugee definition. This will be considered in the following subchapter. The Relevance of Human Rights to Persecution: Different Theories of the Human Rights Approach The human rights approach to persecution can be traced back to Atle Grahl-​ Madsen who referred to international human rights norms in the interpretation of persecution in 1966.241 He listed a number of udhr rights (such as the right to life, liberty and security of the person, the prohibition of slavery, of torture or cruel, inhuman and degrading treatment, the prohibition of interference with a person’s privacy, family, home, or correspondence, of attacks upon one’s honour or reputation, and of arbitrary deprivation of property), an arbitrary violation of which would amount to persecution.242 He provided an illustrative list of such violations that would amount to persecution.243 Most of the human rights Grahl-​Madsen considered were later in the same year grouped together as civil and political rights in the iccpr. In relation to those human rights which would come to be recognised in the icescr as economic, social and cultural rights, he considered that only very severe violations of, for example, the right to work would qualify as persecution, such as in the case of a systematic denial of employment.244 Similarly, he recognised that in certain extreme circumstances violations of the right to education would amount to persecution, such as exclusion from any type of education, which would ‘affect [one’s] whole life much more profoundly than a relatively short term of imprisonment’.245 Since Grahl-​Madsen’s writing, scholars have made various attempts to explain when human rights violations constitute persecution. They have

3

241 2 42 243 244 245

Michelle Foster, ‘Economic Migrant or Person in Need of Protection? Socio-​Economic Rights and Persecution in International Law’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 238 stating that the US courts are ‘least likely to rely on human rights standards’. Grahl-​Madsen (n 1) 193; in fact, Grahl-​Madsen himself referred to Jacques Vernant, The Refugee in the Post-​War World (Yale University Press 1953)  who had adopted a human rights approach already prior to him. Grahl-​Madsen (n 1) 195. Grahl-​Madsen (n 1) 201. Grahl-​Madsen (n 1) 201–​209. Grahl-​Madsen (n 1) 215, and see generally on the right to education 209–​212.

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systematized the relevance of human rights violations to the interpretation of persecution in different ways. At the risk of being too brute a categorization, three overall approaches can be discerned in scholarly writings. The first group of human rights approaches distinguishes between different types or categories of human rights when determining which human rights violations will amount to persecution. The second group focuses on the type or nature of the violation of the rights, namely the gravity, severity, intensity or duration of the violation. A third approach gets rid of both of these distinctions and views practically all human rights violations as sufficient to amount to persecution. These three different approaches will be considered briefly in the following. The first group has proposed a hierarchy of human rights, which is supposed to assist with the finding of sufficient seriousness for a human rights violation to amount to persecution. One rather radical proponent is Jean-​Yves Carlier. Carlier postulates the following model in order to assess whether a particular human rights violation amounts to persecution:246 The more fundamental a right is (right to life, physical integrity, freedom …) the less quantitatively and qualitatively severe the treatment need be. The lower the priority attributed to the violated freedom (economic, social or cultural rights), the more quantitatively and qualitatively severe the treatment must be. Thus, the necessary threshold for persecution is reached more easily when the treatment concerns civil or political rights, and is reached less readily when economic, social or cultural rights are at stake. Carlier admits that this hierarchy must not be considered definitive, but may evolve, as it depends on ‘external contextualisation’ as to how the rights come to be appreciated in the jurisprudence of the relevant human rights courts.247 The Carlier model has found extensive resonance in Anglo-​Saxon case law. Claims based on socio-​economic deprivation have regularly been met with very stringent requirements so that ‘only very extreme cases are in practice accepted’.248 Foster explains that the Carlier model underlies this approach:249

246 Jean-​Yves Carlier, ‘General Report’ in Jean-​Yves Carlier and others (eds), Who is a Refugee? (Kluwer Law International 1997) 703. 247 Jean-​Yves Carlier, ‘Et Genève Sera … La Définition Du Réfugié : Bilan et Perspectives’, La Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés 50 Ans Après : Bilan et Perspectives (Bruylant 2001) 80–​81. 248 Foster (n 219) 123–​124. 249 Foster (n 219) 123–​124.

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The rationale appears to be that since the value of the right is lower (as compared to those engaged in more traditional claims involving civil and political rights), the level of violation must be significantly higher in order to reach the requisite level of persecution –​a clear (though implicit) application of the Carlier model. A second variant of this hierarchical approach is the one proposed by James Hathaway in his seminal work the Law of Refugee Status of 1991.250 Hathaway distinguished between first-​category rights (non-​derogable iccpr rights),251 second-​ category rights (derogable, but immediately applicable iccpr rights),252 third-​category rights (icescr rights subject to progressive implementation), and fourth-​category rights (udhr rights neither enshrined in the iccpr nor the icescr).253 This has been described as a four-​level ‘hierarchy of rights’.254 According to this approach, a violation of first-​category rights would always constitute persecution, whereas a violation of second-​category rights would only be persecutory, if it was not necessary in a public emergency and not going beyond what was strictly necessary. A  violation of third-​category rights would amount to persecution, if a state was in breach of its basic obligations, and one of fourth-​category rights would not normally constitute persecution.255 While this was applied to some extent by courts around the world, virtually no jurisdiction actually applied this strictly.256 Storey described this four-​level model as ‘too unwieldy, sometimes inconsistent, and fast-​changing for the layman to master’.257 Indeed, Foster has pointed out that courts around the world misunderstood the approach and tended to equate the level of the

2 50 James Hathaway, The Law of Refugee Status (1st edn, Butterworths 1991). 251 Hathaway (n 250) 109, 112 listing freedom from arbitrary deprivation of life, protection against torture or cruel, inhuman, or degrading treatment or punishment, freedom from slavery, the prohibition of criminal prosecution for ex post facto offences, the right to recognition as a person in law, freedom of thought, conscience and religion. 252 Hathaway (n 250)  110 referring to rights, such as freedom from arbitrary arrest and detention, the right to equal protection for all, right to a fair and public hearing, presumption of innocence, right to family life and privacy, freedom of internal movement and choice of residence, freedom to leave and return to one’s own country, freedom of opinion, expression, assembly and association, the right to form and join trade unions, etc. 253 Hathaway (n 250) 111; also discussed in Motz (n 200) 154. 254 Storey (n 215) 469. 255 Hathaway (n 250) 109. 256 Storey (n 215) 469 fn 45 re UK applying Hathaway model on socio-​eco rights. 257 Storey (n 215) 470.

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right with the seriousness of the violation required, effectively applying a Carlier model.258 A different, second type of approach is not to distinguish between different types of human rights, but to concentrate on the nature and seriousness of the violation of the human right in order to determine whether it amounts to persecution. This second approach posits that the distinction is not properly drawn between different types of human rights, but between different types of violations. The question is not which right is at stake, but how severe or grave the violation of the right is. An example of this is the approach expounded by Zimmermann and Mahler. They state that the violation of any human right constitutes persecution, where the violation is ‘fundamental’, which means that ‘a key aspect of human dignity is violated’.259 In order to determine whether a violation is fundamental they consider the following:260 Possible factors are the intensity of the acts and their duration; the danger of or the actual recurrence of such acts; whether the acts occur only in individual cases or as part of a larger campaign of systematic human rights violations; and finally the effect of such acts on the health, family life, or participation in political life of the person concerned. According to this approach, a violation of not only udhr rights, but also iccpr, icescr, cedaw, cerd and crc rights would qualify for persecution, as would violations of regional human rights treaties ‘to the extent that they contain parallel guarantees’.261 While it is generally argued that a short duration or an isolated act of a human rights violation normally does not suffice, it is equally clear that an isolated incident of severe human rights violations such as torture constitutes persecution.262 Zimmermann and Mahler argue that the fact that the Refugee Convention only provides surrogate protection, indicates that only cases of ‘severe violations of human rights’ infringing the core content of the right should be considered as persecution, as ‘first and foremost, the country of origin is obliged to guarantee human rights to its citizens’, so that ‘a third State may not be expected to guarantee all the rights 2 58 Foster (n 219) 123. 259 Zimmermann and Mahler (n 13) 347 mn 224; a similar approach is adopted by Storey (n 215) 475–​476 which is however not discussed separately here. 260 Zimmermann and Mahler (n 13) 348 mn 227. 261 Zimmermann and Mahler (n 13) 347 mn 225. 262 Zimmermann and Mahler (n 13) 348 mn 228.

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to the same extent and manner to an alien seeking refuge as the country of origin’.263 Guy Goodwin-​Gill and Jane McAdam have advocated for a further version of such an approach. They argue that persecution must be related ‘to developments within the broad field of human rights’.264 Their approach could be seen as a hybrid between the hierarchical and the fundamental violations approaches. On the one hand, the violation of certain rights always amounts to persecution. On the other, in relation to other rights only certain, particularly severe violations amount to persecution. According to them, the ‘core meaning of persecution readily includes the threat of deprivation of life or physical freedom’.265 They also consider that a denial of non-​derogable rights under the iccpr constitutes persecution. In addition to these, a violation of those rights, which are essential to the maintenance of the integrity and inherent human dignity of the individual are also relevant to an interpretation of persecution. These are in particular the right to liberty and security of the person, including freedom from arbitrary interference in private, home and family life.266 Beyond these threats, it is ‘very much a question of degree and proportion’ as to which human rights violations amount to persecution.267 In particular, the question when human rights violations constitute persecution will ‘turn on an assessment of a complex of factors, including (1) the nature of the freedom threatened, (2) the nature and severity of the restriction, and (3) the likelihood of the restriction eventuating in the individual case’.268 However, factor (3), the likelihood of the harm, goes to the well-​foundedness of the fear and should not be mixed into the definition of what constitutes persecution. In addition, as already stated regarding the hybrid character of their approach, factor (1) has

2 63 264 265 266

Zimmermann and Mahler (n 13) 348 mn 226. Goodwin-​Gill and McAdam (n 13) 91. Goodwin-​Gill and McAdam (n 13) 92. Goodwin-​Gill and McAdam (n 13) 93 in particular, the following human rights violations amount to persecution: threaten deprivation of life or liberty; torture or cruel, inhuman or degrading treatment; subjection to slavery or servitude; non-​recognition as a person (particularly where the consequences of such recognition impinge directly on an individual’s life, liberty, livelihood, security, or integrity); and oppression, discrimination, or harassment of a person in his or her private, home, or family life. 267 Goodwin-​Gill and McAdam (n 13) 92. 2 68 Goodwin-​Gill and McAdam (n 13) 92 in relation to socio-​economic rights they state that ‘less overt measures may suffice, such as the imposition of serious economic disadvantage, denial of access to employment to the professions, or to education, or other restrictions on the freedoms traditionally guaranteed in a democratic society, such as speech, assembly, worship, or freedom of movement’.

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been criticised as reiterating the hierarchical Carlier model.269 This leaves only factor (2), which concerns the nature and severity of the restriction. The most systematic account of an approach focusing on the nature and seriousness of the violation, particularly in the context of socio-​economic rights, has been put forward by Michelle Foster in her work International Refugee Law and Socio-​Economic Rights: Refuge From Deprivation.270 Foster takes the violation of socio-​economic rights as persecution as a starting point and critically assesses the approach that has been taken by courts in Canada, the US, the United Kingdom, Australia and New Zealand in relation to such claims. Finding that the approach to socio-​economic rights violations in international refugee law is ‘drastically underdeveloped’, she sets out a principled approach for the adjudication of refugee claims involving the violation of socio-​economic rights.271 This is a ‘minimum core obligations approach’, which ‘provides a principled method of distinguishing between fundamental or key breaches and less serious violations’.272 In order to determine the unrelinquishable core of a human right, Foster relies on the analysis of the Committee on Economic, Social and Cultural Rights in its General Comments.273 This minimum core obligations approach ‘operates as a method of providing analytical structure to what decision-​makers are already effectively doing in respect of more traditional claims’.274 The ‘reference to minimum core obligations provides much-​ needed guidance’ in the area of socio-​economic rights.275 At the same time, it ‘allows for evolution as the composition of the core of different rights develops’.276 Indeed, the strength of this minimum core obligations approach has been described as providing a ‘broad framework for adjudication, while allowing for evolution at the same time’.277 The issue of progressive realization does not arise as ‘minimum core obligations are immediately enforceable and not subject to progressive realization’.278 While Foster’s approach focuses on the minimum core obligations for socio-​ economic rights, she also makes important fundamental arguments about the interdependence and interrelatedness of human rights. As will be seen below 2 69 270 271 272 273 274 275 276 277 278

Foster (n 219) 192–​193. Foster (n 219); see also Foster (n 240) 248–​249. Foster (n 219) 4. Foster (n 219) 200. Foster (n 219) 195–​201. Foster (n 219) 200. Foster (n 219) 200–​201. Foster (n 219) 200. Marouf and Anker (n 236) 789. Marouf and Anker (n 236) 790.

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in subchapter iii.C.5, this is particularly salient in the context of disability rights under the crpd. Foster debunks the following myths concerning three oft-​made key distinctions between civil and political rights on the one hand and socio-​economic rights on the other: firstly, it is now well-​established that both categories of rights involve both positive and negative duties; secondly, not only socio-​economic rights, but also civil and political rights require expenditure; thirdly, the justiciability of socio-​economic rights is given where the core of the right has been clearly identified, as the core of socio-​economic rights is not subject to progressive realization.279 Indeed, the availability of resources is irrelevant to the immediate obligation to realise the core of each right.280 In addition, ‘[n]‌on-​discrimination is considered part of the minimum core content of all rights in the icescr and, as Foster stresses, applies immediately to all states’.281 However, Foster’s book only addresses socio-​economic rights. Nevertheless, she criticises aspects of the hierarchical model, particularly the reliance on the derogability of a human right as a benchmark for its importance. First, she points out that even non-​derogable rights are not necessarily absolute, as the example of the right to freedom of religion in Art. 18 iccpr demonstrates.282 Secondly, all rights in the icescr are non-​derogable and their core obligations are immediately binding, rendering their downgrading to a lower category of rights questionable.283 Furthermore, certain rights which are not declared non-​derogable nevertheless have aspects that are non-​derogable, in particular the prohibition of discrimination.284 Finally, more recent human rights treaties, such as cedaw, cerd and the crc do not contain any provision for derogability and these Conventions contain both civil and political and socio-​ economic rights.285 David Martin also voiced a criticism against derogability as a benchmark, which was later taken on board in the second edition of The Law of Refugee Status, co-​authored by Hathaway and Foster, namely that the derogability of human rights is not a defensible benchmark for distinguishing between different 2 79 Foster (n 219) 159–​168. 280 Manisuli Ssenyonjo, ‘Economic, Social and Cultural Rights:  An Examination of State Obligations’ in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar Publishing 2010) 56. 281 Marouf and Anker (n 236) 790–​791. 282 Foster (n 219) 175–​176. 283 Foster (n 219) 176–​177. 284 Foster (n 219)  177–​178, referring to Human Rights Committee, ‘General Comment No. 29: States of Emergency (Article 4)’ un Doc ccpr/​C/​21/​Rev.1/​Add.11 (2001) at para. 8. 285 Foster (n 219) 178.

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categories of rights. He points to the difference between the rights which are non-​derogable under the iccpr and those that are non-​derogable under regional human rights treaties and the fact that ‘it is hard to see why ex post facto laws … would always be persecutory, whereas arbitrary arrest or detention without trial … might not be’.286 In addition, he questions that asylum states would not want to grant refugee status to those who, during a national emergency no longer benefit from the human rights protection in their country of origin, only because their country of origin has declared a state of emergency (and one might think of Turkey’s two-​year state of emergency from 2016 to 2018 and those that were being persecuted during that time287).288 However, Foster’s more fundamental critique is particularly valid in the context of a disability-​specific refugee definition. She questions the justification for categorically separating civil and political rights from socio-​economic rights based on the interdependence of all human rights; many acts involve both types of rights, such as the right to property and the right to an adequate standard of living or housing.289 Indeed, it will be seen in subchapter iii.C.5 below that this is in fact the case of several crpd rights, which contain in one right both civil and political and socio-​economic aspects. The rejection of this distinction in human rights practice and doctrine originated in Henry Shue’s Basic Rights: Subsistence, Affluence and U.S. Foreign Policy.290 Shue explained that the protection of basic rights entails three levels of correlative duties,291 which muddle the boundaries between positive and negative duties: the duty to avoid depriving someone of the right, the duty to protect others from its deprivation and the duty to aid the deprived,292 later reformulated as duties 286 David Martin, ‘The Law of Refugee Status. By James C.  Hathaway’. (1993) 87 American Journal of International Law 348, 350–​351. 287 bbc News, ‘Turkey Ends State of Emergency after Two Years’ (18 July 2018) . 288 Martin (n 286) 350. 289 Foster (n 219) 147. 290 Olivier De Schutter, International Human Rights Law  –​Cases, Materials, Commentary (Cambridge University Press 2010)  242–​256 with various further references; Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford University Press 2009) 96–​113; Ida Elisabeth Koch, ‘Economic, Social and Cultural Rights as Components in Civil and Political Rights: A Hermeneutic Perspective’ (2006) 10 The International Journal of Human Rights 405, 406. 291 Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd edn, Princeton University Press 1996) 32–​33; practically at the same time a four-​tiered approach was suggested by Asbjorn Eide, The Right to Adequate Food as a Human Right (un Doc E/​c n4/​ Sub2/​1983/​25 1983). 292 Shue (n 291) 52–​53.

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to respect, to protect and to fulfil or promote.293 This typology is now well-​ established and is regularly referred to by the Committee on Economic, Social and Cultural Rights.294 It is well-​recognised that civil and political rights also involve positive obligations and have resource-​implications.295 In the context of the adjudication of asylum claims, there are various types of cases involving positive obligations, for instance claims involving domestic violence.296 The fact that disability-​related claims may involve positive obligations is thus not a bar to them succeeding as claims for refugee status. This fundamental challenge to the distinction between civil and political rights and socio-​economic rights has likely influenced the second edition of The Law of Refugee Status, now co-​authored by Hathaway and Foster.297 In the chapter on serious harm, the authors reject hard distinctions between the violation of negative and positive human rights obligations, or between civil and political rights on the one hand, and economic, social or cultural rights on the other.298 No more reliance is placed on the categorisation of different rights based on their derogability. Instead, they now focus first on the general acceptance of the human rights norm, finding that all the rights contained in the udhr, the iccpr, the icescr, the cerd, cedaw, the crc and the crpd meet this threshold.299 Secondly, they stress that some human rights permit limitations on certain grounds of public interest and others can be derogated from in a situation of public emergency.300 They thus underline that not every interference with a human right constitutes a pertinent violation so as to amount to persecution. Thirdly, they rely on a de minimis test, which requires a sufficiently serious level of harm.301 2 93 Shue (n 291) Afterword. 294 cescr, ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ un Doc E/​1991/​23, 14 December 1990; and see e.g. cescr, ‘General Comment No. 12:  The Right to Adequate Food (Art. 11)’ un Doc E/​C.12/​1999/​5 (12 May 1999) para. 15. 295 For an overview of some of the case law under the echr affecting socio-​economic issues, see e.g. Koch (n 272) 408–​409. 296 For a discussion of the various issues in such cases, see S. Mullally, ‘Domestic Violence Asylum Claims and Recent Developments in International Human Rights Law: A Progress Narrative?’ (2011) 60 International & Comparative Law Quarterly 459. 297 Hathaway and Foster (n 13). 298 For a detailed discussion of the reasons against any such normative hierarchy between human rights see Foster (n 202) 157–​168; Hathaway and Foster (n 10) 207–​208. 299 Hathaway and Foster (n 13) 201–​202, 204–​205. 300 Hathaway and Foster (n 13) 205–​206. 301 Hathaway and Foster (n 13) 200–​208.

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As will be demonstrated below when considering the relevant human rights under the crpd to the different disability-​specific forms of serious harm, the same situation is often covered by both a civil and political right and a socio-​economic right under the crpd, as being two sides of the same coin, or different aspects of the same right. This means that a clear separation between different categories of human rights is no longer feasible, necessitating a new approach, such as the one set out by Hathaway and Foster. However, before proceeding to a consideration of the relevant norms under the crpd and international human rights law, this subchapter will examine which situations and human rights violations have been accepted as amounting to persecution in the practice of unhcr and states. Interpretation according to Art. 32 vclt (unhcr Practice and State Practice) Given the ambiguity of how the open-​ended term ‘being persecuted’ is to be interpreted and which human rights violations are particularly relevant, these supplementary means of interpretation will be drawn on in addition to the ordinary meaning, context, and object and purpose, and subsequent agreement in relation to persecution and the already examined supplementary means of the drafting history. While state practice is not consistent or unanimous, it nevertheless serves as a useful source of interpretation here.302 As regards unhcr’s practice, unhcr already stated in its Handbook in 1979 that it may be inferred from Art. 33 Refugee Convention that a threat to life or freedom always amounts to persecution.303 In addition, unhcr recognised in the Handbook that other ‘serious violations of human rights’ would also constitute persecution, thus focusing on the type of the violation of human rights.304 In addition, it has recognised that discrimination may rise to the level of persecution. While mere discrimination is not enough, ‘a persistent pattern of consistent discrimination will usually, on cumulative grounds, amount 4

302 Joan Fitzpatrick, ‘Revitalizing the 1951 Convention’ (1996) 9 Harvard Human Rights Journal 229, 240; Goodwin-​Gill and McAdam (n 13) 91; Zimmermann and Mahler (n 13) 347 mn 223. 303 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​1P/​4/​e ng/​r ev 3, December 2011) at para. 51. 304 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 303) at para. 51.

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to persecution and warrant international protection’.305 unhcr has also made it clear that part of the relevant circumstances to be evaluated are the psychological make-​up of the person concerned:306 Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs. … Due to variations in the psychological make-​up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. unhcr further recognised already in the Handbook that an applicant may have a fear of being persecuted on ‘cumulative grounds’, for instance by being subjected to ‘various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin), which taken together produce an effect on the mind of the applicant that amounts to serious harm.307 Otherwise, discrimination will amount to persecution only, if it leads ‘to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities’.308 Furthermore, measures of discrimination which are in themselves not of a serious character ‘may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence’. While this depends on all the circumstances of the case, it is more likely to pertain

305 unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ April 2001 5 MN 17 . 306 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 303) at para. 52. 307 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 303) at para. 53. 308 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 303) at para. 54.

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where there is ‘a cumulative element involved’.309 Laws of general application are persecutory where they are not in conformity with human rights standards or are inherently persecutory or implemented in a persecutory manner, for instance because the prosecution is discriminatory.310 More recently, unhcr has explained the development of the meaning of ‘being persecuted’ in light of international human rights law. According to unhcr, the ‘on-​going development of international human rights law subsequent to the adoption of the 1951 Convention has helped to advance the understanding, expressed in the unhcr Handbook, that persecution comprises human rights abuses or other serious harm, often but not always with a systematic or repetitive element’.311 For instance, in its more recent International Protection Guidelines on Child Asylum Claims, unhcr has expressly recognised that the violation of socio-​economic rights can amount to persecution:312 A violation of an economic, social or cultural right may amount to persecution where minimum core elements of that right are not realized. For instance, the denial of a street child’s right to an adequate standard of living (including access to food, water and housing) could lead to an intolerable predicament which threatens the development and survival of that child. Similarly, a denial of medical treatment, particularly where the child concerned suffers from a life-​threatening illness, may amount to persecution. Persecution may also be established through an accumulation of a number of less serious violations. This could, for instance, be the case where children with disabilities or stateless children lack access to birth registration and, as a result, are excluded from education, health care and other services. In addition, unhcr recognises the domino effect that the violation of one human right may have. In the case of children, it has recognised that the ‘violation of one right often may expose the child to other abuses; for example, 309 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 303) at para. 55. 310 unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ (n 305) at para. 18. 311 unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ (n 305) 5 mn 17. 312 unhcr, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​g ip/​09/​08, 22 December 2009) at para. 35.

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a denial of the right to education or an adequate standard of living may lead to a heightened risk of other forms of harm, including violence and abuse’.313 A trend can also be discerned from state practice in relation to what has been recognised as amounting to ‘serious harm’. First of all, in relation to the risk of murder, it has generally been recognised in the jurisprudence of Australia, Canada, New Zealand, the UK and the US that this constitutes persecution.314 Secondly, torture or inhuman and degrading treatment is recognised as amounting to persecution, so that ‘the only task facing a decision-​maker in a relevant case is to determine whether the facts found bespeak the risk of a form of prohibited conduct’.315 For instance, rape and sexual violence are recognised as constituting ‘serious harm’,316 and so are forced sterilization and forced abortion.317 Deprivation of liberty in the context of abuse or violence or otherwise arbitrary 313 unhcr, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees (n 312) at para. 14. 314 See for instance for Australia Minister for Immigration and Citizenship v SZCWF [2007] fcafc 155 (Federal Court of Australia) concerning a blood feud; for New Zealand Refugee Appeal No 2039/​93 Re MN (New Zealand rsaa) concerning honour killing; Chan v Canada (Minister for Employment and Immigration) [1995] 3 scr 593 (Supreme Court of Canada) at 635 (La Forest J); for the US Mikhailevitch v Immigration and Naturalization Service (1998) 146 F. 3d 384 (US Court of Appeals for the Sixth Circuit) at para. 7 stating that persecution must be ‘more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty’; in the UK the courts apply the UK Qualification Directive threshold, which includes threats to life, see Raza Husain, ‘International Human Rights and Refugee Law: The United Kingdom’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​ Martinus Nijhoff Publishers 2016) 145; and see generally e.g. Horvath v Secretary of State for the Home Department [2001] 1 ac 489 (UK House of Lords) stating that serious harm certainly includes at a minimum a violation of the non-​derogable rights. 315 Hathaway and Foster (n 13) 211. 316 See for instance for the US In Re D-​V-​Interim Decision 3252, 25 May 1993 (US Board of Immigration Appeals); Shoafera v Immigration and Naturalization Service (2000) 228 F.3d 1070 (US Court of Appeals for the 9th Circuit); Zubeda v Attorney General (2003) 333 F.3d 463 (US Court of Appeals for the Third Circuit); for Canada Adjibi v Canada (Minister of Citizenship and Immigration) [2002] 219 ftr 54 (Federal Court of Canada); Abebe v Commonwealth of Australia (1999) 197 clr 510 (High Court of Australia), all cited in Hathaway and Foster (n 10) 213 fn 174–​175. 317 See for instance for Australia Applicant A v Minister for Immigration and Ethnic Affairs (n 216); for Canada Chan v Canada (Minister for Employment and Immigration) (n 314); for New Zealand ba (China) [2013] nzipt 800429 (New Zealand ipt); for the UK ax ( family planning scheme) China cg [2012] ukut 00097 (iac) (UK Upper Tribunal (Immigration and Asylum Chamber)); for the US Lidan Ding v Ashcroft (2004) 387 F.3d 1131 (US Court of Appeals for the Ninth Circuit).

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conditions is also recognised as amounting to serious harm.318 In New Zealand decision-​makers initially considered the right to liberty and arbitrary detention as a matter of a lower class of less fundamental rights.319 However, more recently such a hierarchical approach has been abandoned in favour of a new approach, which considers instead the scope, nature, legality and impact of an interference with human rights.320 Domestic violence or violence at the hands of family relatives321 also constitutes ‘serious harm’.322 The violation of socio-​economic rights has also been accepted as ‘serious harm’ in individual cases. This, however, regularly depends on the seriousness of the consequences of such a violation. In New Zealand, a hierarchical approach to the relevance of human rights for the determination of ‘serious harm’ has expressly been abolished, instead favouring a minimum core obligations approach in the context of socio-​economic rights.323 This new approach accepts violations of both iccpr and icescr as equally capable of amounting to 318 For Australia see for instance Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 fcr 28 (Federal Court of Australia); SZTEQ v Minister for Immigration and Border Protection [2015] fcafc 39 (Federal Court of Australia); for Canada see Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 fc 589 (Federal Court of Canada); for the US see Ndom v Ashcroft (2004) 384 F.3d 743 (United States Court of Appeals for the Ninth Circuit) 752 concerning two detentions for a total of 25 days in ‘dark, crowded cells without formal charges’, ‘shackled in cuffs that prevented him from straightening his legs’ and ‘forced to urinate in his clothes’ and threats; Kalubi v Ashcroft (2004) 364 F.3d 1134 (United States Court of Appeals for the Ninth Circuit) 1136 imprisonment in a ‘over-​crowded jail cell with harsh, unsanitary and life-​threatening conditions’, both cited in Tchoukhrova et al v Gonzalez (n 56) at para. 11 stating that ‘involuntary detentions under harsh conditions can constitute persecution’. 319 Refugee Appeal No 1039/​93 Re HBS and LBY (New Zealand rsaa). 320 ds (Iran) [2016] nzipt 800788 (New Zealand ipt); for a discussion of this see Bruce Burson, ‘Give Way to the Right:  The Evolving Use of Human Rights in New Zealand Refugee Status Determination’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 36. 321 For a definition of domestic violence see e.g. the Council of Europe Convention on preventing and combating violence against women and domestic violence, Council of Europe Treaty Series No. 210, Art. 3(b) which provides: domestic violence shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim. 322 See for instance for Australia Minister for Immigration and Multicultural Affairs v Khawar (n 222); for New Zealand see Refugee Appeal No 76044 [2008] nzar 719 (New Zealand rsaa); for the UK see Islam v SSHD; R v IAT, ex p. Shah (n 13); for the US see Matter of A-​R-​ C-​G-​ et al, Respondents (2014) 26 I & N Dec. 388 (US Board of Immigration Appeals). 323 bg (Fiji) *Precedent* [2012] nzipt 800091 (New Zealand ipt) at paras. 90 et seq; Refugee Appeal No 75221 [2005] nzrsaa 289 (New Zealand rsaa) at paras. 102–​105.

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persecution.324 Persecution includes discriminatory denial of housing and employment together with segregation in health care and education.325 According to the rsaa the core minimum of socio-​economic rights depends on their ‘enabling character’: ‘The minimum level of enjoyment is to be evaluated by whether the particular manifestation of the right enables the individual to live with a basic level of security and dignity his or her common human condition demands’.326 For instance, in the context of the right to health care, the rsaa held that it does not amount to a ‘right to be healthy’.327 Rather, it requires as a core minimum the ‘availability of adequate levels of functioning health and health care facilities in the state; physical accessibility of everyone, particularly marginalized or vulnerable groups without discrimination to these facilities; affordability and cultural appropriateness of health services’.328 In Australia, s. 5J(5) Migration Act now defines persecution as a threat to the person’s life or liberty, significant physical harassment of the person, significant physical ill-​treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist, denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. This definition applies for applications made after 16 December 2014. However, previously, an almost identical definition applied in s. 91R(2) Migration Act. In this context, it has been accepted that economic harm can constitute serious harm, where the applicant is unable to take action to redress that harm without threat to her life or liberty because of the involvement of state authorities in the infliction of the harm.329 For instance, the confiscation of a farmer’s land without compensation was found to amount to serious harm cumulatively with other harms.330 The High Court of Australia has more generally defined persecution as ‘unjustifiable and discriminatory conduct 3 24 325 326 327 328 329

Burson (n 320) 36, referring to Refugee Appeal No. 75221 (n 323) at para. 81. Refugee Appeal No 75829 [2007] nzrsaa 13 (New Zealand rsaa) at paras. 158–​159. Refugee Appeal No. 75221 (n 323) at para. 105. Refugee Appeal No. 75221 (n 323) at para. 98. Refugee Appeal No. 75221 (n 323) at para. 98. szguw v Minister for Immigration & Citizenship [2008] fca 91 (Federal Court of Australia) at para. 62, relying on Minister for Immigration and Multicultural Affairs v Khawar (n 222) at paras. 79–​80. 330 SZGUW v Minister for Immigration and Citizenship [2009] fca 321 (Federal Court of Australia) at para. 20 remitting the case to the rrt for the third time because of the failure to consider this as potentially amounting to serious harm in the individual case; SZGUW v Minister for Immigration & Citizenship (n 329) at paras. 53, 57, 62 considering that the confiscation of the farmer’s land had to be considered cumulatively with other harms, such as the demolition of his house and other threats.

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directed at an individual or group for a Convention reason; which constitutes an interference with the basic human rights or dignity of that person or the persons in the group; which the country of nationality authorises or does not stop, and; which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned’.331 Serious harm includes the denial of ‘access to food, shelter, medical treatment and, in the case of children, education’.332 A fundamental violation approach has been adopted in Canada, where courts have defined persecution as the question whether the harm feared occurs with repetition and persistence, or in a systematic way. The Canadian Supreme Court held that ‘[t]‌he essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way’.333 La Forest J held in Chan that the ‘essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way’.334 Persecution is distinguished from discrimination by the degree of the seriousness of the harm.335 The Federal Court of Canada has further held that ‘[d]iscriminatory acts may constitute persecution if they are sufficiently serious and occur over such a long period of time that it can be said that the claimant’s physical or moral integrity is threatened’.336 Thus, a person may be the victim of persecution if, because of a Convention ground, he or she is prevented from continuing his or her education.337 The US courts have also accepted economic harm as persecution, holding that ‘[g]‌overnment sanctions that reduce an applicant to an impoverished existence may amount to persecution even if the victim retains the ability to afford the bare essentials of life’.338 In the US, it has been found that the 3 31 Minister for Immigration v Haji Ibrahim (2000) 204 clr 1 (hca) at para. 65 (McHugh J). 332 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 alr 553 (High Court of Australia) at para. 29. 333 Chan v Canada (Minister for Employment and Immigration) (n 314) at 635 (La Forest J). 334 Chan v Canada (Minister for Employment and Immigration) (n 314) at 635. 335 Cheung v Canada (Minister of Employment and Immigration) [1993] 2 fc 314. 336 Soto v Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1033 (Federal Court of Canada) at para. 12; nk v Canada (Solicitor General) [1995] F.C.J. No. 889 (Federal Court of Canada) at para. 21; Dena Hernandez v Canada (Citizenship and Immigration) (n 181) at para. 40. 337 Dena Hernandez v Canada (Citizenship and Immigration) (n 181) at para. 40. 338 Matter of T-​Z-​ (2007) 24 I. & N. Dec. 163, (US Board of Immigration Appeals) 174 also stating that ‘particularly onerous fine, a large-​scale confiscation of property, or a sweeping limitation of opportunities to continue to work in an established profession or business’ may amount to serious harm, at 173, cited in Deborah Anker and Josh Vittor,

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seizure of property and the loss of housing,339 the denial of employment,340 health care341 and education342 all amount to persecution. Anker and Vittor note, however, that socio-​economic harms are ‘often evaluated cumulatively or in combination with physical or other forms of abuse so that the persecutory harm consists in the totality of the mistreatment’.343 In the UK, persecution has been defined as the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to the repression or extirpation of it.344 In addition, the UK courts have also stressed the substitute

339

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341 342

3 43 344

‘International Human Rights and US Refugee Law:  Synergies and Contradictions’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​ Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 132 who also state that ‘US courts have been most likely to find that the harm rises to the level of persecution when the economic harms are cumulative and perpetrated by a State agent’. Vincent v Holder (2011) 632 F.3d 351 (US Court of Appeals for the Sixth Circuit) 356 concerning the loss of housing because the home had been set on fire by rebels; Fei Mei Cheng v Attorney General of US (2010) 623 F.3d 175 (US Court of Appeals for the Third Circuit) 195 concerning the seizure of the property that was the exclusive source of the family’s livelihood, both cited in Anker and Vittor (n 338) 133–​134; Levitskaya v Immigration and Naturalization Service (2002) 43 Fed. Appx. 38 (US Court of Appeals for the Ninth Circuit) concerning overcrowded housing, denial of education and freedom of religion, cited in Foster (n 219) 106 fn 80. Li v Attorney General (2005) 400 F.3d 157 (US Court of Appeals for the Third Circuit) 169 concerning blacklisting from government and most other forms of legitimate employment in conjunction with other forms of harm; Kadri v Mukasey (2008) 543 F.3d 16 (US Court of Appeals for the First Circuit) 21–​22 where the fact that the applicant would not be able to work as a medical doctor, his chosen profession, amounted to persecution, both cited in Anker and Vittor (n 338) 133–​134. Tchoukhrova et al v Gonzalez (n 56); ‘ins Grants Asylum to Autistic Child Persecuted Due To Disability’ (2001) 78 Interpreter Releases 604, cited in Anker and Vittor (n 338)  135; Hathaway and Foster (n 13) 236. Chen v Holder (2010) 604 F.3d 324 (US Court of Appeals for the Seventh Circuit) 328 concerning the denial of the right to state-​provided elementary education and higher education cumulatively; Zhang v Gonzales (2005) 408 F.3d 1239 (US Court of Appeals for the Ninth Circuit) 1247 finding that the denial of access to educational opportunities available to others ‘can constitute persecution’; however, see Vicente-​Elias v Mukasey (2008) 532 F.3d 1086 (US Court of Appeals for the Tenth Circuit) 1091 where racial discrimination due to language ability in education and employment did not constitute persecution; all cited in Anker and Vittor (n 338) 135. Anker and Vittor (n 338) 136. Sepet and Bulbul v Secretary of State for the Home Department [2003] 1 wlr 856 (UK House of Lords) at para. 7 (Lord Bingham); approved in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2011] 1 ac 596 (UK Supreme Court) at para. 12 (Lord Hope).

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or surrogate nature of refugee protection.345 In K and Fornah, Lord Bingham held that it is ‘well established that the Convention must be interpreted in accordance with its broad humanitarian objective having regard to the principles, expressed in the preamble, that human beings should enjoy fundamental rights and freedoms without discrimination’.346 Lord Rodger stressed in hj (Iran) that the surrogate human rights protection afforded by the Convention means that people are able to live openly and free from fear of persecution because ‘they are, say, black, or the descendants of some former dictator, or gay’.347 Persecution has for instance been interpreted as including the discriminatory denial of access to food aid.348 Generally, the EU Qualification Directive definition of serious harm349 has been implemented into domestic law in The Refugee or Person in Need of International Protection (Qualification) Regulations 2006.350 The EU Recast Qualification Directive sets as a benchmark for persecution the violation of non-​derogable ‘fundamental rights’ but also recognises other human rights violations as amounting to persecution, where these impact similarly on the individual. Art. 9(1)(a) and (b) of the EU Qualification Directive provides that in order to amount to persecution an act must: (a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

345 Horvath v Secretary of State for the Home Department [2000] inlr 15 (UK Court of Appeal) (Lord Hope); Ullah, R (oao) v Special Adjudicator [2004] 3 All ER 785 (UK House of Lords); Sepet and Bulbul v Secretary of State for the Home Department (n 344)  at para. 7 (Lord Bingham); HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department (n 344) at para. 52 (Lord Rodger). 346 K and Fornah v Secretary of State for the Home Department [2007] 1 ac 412 (hl) (House of Lords) at para. 10. 347 HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department (n 344) at para. 53, the case concerned two gay asylum seekers, one from Iran and one from Cameroon. 348 rn (Returnees) Zimbabwe cg [2008] ukait 00083 (UK Asylum and Immigration Tribunal) at para. 249 stating that ‘discriminatory exclusion from access to food aid is capable itself of constituting persecution’. 349 Council Directive 2004/​ 83/​ EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted, Art. 9. 350 See in particular Reg. 5 on acts of persecution transposing Art. 9 Qualification Directive .

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(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a). In accordance with Art. 9(2) Recast Qualification Directive such measures can take the form of acts of physical or mental violence, including acts of sexual violence, legal, administrative, police, and/​or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner, prosecution or punishment which is disproportionate or discriminatory, denial of judicial redress resulting in a disproportionate or discriminatory punishment, prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling within the scope of the grounds for exclusion as set out in Article 12(2), acts of a gender-​specific or child-​specific nature. The absence of a reference to disability in the context of qualification as a refugee stands in stark contrast to the visibility of applicants who are traumatised, and to gender and child-​specific claims.351 This has been found to be due to a lack of lobbying on the part of the disability movement in the context of the EU asylum recast process.352 It is particularly striking that no reference was made to persons with disabilities in the Recast Qualification Directive, since the EU acceded to the crpd as the first international human rights treaty by Council Decision on 26 November 2009.353 The crpd entered into force for the EU on 22 January 2011. However, the elements defining acts of persecution in Art. 9 of the Directive are sufficiently open-​ended to allow for a disability-​specific interpretation in line with the EU’s obligations under the crpd. I have discussed the fact that the Recast Qualification Directive

351 See Art. 9(2)(f) concerning gender-​or child-​specific acts of persecution and Art. 4(3) (c) according to which the individual position and personal circumstances of the applicant has to be taken into account, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm Zimmermann and Mahler (n 13) 348 mn 227 note that this ‘recognizes the unique and different character and personality of every human being and underlines the fact that identical human rights might have different effects on different persons’. 352 Clara Straimer, ‘Vulnerable or Invisible? Asylum Seekers with Disabilities in Europe’ (University of Oxford 2010) unhcr, New Issues in Refugee Research, Research Paper No 194 10 . 353 Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/​48/​EC) OJ L23/​35.

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has to be interpreted in a way, which is compatible with the crpd, in detail elsewhere.354 This overview of state practice and of unhcr’s practice reveals that the violation of certain fundamental rights is generally accepted as persecution, such as threats to life, liberty and to the person, as well as torture and inhuman and degrading treatment. In addition, the violation of other fundamental human rights, for instance non-​derogable rights, has also been accepted as persecution. However, in particular in the context of socio-​economic rights and instances of cumulative discrimination, the approaches of the different jurisdictions diverge somewhat, with certain jurisdictions adopting a minimum core obligations approach (New Zealand) and others following unhcr’s early approach in its Handbook, allowing for severe economic hardship, denials of education or a livelihood as amounting to serious harm (particularly Canada, Australia and the US). Yet, as has been argued above, the strict distinction between civil and political rights on the one hand and socio-​economic rights on the other makes limited sense in practice. Many situations involve a combination of both rights. This is particularly true for human rights under the crpd as is shown below. Therefore, the approach expounded by Hathaway and Foster in the second edition of The Law of Refugee Status is the one that is most in conformity with a disability-​specific approach to persecution. At the same time, it is important to stress that an approach which accepts that every human rights violation may amount to ‘serious harm’ is less revolutionary than it might seem. Many aspects of socio-​economic rights are subject to progressive realization and a failure to implement them perfectly does not in fact amount to a violation at all (see also Chapter iv on the failure of state protection and the duty of progressive realization). The next subchapter will consider the international human rights standards and particularly the crpd pertinent to the situations set out in subchapter iii.B. This will demonstrate how the Hathaway and Foster approach would be applied in practice to cases of persons with disabilities. It will show which situations might involve a violation of human rights and thus amount to persecution. The international human rights standards will be set out in some detail. This is necessary as there is a considerable disjoint between what is today accepted as treatment contrary to the most fundamental human rights norms, such as the prohibition of torture and inhuman or degrading treatment, and what asylum decision-​makers accept as amounting to ‘serious harm’. 354 Motz (n 200) 172–​184.

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Interpretation according to Art. 32 vclt (International Human Rights Standards) 5.1 Introduction As has been explained in Chapter ii of this book, an evolutionary approach to the refugee definition takes account of international human rights norms prevailing at the time of interpretation. In particular, a vclt-​compliant interpretation of the open-​ended term ‘being persecuted’ in Art. 1A(2) Refugee Convention in cases of persons with disabilities also takes account of international human rights norms and particularly the cprd. While different human rights approaches exist, as outlined above, all of them presuppose an analysis of the question which human rights are actually at stake and may be violated in a particular situation. It is also noteworthy that the crpd Committee has confirmed in its decision in O.O.J. v. Sweden that violations under the crpd may be pertinent to removal in asylum cases stating that ‘the removal by a State party of an individual to a jurisdiction where he or she would risk facing violations of the Convention may, under certain circumstances, engage the responsibility of the removing State under the Convention’.355 The human rights issues specifically addressed in the crpd include involuntary detention and institutionalisation, the right to life, including the withholding of care and food and life-​saving treatment, forced sterilisations, the lack of a formal education, the lack of employment prospects, issues of physical access, such as inaccessible public transport, access to information, right to vote and stand for office,356 access to health services and access to sex education, declaration of legal incompetence and guardianship systems (with their substituted rather than supported decision-​making).357 As part of the general principles, the crpd further declares respect for the inherent dignity, individual autonomy, non-​discrimination, full and effective participation and inclusion in society, respect for difference, equality of opportunity and accessibility of disabled persons (Art. 3 crpd). While several of the articles in the crpd may appear to be newly created rights and have been described as such in some places,358 this book adopts the 5

355

OOJ and Others v Sweden un Doc crpd/​c /​18/​d /​28/​2015, 18 August 2017 (crpd Committee) at para. 10.3. 356 This has been assessed by the crpd Committee in relation to persons with intellectual disabilities in Zsolt Bujdosó and five others v Hungary un Doc crpd/​c /​10/​d /​4/​2011, 20 September 2013 (crpd Committee) finding violations of Arts. 12 and 29 crpd. 357 Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse Journal of International Law and Commerce 563, 566–​571. 3 58 Kälin and Künzli (n 290)  356 concerning the rights to accessibility, to personal mobility and to live independently and be included in the community; Frédéric Megret, ‘The

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alternative view, namely that these are not new rights in themselves, but rather very detailed articulations of existing rights which set out the precise measures that need to be taken so that persons with disabilities are equally able to enjoy the existing rights in international human rights law.359 As such, they amount to no more than disability-​specific formulations of existing human rights, to a ‘disability-​sensitive articulation and clarification’ of the human rights contained in existing UN human rights treaties.360 For instance, the right to freedom of expression is rendered meaningless if someone does not have access to information due to her blindness, or is not provided with means to express herself because she is mute. The situation of persons with disabilities has been addressed by different UN treaties and experts, including the crpd Committee, the crc Committee, the UN Special Rapporteur on Torture and cidtp, the UN Special Rapporteur on Health, the cescr Committee and the Human Rights Council. The standards enunciated by these bodies and experts will be set out in this subchapter. At the same time, this subchapter will focus on the most salient aspects in international human rights law, which are pertinent to the persecution of persons with disabilities. Of course, every single right under the crpd is potentially relevant to a refugee claim of a person with disabilities. The cases discussed above in subchapter iii.B indicate however that some rights are particularly relevant in practice. The following therefore addresses the situations set out in subchapter iii.B above, assessing them in light of the crpd.

Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 20 Human Rights Quarterly 494, 498 argues that this is an oversimplification as the crpd has a multilayered normative reality. 359 The crpd states that for instance the right to accessibility is ‘deeply rooted within international human rights law’ crpd Committee, ‘General Comment No. 5 (2017) on Living Independently and Being Included in the Community’ un Doc crpd/​c /​g c/​5, 27 October 2017 at para. 9. 360 Anna Lawson, ‘The UN Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 107; Michael Ashley Stein and Janet E Lord, ‘Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 30 noting in fn 111 that this was continuously echoed during the negotiations of the crpd; see also Oddny Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 44.

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5.2 Extrajudicial Killings and Ritual Murders Art. 10 crpd guarantees the right to life of persons with disabilities on an equal basis with others. This serves to highlight that the lives of persons with disabilities possess ‘the same value as those of any other human being’.361 In the case of extrajudicial killings and ritual murders of persons with disabilities, states are under an obligation in accordance with Art. 10 crpd (as well as Art. 6 iccpr) to take measures to protect persons with disabilities from ritual murders and prevent further incidents.362 In addition, such murders must be investigated by the state in an attempt to bring the perpetrators to justice.363 The right to life is recognised as being ‘basic to all human rights’.364 It is clear that ritual murders constitute a very serious violation of the core of the right to life. 5.3 Forced Institutionalisation and Forced Treatment The crpd outlaws any detention that is based on disability. Art. 14(1)(b) crpd provides that ‘the existence of a disability shall in no case justify a deprivation of liberty’.365 For persons with disabilities enjoy the right to liberty and security of the person on an equal basis with others (Art. 14(1)(a) crpd). In addition, Art. 14(1)(b) provides that persons with disabilities must not be ‘deprived of their liberty unlawfully or arbitrarily’, and any deprivation of liberty must be ‘in conformity with the law’. Furthermore, Art. 14(2) crpd states: States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.

361 Smitha Nizar, ‘Article 10: Right to Life’ in Bantekas, Ilias, Stein, Michael A. and Anastasiou, Dimitris (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) 287. 362 Giovanni C Bruno, ‘Article 10 [Right to Life]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 248. 363 Bruno (n 362) 248. 364 UN Human Rights Council, ‘ccpr General Comment No. 14:  Article 6 (Right to Life) Nuclear Weapons and the Right to Life’ 9 November 1984 at para. 1. 365 Similarly, the UN Working Group on Arbitrary Detention has stated that detention, even if authorized by law, which is based on discriminatory grounds is always arbitrary, see UN Human Rights Council, ‘Report of the Working Group on Arbitrary Detention’ un Doc a/​ hrc/​22/​44, 24 December 2012 at para. 63.

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Art. 14 crpd has been described as ‘essentially a non-​discrimination provision’ prohibiting deprivation of liberty on the basis of disability alone, so that persons ‘who represent a legitimate threat to someone else should be treated as any other person would be’.366 The prohibition of detention on the basis of disability has also found recognition in the European Court of Human Rights’ case law.367 Art. 14 crpd is of particular importance for persons with intellectual and psychosocial disabilities, who require a wide range of support in order to exercise their legal capacity and live in the community.368 While involuntary institutionalisation is thus permissible in principle, it must be non-​ discriminatory on the grounds of disability (see also Arts. 2 and 5 crpd).369 This includes detention which is based on an alleged danger of persons with disabilities to themselves or others, when ‘based on mere presumptions of risk or dangerousness tied to disability labels’.370 In addition, the crpd Committee has stressed that the use of additional factors, such as being a danger to self or others, may still fall within the prohibition under Art. 14 crpd, when these factors disproportionately affect persons with disabilities.371 The UN Special 366 crpd Committee, ‘Report of the crpd Committee on Its Twelfth Session (15 September-​3 October 2014)’ un Doc crpd/​c /​12/​2, 5 November 2014 Annex iv; see also Seventh Session of the Ad Hoc Committee, ‘Daily Summary of Discussion at the Seventh Session’ (19 January 2006) . 367 See in particular Kuttner v Austria app no 7997/​08 (echr). 368 Michael Perlin and Eva Szeli, ‘Article 14: Liberty and Security of the Person’ in Michael A Stein, Ilias Bantekas and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) 407; Francesco Seatzu, ‘Article 14 [Liberty and Security of Person]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 297. 369 Seatzu (n 368)  299–​300; the approach under the crpd contrasts somewhat with the ECtHR’s approach, see Bureš v The Czech Republic app no 37679/​08 (ECtHR, 18 October 2012) at para. 83 demonstrating that the ECtHR goes relatively far towards recognising that forced medical treatment and institutionalisation is not compatible with the right to private life in Art. 8 echr and may additionally constitute inhuman and degrading treatment. Yet, it still permits the use of physical restraints as a measure of last resort; in X v Finland app no 34806/​04 (ECtHR, 3 July 2012) the ECtHR further held that the law in itself did not satisfy the requirements of Art. 8 echr in that the interference with Art. 8 echr of the forced institutionalisation was found not to be ‘in accordance with the law’. 370 Perlin and Szeli (n 368) 410. 371 UN General Assembly, ‘Report of the Committee on the Rights of Persons with Disabilities, Annex:  Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The Right to Liberty and Security of Persons with Disabilities’ un Doc A/​72/​ 55, 2016 at para. 6; see also UN Human Rights Council, ‘Report of the Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas Aguilar’ un Doc a/​h rc/​40/​ 54, 11 January 2019 at para. 47.

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Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas Aguilar, has noted that ‘[s]‌tigma often lies at the root of the various forms of deprivation of liberty experienced by persons with disabilities’.372 On the one hand, this is because of the predominant view that they require specialised care, on the other, there is a ‘baseless belief’ that persons with psychosocial disabilities are prone to violence.373 There is no internationally agreed notion of involuntary placement.374 However, there are certain common elements, which define institutionalisation:  isolation and segregation from community life, lack of control over day-​to-​day decisions, rigidity of routine, irrespective of personal preferences or needs, identical activities in the same place for a group of persons under a central authority, a paternalistic approach in the provision of services, and supervision of living arrangements without consent.375 Involuntary institutionalisation violates the crpd in a number of respects. In particular, it fails to guarantee legal capacity, the right to liberty and security, and freedom from torture and ill-​treatment.376 Concerning torture or ill-​treatment, involuntary institutionalisation particularly violates this prohibition, where ‘arbitrary or unlawful deprivation of liberty based on the existence of a disability’ inflicts severe pain or suffering on the individual. According to the UN Secretary-​General, whether the pain inflicted by involuntary institutionalisation amounts to torture or ill-​treatment depends on ‘the length of institutionalization, the conditions of detention and the treatment inflicted’.377 The former UN Special Rapporteur on Torture, Juan Méndez, has further specified that ‘[i]‌nappropriate or unnecessary 372 UN Human Rights Council, ‘Report of the Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas Aguilar’ (n 371) at para. 26. 373 UN Human Rights Council, ‘Report of the Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas Aguilar’ (n 371) at paras. 26–​27. 374 Seatzu (n 368)  298, referring to the crpd Committee, Concluding Observations on the Initial Report of Tunisia (un Doc crpd/​c /​t un/​c o/​1, 13 May 2011) at para. 25 in which the crpd Committee asked Tunisia to abolish legislation permitting the institutionalization of persons with disabilities; see also crpd Committee, Concluding Observations on the Initial Report of Spain (un Doc crpd/​c /​e sp/​c o/​1, 19 October 2011) at para. 36. 375 Giuseppe Palmisano, ‘Article 19 [Living Independently and Being Included in the Community]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 365. 376 Human Rights Watch (n 31) 13–​15. 377 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ un Doc A/​63/​ 175, 28 July 2008 at para. 65.

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non-​consensual institutionalization of individuals may amount to torture or ill-​treatment as use of force beyond that which is strictly necessary’.378 Moreover, due to the stigma attached to psychosocial disabilities, such persons are often physically and socially isolated with no one to help them.379 In addition to the deprivation of liberty, involuntary institutionalisation often goes hand in hand with further forms of inhuman or degrading treatment, such as violence and sexual abuse at the hands of employees or fellow detainees, cage beds, restraints, seclusion, forced medication or electroconvulsive therapy.380 The crpd includes a disability-​specific prohibition of torture and cruel, inhuman or degrading treatment or punishment (‘cidtp’) in Art. 15 crpd, which provides that ‘[n]‌o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation’. While the prohibition is not different from that enshrined in Art. 7 iccpr,381 it has been included in the crpd, as torture and cidtp are particularly prevalent practices in the context of institutionalised persons with disabilities.382 In addition, institutionalisation raises issues of legal capacity and personal integrity, further discussed below.383

378 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 70. 379 Human Rights Watch (n 31) 35. 380 See for instance the various methods of restraint, seclusion, forced medication and cage beds detailed in the report Mental Disability Advocacy Center, ‘Cage Beds and Coercion in Czech Psychiatric Institutions’ mdac, 2014  . 381 For an application of Art. 15 crpd to the case of a hearing impaired man who was detained and tortured by the Saudi Arabian authorities, as a result of which he completely lost his hearing on one ear, see Al Adam v Saudi Arabia un Doc crpd/​c /​20/​d /​38/​2016, 20 September 2018 (crpd Committee). 382 Antonio Marchesi, ‘Article 15 [Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 309; see also Brynhildur G Flóvenz, ‘The Implementation of the UN Convention and the Development of Economical and Social Rights as Human Rights’, The UN Convention on the Rights of Persons with Disabilities:  European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 268–​269. 383 Mary Keys, ‘Article 17 [Protecting the Integrity of the Person]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities:  A Commentary (Springer 2017)  333, referring e.g. to crpd Committee, Concluding Observations on the Initial Report of Germany (13 May 2015); crpd Committee, Concluding Observations on the Initial Report of Croatia (un Doc crpd/​c /​ hrv/​c o/​1, 15 May 2015); crpd Committee, Concluding Observations on the Initial Report

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The then UN Special Rapporteur on Torture, Manfred Nowak, summarized the issues of ill-​treatment in institutionalisation settings in his Interim Report on Torture and cidtp already in 2008:384 Poor conditions in institutions are often coupled with severe forms of restraint and seclusion. Children and adults with disabilities may be tied to their beds, cribs or chairs for prolonged periods, including with chains and handcuffs; they may be locked in “cage” or “net beds” and may be overmedicated as a form of chemical restraint. It is important to note that “prolonged use of restraint can lead to muscle atrophy, life-​threatening deformities and even organ failure”, and exacerbates psychological damage. The Special Rapporteur notes that there can be no therapeutic justification for the prolonged use of restraints, which may amount to torture or ill-​treatment. Furthermore, the UN Special Rapporteur stressed that persons with disabilities are ‘frequently subjected to neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence’.385 He further expressed his concern that such practices were perpetrated both in public and in private institutions but remained invisible and are still not recognised as torture or ill-​ treatment.386 He emphasized the need to reframe violence and abuse perpetrated against persons with disabilities as torture or a form of ill-​treatment.387 Indeed, various forms of restraint and seclusion used in institutionalised settings can amount to torture or cruel, inhuman or degrading treatment. For instance, persons with disabilities are still sometimes put in so-​called cage beds. Cage beds have been described as a ‘barbaric means of confinement and restraint for adults and children used within many mental health and social

384 385 386 387

of the Cook Islands (15 May 2015); and crpd Committee, Concluding Observations on the Initial Report of the Czech Republic (un Doc crpd/​c /​c ze/​c o/​1, 15 May 2015). UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 55. UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377) 2. UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377) 2. UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377) 2 and para 45.

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institutions’.388 The UN Special Rapporteur for Torture has stressed that the European Committee for the Prevention of Torture, the UN Committee against Torture, and the UN Human Rights Committee have all found that the confinement to cage beds constitutes ill-​treatment and have called for them to be banned’.389 The UN Secretary-​General has further observed that torture may arise in these situations as torture frequently involves a ‘situation of powerlessness’, in which persons with disabilities ‘often find themselves […], for instance when they are deprived of their liberty in prisons or other places, or when they are under the control of their caregivers or legal guardians’, it often being external circumstances which render them powerless, ‘such as when one’s exercise of decision-​making and legal capacity is taken away by discriminatory laws or practices and given to others’.390 The definition of torture presupposes a situation of powerlessness, ‘whereby the victim is under total control of another person’.391 Under Art. 1 cat torture includes the following four elements: ‘severe pain or suffering, intent, purpose and State involvement’.392 The level of suffering or pain is relative in nature and depends on all the individual circumstances of the case, including the existence of a disability.393 The UN Special Rapporteur on Torture has stressed that it is essential that an absolute ban on all coercive and non-​consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions.394 The environment of patient powerlessness and 388 Mental Disability Advocacy Center, ‘End Cage Beds’ . 389 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 14. 390 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 50. 391 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 50. 392 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377) para 46 and see Art. 1 cat. 393 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 47. 394 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 89(b).

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abusive treatment of persons with disabilities, in which restraint and seclusion is used, can lead to other non-​consensual treatment, such as forced medication and electroshock.395 In addition, lesser forms of treatment may also amount to torture or ill-​treatment. For instance, the use of neuroleptics or other mind-​ altering drugs may, ‘depending on the circumstances of the case, the suffering inflicted and the effects upon the individual’s health’ constitute torture or ill-​ treatment.396 Finally, where forced treatment does not amount to inhuman or degrading treatment, the denial of free and informed consent still constitutes a violation of the right to health of persons with disabilities.397 As a further element of ill-​treatment, persons with disabilities in institutions often experience ‘serious abuse and violations of their right to physical and mental integrity, notably in relation to experimentation or treatments directed to correct and alleviate particular impairments’.398 The UN Special Rapporteur on Torture noted various forms of ‘intrusive and irreversible medical treatment’ without consent, including sterilization, abortion and electroshock treatment and mind-​altering drugs, including neuroleptics.399 He distinguished between necessary medical treatment and medical treatment amounting to torture or ill-​treatment as follows:400 Whereas a fully justified medical treatment may lead to severe pain or suffering, medical treatments of an intrusive and irreversible nature, 395 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 89(b); the alleged effectiveness of ect therapy has also been thrown into serious doubt, see John Read and Richard Bentall, ‘The Effectiveness of Electroconvulsive Therapy: A Literature Review’ (2010) 19 Epidemiologia e Psichiatria Sociale 333. 396 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 63. 397 UN General Assembly, ‘Report of the Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas Aguilar’ un Doc A/​73/​161, 16 July 2019 at para. 39. 398 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 57 stating further that ‘several of the 1991 Principles may require reconsideration as running counter to the provisions of the Convention on the Rights of Persons with Disabilities’. 399 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 40. 400 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 47.

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when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, may constitute torture and ill-​treatment if enforced or administered without the free and informed consent of the person concerned. The subsequent Special Rapporteur on Torture and cidtp, Juan Méndez, further stressed:401 Forced interventions, often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment (A/​63/​175, paras. 38, 40, 41). Concern for the autonomy and dignity of persons with disabilities leads the Special Rapporteur to urge revision of domestic legislation allowing for forced interventions. He emphasised that only in ‘a life-​threatening emergency in which there is no disagreement regarding absence of legal capacity may a health-​care provider proceed without informed consent to perform a life-​saving procedure’.402 From this he concluded that ‘involuntary treatment and other psychiatric interventions in health-​care facilities are forms of torture and ill-​treatment’.403 401 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 64; see also UN General Assembly, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health’ un Doc A/​64/​272, 10 August 2009 at para. 18 observing ‘that informed consent is not mere acceptance of a medical intervention, but a voluntary and sufficiently informed decision. Guaranteeing informed consent is a fundamental feature of respecting an individual’s autonomy, self-​determination and human dignity in an appropriate continuum of voluntary health-​care services’. 402 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 66. 403 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 64; the ECtHR has recognised that forced treatment interferes with the right to individual autonomy protected under Art. 8 echr in Pretty v United Kingdom app no 2346/​02 (ECtHR, 27 July 2002) at para. 63, see also para. 61 and held that ‘the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with

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Regarding the question whether this amounts to torture, he stated in his report on abuses in healthcare settings:404 the discriminatory character of forced psychiatric interventions, when committed against persons with psychosocial disabilities, satisfies both intent and purpose required under the article 1 of the Convention against Torture, notwithstanding claims of “good intentions” by medical professionals. Regarding seclusion and other forms of solitary confinement, the UN Special Rapporteur on Torture specified that there can be ‘no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions’.405 The Special Rapporteur has addressed the issue of solitary confinement and stated that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment.406 Poor living conditions in psychiatric institutions and homes for persons with disabilities may constitute cruel, inhuman or degrading treatment.407 Poor conditions include state failure ‘to provide persons in their custody with adequate food, water, medical care and clothing, and may constitute torture and illtreatment’.408 In addition, in the context of persons with disabilities, poor conditions also include the failure to provide reasonable accommodation.409 As regards the need to provide for reasonable accommodation

404 405

406 407 408 409

a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention’. UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 32. UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 13; see also UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377) at para. 56. UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 63. UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 52. UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 52. The first decision recognising this was the one of the Human Rights Committee in Hamilton v Jamaica un Doc ccpr/​c /​66/​d /​616/​1995 (18 July 1999); the first and so far only crpd Committee decision in relation to this is X v Argentina un Doc crpd/​c /​11/​d /​8/​2012, 18 June 2014 (crpd Committee) concerning a man who had suffered injury to his cervical

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in the context of institutionalisation and detention, the Special Rapporteur emphasized:410 The lack of reasonable accommodation in detention facilities may increase the risk of exposure to neglect, violence, abuse, torture and ill-​ treatment. The overview above illustrates that the institutionalisation of persons with disabilities is often directly linked to forms of restraint, seclusion, forced treatment or living conditions which amount to inhuman or degrading treatment or even torture and are clearly prohibited under the crpd, cat and the iccpr. However, where institutionalisation does not involve any such form of ill-​ treatment and is a non-​discriminatory, but involuntary deprivation of liberty, the question still arises whether this is also a violation of the crpd. The right to liberty of persons with disabilities in Art. 14 crpd is a typical civil and political right, which is closely linked to the right to live independently and be included in the community, which has important socio-​economic components. In fact, the right to live independently and be included in the community in Art. 19 crpd can be seen as the socio-​economic flipside of the right to liberty in Art. 14 crpd. This is perhaps the most obvious illustration of the fact that civil and political rights and socio-​economic rights are interdependent and interrelated. While a person with disabilities has a civil and political right to liberty, her life in the community will likely require the investment of financial resources in community-​based mental health care programs and other programs of support and assistance. The right to independent living in Art. 19 crpd ‘reflects the essence’ of the crpd, as it articulates the shift away from viewing persons with disabilities ‘as objects of pity, to be managed or taken care of, towards treating them as human subjects and “equal citizens” ’.411 Art. 19 crpd provides:

spine after a traffic accident and had received an implanted disk which had shifted and required rehabilitation. While the Committee did not find his imprisonment in violation of the crpd, the state had failed to provide him with reasonable accommodation in prison in violation of Arts. 9, 14 and 17 crpd; on violation of Art. 14 and 15 crpd because of the indefinite detention of an intellectually disabled person unfit to stand trial, who suffered violence and abuse in detention, see Noble v Australia un Doc crpd/​c /​16/​d /​7/​ 2012, 2 September 2016 (crpd Committee). 410 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377) para 38. 4 11 Palmisano (n 375) 354.

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Article 19 –​Living independently and being included in the community States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-​home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. The core content of Art. 19 crpd includes the right to live in the community and to live independently in the sense of personal autonomy, freedom to make choices concerning one’s own life, and control over one’s own life and decisions.412 The crpd Committee has observed:413 Article 19 reflects the diversity of cultural approaches to human living and ensures that its content is not biased towards certain cultural norms and values. Living independently and being included in the community is a basic concept of human living around the globe and is applied to the context of disability. It means exercising freedom of choice and control over decisions affecting one’s life with the maximum level of self-​ determination and interdependence within society. But beyond mere living in the community, the core content also includes a right to be fully included and to participate in the community.414 It is a clear implication of Art. 19 crpd that forced institutionalisation is prohibited.415 4 12 Palmisano (n 375) 359. 413 crpd Committee, ‘General Comment No. 5 (2017) on Living Independently and Being Included in the Community’ (n 359) at para. 8. 414 Palmisano (n 375) 360. 415 Palmisano (n 375) 365.

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Indeed, even if institutionalisation is voluntary, segregation in institutions leads to society viewing persons with disabilities ‘as different and sub-​human, and provides opportunities for denial of medical care and many other forms of abuse’.416 As the former Council of Europe Commissioner for Human Rights, Thomas Hammarberg, stressed, Art. 19 crpd ‘embodies a positive philosophy, which is about enabling people to live their lives to their fullest, within society’.417 He continued:418 The core of the right, which is not covered by the sum of the other rights, is about neutralizing the devastating isolation and loss of control over one’s life, wrought on people with disabilities because of their need for support against the background of an inaccessible society. ‘Neutralising’ is understood as both removing the barriers to community access in housing and other domains, and providing access to individualised disability-​related supports on which enjoyment of this right depends for many individuals. States parties are under a duty to facilitate the independent living of persons with disabilities and to ‘be included in the life of the community’.419 In the context of Art. 19 crpd the right to equality and non-​discrimination requires states to ‘ensure that the specific situation of persons with disabilities is responded to’ and to take ‘adequate steps and measures to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to people with disabilities’.420 The right to live in the community also affects the right of persons with disabilities to family life (Art. 10 icescr). Inclusion in society also entails the right to participation in cultural life, recreation, leisure and sport in Art. 30 crpd and the right to participation in political and public life in Art. 29 crpd. Persons with disabilities are placed in institutions and isolated from their families, communities and wider society. These are places where ‘they often suffer under 416 Fourth session of the Ad Hoc Committee, ‘Daily Summary of Discussions Related to Article 15: Living Independently and Being Included in the Community’ 27 August 2004 (comments by Inclusion International), cited in Palmisano (n 375) 358. 417 ‘The Right of People with Disabilities to Live Independently and Be Included in the Community’ Issue Paper, Council of Europe Commissioner for Human Rights, June 2012 11; also cited in Palmisano (n 375) 360. 418 ‘The Right of People with Disabilities to Live Independently and Be Included in the Community’ (n 388) 11. 419 Palmisano (n 375) 354. 420 Palmisano (n 375) 354.

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appalling living conditions and human rights abuses’.421 The United Nations Special Rapporteur on Health has observed that:422 As a result of increased knowledge about mental disabilities and new models of community-​based services and support systems, many people with mental disabilities, once relegated to living in closed institutions, have demonstrated that they can live full and meaningful lives in the community. People once thought incapable of making decisions for themselves have shattered stereotypes by showing that they are capable of living independently if provided with appropriate legal protections and supportive services. Moreover, many people once thought permanently or inherently limited by a diagnosis of major mental illness have demonstrated that full recovery is possible. As Keys notes, the right to liberty and autonomy, a civil and political right has long dominated the debate about mental health law, without any appreciation of socio-​economic right aspects of forced institutionalisation, such as now Art. 19 crpd the right to live independently and Art. 25 the right to mental health without forced treatment. Through a shift of focus onto the socio-​ economic dimension of forced institutionalisation ‘[s]‌carce resources could then be applied to the kind of sustainable community support systems preferred by persons with mental/​emotional distress’.423 This subchapter has set out the standards under international human rights law and the crpd, which relate to forced institutionalisation and forced treatment. As has been shown, many instances of forced institutionalisation and forced treatment amount to violations of the prohibition of torture or ill-​ treatment and Arts. 14, 15, 16, 17 and 19 crpd. Thus, this situation involves both civil and political and socio-​economic rights, which are inextricably linked and cannot be considered separately. The distinction between civil and political rights and socio-​economic rights is simply not particularly helpful or instructive when it comes to the enforcement of the right to liberty of persons with disabilities.

4 21 Palmisano (n 375) 365. 422 UN Human Rights Council, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Dainius Pūras’ un Doc A/​h rc/​29/​33, 2 April 2015 at para. 15. 423 Keys (n 383) 331.

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5.4 Threats to the Physical and Moral Integrity and Security According to Art. 17 crpd, ‘every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’. It is the first time that the right to physical and mental integrity of the person is protected in a UN human rights treaty.424 This is a civil and political right in its nature and states are thus under an immediate obligation to implement this.425 A core element of Art. 17 crpd is informed consent and the freedom from involuntary medical or other treatment, including forced sterilizations and forced abortions.426 As Keys has observed ‘[t]‌he concept of free and informed decision-​making is the gatekeeper to mental and bodily integrity and is underpinned by the recognition of legal capacity’.427 It is also pertinent for persons who are subject to formal or informal substitute decision-​making, ‘when isolated in care and subject to coercive mental health laws’.428 Mental health laws regularly legitimize the use of state intervention for coercive treatment and other forms of restrictive practices, relying on substitute decision-​making rather than supported decision-​making.429 In the context of the refoulement prohibition, the ECtHR has recognised that if the ‘moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention’, this may constitute an obstacle to removal.430 The principles enunciated in Art. 3 crpd assist an interpretation of Art. 17 crpd, particularly the requirement to respect the inherent dignity, individual autonomy, including the right to make one’s own choices, non-​discrimination

424 Keys (n 383) 327 noting that the only other human rights instrument, which also protects this, is the EU Charter of Fundamental Rights in its Art. 3. 425 Keys (n 383) 327. 426 Keys (n 383) 328. 427 Keys (n 383) 329. 428 Keys (n 383) 329. 429 Keys (n 383) 330–​331. 430 Bensaid v United Kingdom app no 44599/​98 (ECtHR, 6 May 2001) at para. 48; the ECtHR has recognised the particular vulnerability of persons with disabilities also in the context of Art. 3 echr, see Babar Ahmad and Others v United Kingdom (2010) app nos 24027/​07, 11949/​08 and 36742/​08 (ECtHR); and generally regarding vulnerability and Art. 3 echr, see Keenan v United Kingdom app no 27229/​95 (ECtHR, 3 April 2001) at para. 111; however, it has generally been criticized that disability has so far been ‘marginalised’ in the echr jurisprudence, see Colm O’Cinneide, ‘Extracting Protection for the Rights of Persons with Disabilities from Human Rights Frameworks: Established Limits and New Possibilities’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities:  European and Scandinavian perspectives (Martinus Nijhoff Publishers 2009).

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and the evolving capacities of children.431 Art. 17 is directly linked to the right to legal capacity in Art. 12 crpd. In addition, there is overlap with the prohibition of torture and cidtp in Art. 15 crpd, which all protect aspects of the physical and mental integrity of persons with disabilities. As Quinn has observed, Art. 17 crpd ‘restates the essence of this cluster, which is really about using human rights norms to throw appropriately tailored protection shields around the person’.432 Art. 25 crpd in relation to free and informed consent to medical treatment also overlaps with this.433 Persons with disabilities do not only experience ill-​treatment in institutionalised settings considered above. They are also regularly subject to violence and abuse at the hands of their relatives. The UN Special Rapporteur on Torture and cidtp also addressed the ill-​treatment of persons with disabilities in the private sphere in his Interim Report. He observed:434 In the private sphere, persons with disabilities are especially vulnerable to violence and abuse, including sexual abuse, inside the home, at the hands of family members, caregivers, health professionals and members of the community. Persons with disabilities are up to three times more likely to be victims of physical and sexual abuse and rape.435 Family members and caregivers are frequent perpetrators of such violence.436 Besides violence perpetrated in the personal sphere, societal violence against persons with disabilities is also prevalent. The crpd Committee has addressed this in the communication of a person with albinism, whose arm 4 31 Keys (n 383) 329. 432 Gerard Quinn, ‘A Short Guide to the United Nations Convention on the Rights of Persons with Disabilities’, Yearbook on disability law, vol 1 (Intersentia) 105, also cited in Keys (n 383) 330. 433 Keys (n 383) 330. 434 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 39. 435 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377) at para. 68, referring to World Bank/​Yale University, ‘hiv/​a ids & Disability:  Capturing Hidden Voices. Report of the Global Survey on hiv/​a ids and Disability’ Washington, dc, World Bank, 2004 11. 436 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 68.

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was hacked off by unknown people and neither the perpetrators of the crime nor his arm were ever found.437 The Committee noted the context of particular violence against persons with albinism in Tanzania. Although the complainant had submitted a complaint to the police, no investigation had been instituted until much later and he had had no other remedies available to him. The Committee stated that acts of torture are normally perpetrated by the state, and in this case they were perpetrated by private actors and as such, did not constitute torture within the meaning of Art. 15 crpd. Nevertheless, in the light of the failure of the state to protect against such violent acts, the Committee concluded that the violence against the complainant had amounted to ill-​treatment:438 Nonetheless, the Committee also recalls that States parties’ obligation to prevent and punish torture and inhuman and degrading treatment violations applies to acts committed by both State and non-​State actors. Expedition and effectiveness are particularly important in the adjudication of such cases. The Committee also considers that the suffering experienced by the author owing to the lack of action by the State party that would allow the effective prosecution of the suspected authors of the crime, becomes a cause of revictimization, and amounts to psychological torture and/​or ill-​treatment. For these reasons, the Committee finds that, in the circumstances of the present case, the State party has violated articles [sic] 15 of the Convention. In addition, the violent acts fell within the scope of Art. 17 crpd on physical and mental integrity so that the Committee found a violation of both Arts. 15 and 17 crpd.439 Women are often victims of double discrimination, as a result of their gender and disability.440 Art. 6 crpd specifically guarantees the rights of women with disabilities. It stresses that women with disabilities ‘are subject to multiple discrimination’ and states must ‘take measures to ensure the full 437 X v United Republic of Tanzania un Doc crpd/​c /​18/​d /​22/​2014, 31 August 2017 (crpd Committee). 438 X v. United Republic of Tanzania (n 438) at para. 8.6. 439 X v. United Republic of Tanzania (n 438) at paras. 8.7 and 9; for a similar analysis concerning persons with albinism, see also Y v United Republic of Tanzania un Doc crpd/​c /​20/​ d/​23/​2014, 31 August 2018 (crpd Committee). 440 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (n 377)  at para. 68.

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and equal enjoyment by them of all human rights and fundamental freedoms’ (Art. 6(1) crpd). In addition, states must ‘take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out’ in the crpd (Art. 6(2) crpd). This constitutes the first provision in international human rights law expressly prohibiting discrimination on the cumulative grounds of gender and disability and thus provides the first basis for remedies against forms of such multiple discrimination.441 Preambular recital (p) to the crpd also addresses the concern ‘about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status’. The cedaw Committee has addressed the issue of multiple discrimination against women with disabilities in its General Comment No. 25.442 The crpd Committee has indicated that forced sterilization and forced abortions, even with substitute decision-​making or court approval, are in violation of Art. 17 crpd and need to be explicitly prohibited by law.443 In addition, forced abortion and sterilisation clearly constitute a violation of Art. 23(c) crpd on the right of persons with disabilities, including children, to retain their fertility on an equal basis with others and of Art. 23(b) crpd to decide freely and responsibly on the number and spacing of their children. It is also been recognised that it constitutes a violation of the prohibition on torture and illtreatment.444 The UN Special Rapporteur on Torture and cidtp has pointed out that specific groups, including women with disabilities are often

441 Valentina Della Fina, ‘Article 6 [Women with Disabilities]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 189. 442 See also the crpd Committee, General Comment No. 3 (2016) on Women and Girls with Disabilities (n 62) addressing the specific situation of women and girls with disabilities in detail. 443 crpd Committee, Concluding Observations on the Initial Report of Germany (n 383)  at paras. 37–​38. 444 See for instance UN Human Rights Committee (HRCtee), ‘ccpr General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women)’ un Doc ccpr/​c /​21/​Rev.1/​ Add.10, 29 March 2000 at para. 11; Committee against Torture, ‘Concluding Observations on the Fourth Periodic Report of Peru’ un Doc cat/​c /​p er/​c o/​4, 25 July 2006 at para. 23; Committee against Torture, ‘Concluding Observations on the Third Periodic Report of the Czech Republic’ un Doc cat/​c /​c r/​32/​2, 3 June 2004 at paras. 5(k) and 6(n).

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targeted on the basis of discriminatory notions ‘that they are unfit to bear children’ and stressed:445 Forced sterilization is an act of violence, a form of social control, and a violation of the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment. The mandate has asserted that “forced abortions or sterilizations carried out by State officials in accordance with coercive family planning laws or policies may amount to torture”. Art. 7 crpd further guarantees the rights of children with disabilities to non-​ discrimination and to their best interests being a primary consideration in all actions concerning children with disabilities (Art. 7(1) and (2) crpd). This was raised as a ground against removal in the first asylum case before the crpd Committee concerning a Nigerian family with an autistic child.446 While the communication was declared inadmissible because the applicants’ removal was statute-​barred in Sweden, the right to the best interests of the child, to health care and education were all raised as grounds against removal. In particular, states must ensure that ‘children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-​appropriate assistance to realize that right’ (Art. 7(3) crpd). The crc Committee has stressed that children with disabilities are ‘more vulnerable to all forms of abuse be it mental, physical or sexual in all settings, including the family, schools, private and public institutions, inter alia alternative care, work environment and community at large’, being five times more likely to experience abuse than their non-​disabled peers.447 The cescr Committee has equally stressed that children with disabilities are ‘especially vulnerable to exploitation, abuse and neglect’ and are entitled to special protection under Art. 10(3) icescr.448

445 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 48, see also at para. 80 stating for instance that national law in Spain allows the forced sterilization of minors with severe intellectual disabilities. 446 O.O.J. and Others v. Sweden (n 355) in particular see para. 3.1. 447 crc Committee, ‘General Comment No. 9: The Rights of Children with Disabilities’ un Doc crc/​c /​g c/​9, 27 February 2007 at para. 15. 448 cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 133) at para. 32.

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Arts. 6 and 7 crpd on the rights of women and children with disabilities are intended to be horizontally integrated across the crpd and affect all other obligations.449 The obligations in relation to physical and mental integrity under the crpd raise the issue that the heightened levels of discrimination and violence, even if occasional, against persons with disabilities form part of the pattern of societal discrimination against them. The eradication of such societal violence is thus one of the fundamental aspects of eliminating discrimination against persons with disabilities. 5.5 Right to Health Care and Medical Treatment Art. 25 crpd guarantees the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. This guarantees both a right to the same range, quality and standard of free and affordable health care that is afforded to non-​disabled persons and to those health services needed by them specifically because of their disabilities (Art. 25(a) and (b) crpd). Health professionals are required to provide ‘care of the same quality’, including on the basis of free and informed consent, as would be provided to others (Art. 25(d) crpd). In addition, it includes the right to health care in the area of sexual and reproductive health and population-​based health programmes (Art. 25(a) crpd). Art. 25 crpd also includes the right to early identification and intervention as appropriate and to services designed to minimize and prevent further disabilities (Art. 25(b) crpd). Furthermore, states are under an obligation to provide such health services as close as possible to people’s own communities and rural areas (Art. 25(c) crpd). While the obligations set out above primarily concern socio-​economic aspects of the right to health, Art. 25 crpd also has components, which are of a civil or political nature. For instance, states must prevent ‘discriminatory denial of health care or health services or food and fluids on the basis of disability’ (Art. 25(f) crpd). Health professionals are also under an obligation to raise ‘awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care’ (Art. 25(d) crpd). States must ‘prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law’ and this must be provided ‘in a fair and reasonable manner’ (Art. 25(e) crpd). 449 Stein and Lord (n 360) 28.

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Art. 12(1) icescr also includes the right to the highest attainable standard of health, which entails the right to timely and appropriate health care. Health care must be both available and accessible, in the sense that it must be non-​ discriminatory, physically accessible, economically accessible and accessible through information.450 The right to physical and mental health includes the right to have access to those medical and social services, which ‘enable persons with disabilities to become independent, prevent further disabilities and support their social integration’.451 Even where a state suffers from serious resource scarcity, this does not relieve the state from minimum obligations under the duty of progressive realization. As the cescr Committee has stated, certain core obligations are of immediate effect and their non-​realization is never justified.452 However, the reality for persons with disabilities in many developing countries is that their access to health care is challenging due to resource limitations.453 But the UN Special Rapporteur on Health has questioned the justification of resource constraints for a lack of realization of the right to health and has observed:454

450 Ilja Richard Pavone, ‘Article 25 [Health]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 475. 451 United Nations Committee on Economic, Social and Cultural Rights (cescr), ‘General Comment No. 5: Persons with Disabilities’ un Doc E/​1995/​22, 9 December 1994 at para. 34; however, in the refoulement context, this issue has generally been dealt with in quite a restrictive manner, see e.g. the test of very exceptional circumstances in N v United Kingdom app no 26565/​05 (ECtHR (gc), 27 May 2008) concerning a Ugandan with hiv; with the threshold having being lowered slightly in Paposhvili v Belgium app no 41738/​10 (ECtHR, 17 April 2014), after several judges expressed their discontent with the high threshold, see for instance Yoh-​Ekale Mwanje v Belgium app no 10486/​10, 20 December 2011 (ECtHR), and see the dissenting opinion in SHH v United Kingdom app no 60367/​10 (ECtHR, 29 January 2013)  concerning a physically disabled Afghan man to be returned to Kabul; for a detailed discussion of this, see Fanny de Weck, ‘Das Rückschiebungsverbot Aus Medizinischen Gründen Nach Art. 3 EMRK’ Jusletter, Schwerpunktausgabe Migrationsrecht 13 März 2013; the threshold has been formulated in a slightly less restrictive manner by the Inter-​American Commission for Human Rights in Andrea Mortlock v United States Case 12534, Report No 63/​08 (IAComHR, 25 July 2008). 452 cescr, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health’ un Doc E/​C.12/​2000/​4 (11 August 2000) at paras. 30–​32. 453 Pavone (n 451) 476. 454 UN Human Rights Council, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Dainius Pūras’ (n 423) at para. 41.

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All too often, the failure to put basic principles into practice is not linked to financial obstacles, but is mostly owing to prevailing attitudes among stakeholders that are not in line with human rights and public health principles. In particular in the context of hiv/​a ids, it has been documented that persons with hiv/​a ids suffer mistreatment or denial of medical treatment. They get ‘turned away from hospitals, summarily discharged, denied access to medical services unless they consent to sterilization, and provided poor quality care that is both dehumanizing and damaging to their already fragile health status’.455 Closely linked to the right to health care is Art. 26 crpd, which further guarantees the right of persons with disabilities to habilitation and rehabilitation (habilitation relating to such skills and functioning for daily living, which have never been acquired and rehabilitation relating to such skills and functioning which have been lost due to disability or a change in personal circumstances’).456 Habilitation and rehabilitation services must be aimed at providing ‘effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life’ (chapeau of Art. 26(1) crpd). Comprehensive habilitation and rehabilitation programmes and services must be organized, strengthened and extended ‘particularly in the areas of health, employment, education and social services’ (chapeau of Art. 26(1) crpd). (Re-​)habilitation goes beyond medical intervention and includes for instance the provision of assistive devices and technologies or vocational training. For persons with disabilities, access to habilitation or rehabilitation may constitute a precondition for their integration or reintegration into society and inclusion into the community.457 Further, torture victims have a right to rehabilitation in accordance with Art. 14 cat.458 While this entails a right to as full a physical and 455 UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ (n 208) at para. 71; a further consequence also of Art. 25 crpd is that non-​consensual psychiatric interventions are no longer permissible, see Pavone (n 451) 479. 456 Rehabilitation International, RI Global Work/​Habilitation & Rehabilitation . 457 Ilja Richard Pavone, ‘Article 26 [Habilitation and Rehabilitation]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 488. 458 For a forthcoming judgment of the cjeu on the question whether a lack of treatment according to Art. 14 cat falls within the non-​refoulement obligation under Art. 15 Recast

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psychological rehabilitation as possible, in practice ‘the majority of torture survivors do not have access to adequate treatment’.459 The right to health under the crpd thus has socio-​economic components relating to the provision of health care and the accessibility and availability of medical services. However, it also has civil and political components relating to the eradication of discrimination in the provision of such health care and medical services. 5.6

Right to Work and to an Adequate Standard of Living and Accessibility Art. 27 crpd guarantees the right to work and employment for persons with disabilities. Equal access to employment is ‘both a goal in itself and a means to facilitate enjoyment of other rights such as independent living and social inclusion, rehabilitation, education, adequate income, political participation, participation in cultural life, and non-​discrimination’.460 The core of Art. 27 crpd is the duty on states to ‘create an open, inclusive, and accessible labour market where persons with disabilities enjoy the right to work on an equal basis with others’.461 Furthermore, persons with disabilities must not be held in slavery or in servitude and must be protected from forced labour on an equal basis with others (Art. 27(2) crpd). The header of Art. 27(1) crpd states: States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with Qualification Directive (but not refugee status), see MP v Secretary of State for the Home Department C‑353/​16, 24 April 2018 (cjeu); for the grant of a discretionary status to torture victims in such circumstances, see Y & Anor (Sri Lanka) v Secretary of State for the Home Department [2009] ewca Civ 362 (UK Court of Appeal); see also the judgment of the cjeu in K v Bundesasylamt C-​245/​11, judgment of 6 November 2012 (Court of Justice of the European Union) judgment of 6 November 2012 (Court of Justice of the European Union) recognising the special bond of dependency between a torture and rape victim and her only trusted family member, the mother-​in-​law. 459 UN Special Rapporteur on Torture and Cruel, Inhuman and Degrading Treatment, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ un Doc A/​65/​273, 10 August 2010 at para. 71; the UN Special Rapporteur on Torture or cidtp has criticised this as a further example of the prevalent reluctance on the part of States to deal with the issue of torture in a rigorous manner, at para. 72. 4 60 Ventegodt Liisberg (n 134) 499. 461 Ventegodt Liisberg (n 134) 499.

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disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps … It further imposes obligations on states to take appropriate steps, including legislation, to remove discrimination in relation to all matters of employment, including hiring, continuance of employment, career opportunities, safe and healthy working conditions, equal work opportunities and equal remuneration for work of equal value, labour and trade union rights (Art. 27(1)(a)-​(c) crpd). In addition, measures must be taken to protect from harassment and provide for redress of grievances (Art. 27(1)(b) crpd). Furthermore, such measures must be taken for the effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training, assistance in finding, obtaining, maintaining and returning to employment and career advancement (Art. 27(1)(d)-​(e) and (k) crpd). In addition to employment, Art. 27(1)(f) crpd obliges states to take appropriate steps to promote opportunities for self-​employment, entrepreneurship, the development of cooperatives and starting one’s own business. States are under a further obligation to employ persons with disabilities in the public sector and promote their employment and work experience in the private sector, including through ensuring that reasonable accommodation is provided to them (Art. 27(1)(g)-​( j) crpd). There must be no discrimination in relation to the access to employment and work and states must provide for reasonable accommodation in individual cases (Art. 2 crpd). The duty of reasonable accommodation is a case-​ specific obligation, which depends on the precise circumstances of the individual case and as a general obligation is a novelty in international law.462 It is ‘directed towards real persons in real life situations’.463 It requires the provision of ‘reasonable adjustments’ which do not impose a ‘disproportionate or undue burden’. What a disproportionate or undue burden is, depends on whose duty it is to fulfil the obligation: if it’s the state’s duty or a major private company’s duty, ‘the burden will have to be extremely heavy before it can be considered disproportionate or undue’.464 462 Rachele Cera, ‘Article 5 [Equality and Non-​Discrimination]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 158. 463 Mjöll Arnardóttir (n 360) 60. 464 Holger Kallehauge, ‘General Themes Relevant to the Implementation of the UN Disability Convention into Domestic Law: Who Is Responsible for the Implementation and How Should It Be Performed?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN

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As the duty to provide reasonable accommodation forms part of the prohibition of discrimination is must be realised immediately. Even in the context of socio-​economic rights the duty of reasonable accommodation may therefore not be progressively realised, but applies directly.465 But a degree of relativity is injected with the concepts of reasonableness and ‘disproportionate and undue burden’.466 In fact, the inclusion of reasonableness and undue burden were a compromise during the drafting because civil and political rights and economic, social and cultural rights were both covered by the immediate discrimination prohibition, by reintroducing ‘to some extent, concepts of progressive realization and margin of discretion’.467 Artificial barriers to integration and employment, such as access to public buildings, workplaces or public transport must be removed.468 Access to ‘appropriate and, where necessary, specially tailored forms of transportation is crucial’.469 Art. 28(1) crpd further provides for the right to an adequate standard of living and social protection, which includes adequate food, clothing and housing without discrimination. This in fact articulates in more detail the right in Art. 11 icescr, according to which persons with disabilities have an equal right to an adequate standard of living, which includes access to food, housing and basic material needs, including special assistance and special clothing (Art. 11 icescr).470 Art. 28(2) crpd guarantees the right to social protection without discrimination, including clean water services, access to appropriate and affordable

4 65 466 467

4 68 469 470

Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (Martinus Nijhoff Publishers 2009) 211. Cera (n 463) 167. See further on this Motz (n 10) 147–​151. Rachele Cera, ‘Article 2 [Definitions]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017)  115; several decisions of the crpd Committee have now interpreted what this duty entails, see for instance HM v Sweden un Doc crpd/​c /​7/​d /​ 3/​2011 (crpd Committee) in the context of a refusal of building permission for the construction of a hydrotherapy pool for the rehabilitation of a person with a physical disability; Nyusti and Péter Takács v Hungary un Doc crpd/​c /​9/​d /​1/​2010, 16 April 2013 (crpd Committee) concerning the state’s failure to remedy the lack of accessibility to the banking card services of a private bank’s atm s; Marie-​Louise Jungelin v Sweden un Doc crpd/​ c/​12/​d /​5/​2011, 14 Novemer 2014 (crpd Committee) concerning the lack of adjustment by the potential employer of the computer system, as it could not be adjusted for the applicant’s sight impairment. cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 133) at paras. 22–​23. cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 133) at para. 23. cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 133) at para. 33.

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services, devices and other assistance for disability-​related needs, access to social protection and poverty reduction programmes, particularly women, girls and older persons with disabilities, assistance from the state with disability-​ related expenses, including adequate training, counselling, financial assistance and respite care, public housing programmes and retirement benefits and programmes (Art. 27(2)(a)-​(e) crpd). This is based on the right to adequate income support in Art. 9 icescr. Such support should reflect the special needs for assistance and other expenses often associated with disabilities.471 Art. 28 crpd thus combines Arts. 9 and 11 icescr, both of which seek to guarantee the basic needs of persons with disabilities. Art. 9 crpd further guarantees the right to accessibility. This includes not only physical accessibility of public and private spaces, but also accessibility to information, communications and other services or electronic accessibility and accessible emergency services (Art. 9(1)(a) and (b) crpd). Without accessibility, ‘persons with disabilities cannot make fundamental life choices such as making healthcare decisions, enjoying equal rights to education, and deciding where to work or where to receive education’ so that individuals can also not assume an active role in society and lead a normal life.472 The right to accessibility includes the ‘right to use, and obtain an equal benefit the provision of goods, services, facilities, and accommodations generally available to the public without discrimination’ because of one’s disability.473 The right to accessibility is both a substantive right and a general principle of the crpd, informing the implementation of the other crpd rights in an accessible manner, such as the right to health, education, work etc.474 The early implementation of accessibility requires the development and dissemination of accessible communication systems and technologies as well as the provision of communicative aids, such as Braille, and alternative tools of communication and multimedia, information aid and translators into sign language.475 In addition, Art. 9(2)(c) crpd requires that training on accessibility 4 71 cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 133) at para. 28. 472 Francesco Seatzu, ‘Article 9 [Accessibility]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 231. 473 Seatzu (n 473) 227 although Seatzu limits this to ‘physical disabilities’, it would appear that the right in Art. 9 crpd also extends to accessibility without discrimination on the basis of one’s intellectual or other disability. 474 For a discussion of the relationship between the different rights, see crpd Committee, ‘General Comment No. 2 (2014): Article 9: Accessibility’ un Doc crpd/​c /​g c/​2, 22 May 2014; see also Seatzu (n 473) 227. 475 Seatzu (n 473) 235.

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be provided to relevant stakeholders, such as health care professionals, employers, lawyers or judges.476 Accessibility seeks to ensure both the realization of the other human rights of persons with disabilities and more generally their autonomy and dignity.477 While accessibility is generally speaking a socio-​economic right to be implemented progressively, where accessibility standards are still lacking there is an immediate duty to provide for reasonable accommodation in the individual case.478 The crpd further guarantees the right of persons with disabilities to mobility under Art. 20 crpd. In particular, states must take ‘effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities’ and facilitate mobility ‘in the manner and at the time of their choice, and at affordable cost’ (Art. 20(a) crpd), access to ‘quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost’ (Art. 20(b) crpd), provide ‘training in mobility skills’ both to persons with disabilities and to specialist staff working with them (Art. 20(c) crpd), and encourage ‘entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities’ (Art. 20(d) crpd). This right is one of the embodiments of the social approach to disability, recognizing that it is societal barriers, which have a disabling effect.479 In contrast to Art. 9 crpd, which focuses on the eradication of environmental and other barriers, Art. 20 crpd centres on the necessary devices and technology which enable mobility of persons with disabilities.480 The accessibility of work and employment for persons with disabilities again involves various human rights obligations, some of which are of a socio-​economic nature, and others which are not. For instance, the elimination of discrimination is a civil and political right and the provision of reasonable accommodation as part of the prohibition of discrimination also. However, it is noteworthy that the duty to provide reasonable accommodation itself 4 76 Seatzu (n 473) 235. 477 Seatzu (n 473) 238. 478 Seatzu (n 473)  232; crpd Committee, ‘General Comment No. 2 (2014):  Article 9: Accessibility’ (n 475) at paras. 25–​26. 479 Marco Fasciglione, ‘Article 20 [Personal Mobility]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 376. 480 Fasciglione (n 480) 377; and see the crpd Committee’s decision in Mr F v Austria un Doc crpd/​c /​14/​d /​21/​2014, 9 September 2015 (crpd Committee) concerning lack of disabled access to the public transport system, finding violations of Arts. 19 and 20 crpd.

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introduces a certain degree of relativity or progressiveness, as it only requires adjustments which are ‘reasonable’ and do not impose an ‘undue burden’. However, this needs to be examined in each individual case and therefore no general assessment is possible in relation to this.481 5.7 Right to Inclusive Education and Children’s Rights Art. 24(1) crpd obliges States to provide ‘an inclusive system of education and of life-​long learning’ directed to the ‘full development of human potential and sense of dignity and selfworth, and the strengthening of respect for human rights, fundamental freedoms and human diversity’,482 the ‘development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential’,483 and ‘[e]‌nabling persons with disabilities to participate effectively in a free society’.484 To this aim, it is important that persons with disabilities are ‘not excluded from the general education system on the basis of disability’,485 but can access inclusive, quality and free primary and secondary education on an equal basis with others in their own communities.486 This includes a state duty to ensure that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of their disability.487 Furthermore, reasonable accommodation and effective individualised support measures must be provided.488 Tertiary education, vocational training and other measures of lifelong learning must be open to them without discrimination.489 Art. 13 icescr also guarantees the right to education and further specifies that for its realization its ‘availability, accessibility, acceptability, and adaptability’ must be guaranteed.490

481 For a detailed consideration how the duty of reasonable accommodation may impact on asylum decision-​making, see Motz (n 10). 482 Art. 24(1)(a) crpd. 483 Art. 24(1)(b) crpd. 484 Art. 24(1)(c) crpd. 485 Art. 24(2)(a) crpd. 486 Art. 24(2)(b) crpd. 487 Art. 24(2)(a) crpd. 488 Art. 24(2)(c)-​(e) crpd. 489 Art. 24(5) crpd. 490 Valentina Della Fina, ‘Article 24 [Education]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 446 referring to the ‘4-​A’ identified by Katerina Tomasevski, former UN Special Rapporteur on education, without express citation however.

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The general rule is thus clearly that children with disabilities must be educated inclusively, together with other children.491 The only exception to this is provided for in Art. 24(3) crpd, which explains that persons with disabilities must be enabled to ‘learn life and social development skills to facilitate their full and equal participation in education and as members of the community’ with Braille, sign language and other alternative modes, means and formats of communication and orientation. For education to be accessible, teachers also need to be trained to educate children with disabilities within regular schools and the necessary equipment and support must be made available (Art. 24(4) crpd).492 Laws and policies seeking to effect inclusive education are a starting point. In Autism-​Europe v. France the European Social Committee found France in violation of the European Social Charter for the failure to adopt legislation prohibiting disability discrimination in education.493 However, laws and policies alone are not sufficient. In the case of Mental Disability Advocacy Centre (mdac) v. Bulgaria the European Committee of Social Rights held that despite legislative changes only an extremely low percentage of children with intellectual disabilities were attending mainstream schools and teachers lacked the training to competently instruct children with intellectual disabilities. The Committee found a violation of the right of children to social, legal and economic protection (Art. 17(2) European Social Charter) since children living in homes for mentally disabled children had no effective access to education. It is sometimes argued that inclusive education is too expensive for states. However, the economically beneficial effects of inclusive education have been variously stressed. For instance, the UN High Commissioner for Human Rights has issued a report ‘From Exclusion to Equality’, which addresses this as follows:494 Inclusion is often (mis)conceived as prohibitively expensive, impractical, unsustainable or a strictly disability-​specific issue. However, not all positive measures are costly. Several countries have already developed cost-​ effective programmes to promote inclusiveness with limited resources. States should use available resources, focus on achieving clear goals, and 4 91 Lawson, ‘A Catalyst for Cohesion?’ (n 360) 92. 492 cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 133) at para. 35. 493 Autism-​Europe v France Complaint No. 13/​2002, 4 November 2003 (European Committee of Social Rights) at para. 158. 494 Secretariat for the Convention on the Rights of Persons with Disabilities-​d esa, ohchr and Inter-​Parliamentary Union (n 136) 84.

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ensure sustainability of education funding in the short, medium and long term. Cutting funding to an inclusive education system has dramatic adverse effects not only for individuals, but also for the policy of inclusion, in general. Inclusive educational settings are generally less expensive than segregated systems. The former Council of Europe Commissioner for Human Rights, Nils Muznieks, has also stressed the negative economic implications of school segregation:495 School segregation is also negative from an economic point of view… [S]‌pecial schools and other forms of separate educational provision are far more costly to the state than mainstream schools. High concentrations of vulnerable students in the same schools and classrooms oblige public authorities to provide substantial material and human resources to meet the needs of high numbers of students who may have learning difficulties. In addition, separation worsens school dropout rates and generates high costs in terms of human capital loss as well as in terms of costs induced by the need to implement second chance programmes and other forms of remedial education. These costs could be significantly reduced with inclusive education systems. While the right to inclusive education remains to be implemented in many countries around the world, certain obligations relating to the right to education for children with disabilities are part of the minimum core obligations and must be implemented immediately. In particular, a denial of any education to children on the basis of disability constitutes both a violation of the prohibition of discrimination and a violation of the core of the right to education. 5.8 Situations of War Art. 11 crpd provides that states must take ‘all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters’ in accordance with their obligations under international humanitarian law, international human rights law and international law generally. Thus, even in situations of war, conflict, emergency or natural disaster, states cannot simply rely on the extraordinary circumstances of the situation 495 Council of Europe Commissioner for Human Rights (n 6) 10.

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to justify a lack of protection for persons with disabilities.496 The crpd Committee has not yet decided any individual communications in relation to this right, but it has addressed it in various Concluding Observations and in its General Comments. Art. 11 crpd requires that information regarding routes and means of evacuation, humanitarian relief and aid, and of emergency services are accessible to persons with disabilities, as otherwise ‘their lives cannot be saved or their well-​being protected’.497 States are required to adopt legislation, protocols and plans on situations of risk and humanitarian emergencies, which take the requirements of persons with disabilities into consideration and are accessible to them.498 This may require giving preferential treatment to persons with disabilities for instance during evacuations, as a way of providing reasonable accommodation.499 Furthermore, camps for persons fleeing a conflict must be built in a way that is accessible to persons with mobility impairments or the formulation of reconstruction programmes following a conflict must take into account the needs of persons with disabilities by consulting them first.500 4 96 For a detailed discussion of what Art. 11 crpd requires, see Motz (n 200). 497 crpd Committee, ‘General Comment No. 2 (2014): Article 9: Accessibility’ (n 475) para. 36. 498 See for the most recent examples crpd Committee, Concluding Observations in Relation to the Initial Report of Armenia (12 April 2017) paras. 17–​18; crpd Committee, Concluding Observations in Relation to the Initial Report of the Republic of Moldova (12 April 2017) paras. 22–​23; crpd Committee, Concluding Observations on the Initial Report of Bosnia and Herzegovina (un Doc crpd/​c /​b ih/​c o/​1, 12 April 2017) paras. 25–​26; crpd Committee, Concluding Observations on the Initial Report of Cyprus (un Doc crpd/​c /​c yp/​c o/​1, 12 April 2017) para. 31; crpd Committee, Observaciones Finales Sobre El Informe Inicial de Honduras (12 April 2017) paras. 25–​26; crpd Committee, Concluding Observations on the Initial Report of Ethiopia (4 November 2016) paras. 23–​24; crpd Committee, Concluding Observations on the Initial Report of Guatemala (un Doc crpd/​c /​g tm/​c o/​1, 30 September 2016) paras. 29–​30; crpd Committee, Concluding Observations on the Initial Report of the United Arab Emirates (3 October 2016) paras. 21(a)-​22(a); crpd Committee, Concluding Observations on the Initial Report of Serbia (23 May 2016) paras. 19–​20; crpd Committee, Concluding Observations on the Initial Report of Portugal (20 May 2016) para. 24; crpd Committee, Concluding Observations on the Initial Report of Uganda (12 May 2016) para. 21; crpd Committee, Concluding Observations on the Initial Report of Thailand (12 May 2016)  paras. 23–​24; crpd Committee, Concluding Observations on the Initial Report of Qatar (2 October 2015) paras. 21–​22; crpd Committee, Concluding Observations on the Initial Report of Gabon (2 October 2015) paras. 26–​27; crpd Committee, Concluding Observations on the Initial Report of the European Union (2 October 2015) paras. 32–​33; crpd Committee, Concluding Observations on the Initial Report of Kenya (crpd/​c /​k en/​ co/​1 2015) para. 22. 499 Naomi Hart and others, ‘Making Every Life Count: Ensuring Equality and Protection for Persons with Disabilities in Armed Conflicts’ (2014) 40 Monash University Law Review 149, 164. 500 Hart and others (n 500) 155.

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In the context of humanitarian emergencies, the Committee stresses the need for both special warning systems in the evacuation of persons with disabilities and specific training.501 For instance, in the context of the current conflict in Syria, the crpd Committee has stressed that it is important that humanitarian agencies are able to operate throughout the country in order to assist persons with disabilities, emphasizing that they and their families are ‘the forgotten victims of the conflict’.502 In addition, Art. 11 crpd requires that humanitarian staff and authorities are sensitized ‘on the rights, protection and safety of persons with disabilities’ and identify and include persons with disabilities in humanitarian preparedness and response mechanisms.503 The rehabilitation of persons with disabilities who are victims of armed conflict, their social integration and their reparation and support also fall within the scope of Article 11 crpd, which the Committee highlighted in the context of the Colombian peace ­negotiations.504 Art. 11 crpd makes it thus clear that the persons with disabilities may, as a result of their disability, be at a heightened risk of harm in situations of war or conflict and that this may be due to a state failure to adequately protect their rights. 5.9 Denials of Legal Capacity Art. 12 (1) crpd guarantees the right to equal recognition as persons before the law. In particular, states must recognize that ‘persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’ (Art. 12(2) crpd) and provide persons with disabilities with access ‘to the support they may require in exercising their legal capacity’ (Art. 12(3) crpd). This means that persons with disabilities have a right to supported, rather than substitute,

501 crpd Committee, Concluding Observations on the Initial Report of Bosnia and Herzegovina (n 461)  para. 26; crpd Committee, Concluding Observations on the Initial Report of the United Arab Emirates (n 461)  paras. 21(b), 22(b); crpd Committee, Concluding Observations on the Initial Report of Serbia (n 461) para. 20; crpd Committee, Concluding Observations on the Initial Report of Ukraine (2 October 2015)  paras.22–​ 23; crpd Committee, Concluding Observations on the Initial Report of Slovakia (17 May 2016) para. 35; crpd Committee, Concluding Observations on the Initial Report of Azerbaijan (12 May 2014) para. 25. 502 Office of the United Nations High Commissioner for Human Rights, Persons with Disabilities ‘Forgotten Victims’ of Syria’s Conflict (Press Release, 13 September 2013) . 503 Charter on Inclusion of Persons with Disabilities in Humanitarian Action para 2.5.c. 504 crpd Committee, Concluding Observations on the Initial Report of Colombia (30 September 2016) para. 29.

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decision-​making, which respects their will and preferences.505 The person’s decision-​making skills ‘may vary from time to time, from one person to another, from one decision to another, along with the variation in the communication skills of the person’,506 and reasonable accommodation in the form of individually tailored support is thus key.507 Art. 13 crpd further guarantees the right to access to justice on an equal basis with others. The primary purpose of the right to legal capacity in Art. 12 crpd has been described as the recognition of personhood of persons with disabilities, as ‘it allows for an expression of the will in the lifeworld’.508 It has also been characterised as reconstituting ‘the person in the person with disabilities’.509 As Quinn observes it helps ‘to bulldoze away barriers to the lifeworld in the form of outdated legal incapacity laws’.510 The right to legal capacity demands that the ‘paternalistic “best interests” approach’ is abolished ‘in recognition of the damage it does to human capability’.511 In addition, the denial of legal capacity often marks the starting point of a string of violations and abuse of other human rights. States have to ensure that ‘all measures’ relating to the exercise of legal capacity ‘provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law’ (Art. 12(4) crpd). In accordance with Art. 12(4) crpd, such safeguards must be designed to ensure that the measures relating to the exercise of legal capacity: respect the rights, will and preferences of the person; are free of conflict of interest and undue influence; are proportional and tailored to the person’s circumstances; apply for

505 crpd Committee, ‘General Comment No. 1 (2014): Article 12: Equal Recognition before the Law’ un Doc crpd/​c /​g c/​1, 19 May 2014 at paras. 3, 28. 506 Mary Keys, ‘Article 12 [Equal Recognition Before the Law]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 269. 507 Keys (n 507) 266. 508 Gerard Quinn, Personhood & Legal Capacity: Perspectives on the Paradigm Shift of Article 12 CRPD (hpod Conference, Harvard Law School, 20 February 2010) 10. 509 Amita Dhanda, ‘Universal Legal Capacity as a Universal Human Right’ in Michael Dudley, Derrick Silvoe and Fran Gale (eds), Mental health and human rights: Vision, Practice and Courage (Oxford University Press 2012) 180, also cited in Keys (n 507) 267. 510 Quinn (n 509) 10. 511 Keys (n 507)  267; see also the study EU Fundamental Rights Agency, ‘Legal Capacity of Persons with Intellectual Disabilities and Persons with Mental Health Problems’ [2013] fra detailing the experiences of persons with disabilities with substitute and supported decision-​making and setting out which countries in the Council of Europe already have supported decision-​making.

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the shortest time possible; are subject to regular review by a competent, independent and impartial authority or judicial body; and are proportional to the degree to which such measures affect the person’s rights and interests. Subject to this, states must take ‘all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit’ and must ensure that persons with disabilities are not arbitrarily deprived of their property (Art. 12(5) crpd). 6 Conclusion The somewhat more detailed treatment in this subchapter of the relevant human rights standards in relation to disability-​specific forms of harm has sought to demonstrate the following two points. Firstly, many situations which the layman may not even consider in violation of any international human rights norms are expressly addressed through human rights in the crpd today. Secondly, all of the situations set out above involve both civil and political and socio-​economic rights. The assessment which asylum decision-​makers have to undertake, namely whether sending a person with disabilities back to her country of origin will involve serious harm to that person, regularly involves an assessment of both types of rights. The following concluding subchapter will now consider what this means for a disability-​specific interpretation of ‘serious harm’. D

Conclusion on Serious Harm

The case law on persons with disabilities, examined in subchapter iii.B above, has illustrated the main forms of harm that persons with disabilities fear when claiming asylum. These have included forced institutionalisation and treatment, threats to the physical or mental integrity, denial of health care, denial of work and accessibility, denial of inclusive education, situations of war and denials of legal capacity. While in many of the cases discussed in subchapter iii.B no serious harm was accepted, I  have sought to explore in subchapter iii.C whether a vclt-​compliant and disability-​specific interpretation of the refugee definition and particularly of ‘being persecuted’ would lead to a different result. In subchapter iii.C.2, I have demonstrated that the wording that the drafters chose to describe serious harm in the refugee definition, the term ‘being persecuted’, is open-​ended and flexible. This permits the refugee definition to adapt to future situations of persecution, so that its meaning is not set in stone.

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Further, several elements under the vclt rules of interpretation support an approach to ‘serious harm’, which takes into account human rights violations in international law. However, I  have also demonstrated in subchapter iii.C.3 that there are many different variants of a human rights approach to persecution, adopted by the courts and scholars. In particular, three broader categories can be distinguished. The first category, expounded by Carlier and Hathaway in 1991, distinguishes between different types of rights, categorising them in a hierarchy. Violations of rights which are placed higher in the hierarchy are more likely to amount to persecution, violations of rights which are lower ranked in the hierarchy are less likely to amount to persecution or require more serious types of violations for this. The second category, advocated by Goodwin-​Gill and McAdam, Zimmermann and Mahler and Foster in 2009, distinguishes between different types of violations of human rights. The question whether a certain form of harm amounts to persecution depends on the intensity, character or duration of the violation of the human right. Among the proponents of the second approach, certain scholars expound a hybrid of the hierarchical and this type of approach (in particular Goodwin-​Gill and McAdam). The third approach, introduced by Hathaway and Foster in 2014, proposes that every human rights violation, except for those which are de minimis, amounts to persecution. In subchapter iii.C.4 I  have examined unhcr and state practice, which converge on certain questions. As Maiani points out, persecution ‘readily includes, but is not restricted to, threats to life, limb or liberty’, particularly ‘torture, rape, genital mutilation […] as well as arbitrary detention’.512 This has been borne out by the study of unhcr and state practice in subchapter iii.C.4 above. unhcr and the states studied in this book generally accept murder, torture, arbitrary deprivation of liberty, forced sterilisation, abortion, female genital mutilation and domestic violence as amounting to persecution. As regards socio-​economic rights, the states studied here have adopted different approaches to the question whether such violations can amount to serious harm. The New Zealand courts adopt a core minimum obligations approach. Australian courts accept that economic harm and a denial of basic services or of livelihood that threaten the person’s capacity to subsist amount to persecution. In addition, discriminatory conduct directed at a group that is so oppressive that it cannot be tolerated is also recognised as serious harm. In Canada,

512 Maiani (n 239) mn 24; see also Maiani (n 217) 26; see also Goodwin-​Gill and McAdam (n 13) 92.

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a fundamental rights approach has been adopted accepting that the denial of fundamental socio-​economic rights may threaten the physical or moral integrity of the person concerned, such as a denial of education. In the United Kingdom, the focus rests on cumulative harms, which may amount to persecution, particularly where they attain the level of seriousness of violations of non-​derogable rights. In the US, a denial of education but also economic harm, where it threatens the person’s ability to subsist, may amount to persecution. unhcr has in the meantime also expressly accepted that violations of individual socio-​economic harms may, depending on the subjective make-​up of the person or on cumulative grounds, constitute persecution. Further, it expressly refers to serious restrictions on the right to earn a livelihood and on access to education as examples of persecution. The question, however, remains which one of the three broad categories of human rights approaches set out above best conforms to a vclt-​compliant interpretation of the refugee definition and, particularly, to a disability-​specific one. In my view, Foster is right in stating that a fixed and simplistic application of the hierarchical model in fact distracts from the interconnectedness of human rights and the cross-​cutting nature of different rights.513 I have demonstrated this with practical examples in subchapter iii.C.5, where the relevant international human rights standards concerning disability-​specific forms of harm were set out. Very often, civil and political rights cannot be disentangled from socio-​economic obligations arising in relation to the same situation. In addition, such an approach tends to ‘exclude types of harm that violate dignity and potentially have significant long-​term consequences for the individual concerned’, as for instance the denial of the right to education.514 Indeed, the crpd has been key in illuminating the denials of dignity to which persons with disabilities are exposed in day-​to-​day life. In my view, the third approach by Hathaway and Foster, which no longer distinguishes between civil and political rights on the one and socio-​economic rights on the other hand, conforms best to a disability-​specific interpretation of the refugee definition, as the crpd exemplifies the interrelated and interdependent nature of the different types of human rights, civil and political and socio-​economic rights. At the same time, those factors set out by the proponents of the second type of approach (the type of human rights violation approach), such as the duration or intensity of the human rights violation, are also relevant and may in fact be indicative of a failure of the state to comply with its duty of progressive realization in the

5 13 Foster (n 219) 150. 514 Foster (n 219) 130.

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context of socio-​economic rights (as the duration of the future harm indicates that the state may be failing in its duty to take steps progressively). However, the crpd has been referred to only rarely in the adjudication of asylum appeals of persons with disabilities in order to support a disability-​ specific interpretation of the refugee definition in the cases studied here. Two instances discussed above were the cases concerning persons with albinism (ac (Egypt) and af (Ghana)) in New Zealand.515 The crpd has not been relied on by the UK courts to grant an applicant asylum yet,516 nor in Canada.517 In Australia, decision-​makers have only referred to the crpd in relation to the human rights obligations of the country of origin, but not for an interpretation of the refugee definition.518 In both Canada and Australia, individual decision-​makers had however referenced the soft law standards concerning persons with disabilities prior to the adoption of the crpd.519 The cjeu has

5 15 ac (Egypt) (n 141) at para. 70; af (Ghana) (n 67) at paras. 63, 76, 108–​110. 516 But see rs & Ors (Zimbabwe  –​aids) Zimbabwe cg [2010] ukut 363 (iac) where the question whether a non-​refoulement obligation could be derived directly out of the crpd was argued and rejected due to the UK’s reservation to the crpd in matters of immigration; however the crpd was relied on in the asylum claim of a Kenyan woman suffering from muscular dystrophy in EA v SSHD [2018] UKAITUR PA085182016 (Upper Tribunal (Immigration and Asylum Chamber)) but the claim was rejected; the crpd was otherwise relied on only in the context of human rights but not asylum claims, see eg Akram v SSHD 2018] UKAITUR PA058242017 (Upper Tribunal (Immigration and Asylum Chamber)); BB et al v SSHD [2017] UKAITUR HU038952015 (Upper Tribunal (Immigration and Asylum Chamber)); SSHD v Ahmed [2017] UKAITUR HU000302015 (Upper Tribunal (Immigration and Asylum Chamber)). 517 Which may be explained by the prominence of their own Charter rights, see James C Simeon, ‘The Human Rights Bases of Refugee Protection in Canada’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016). 518 In several instances, the rrt referred to the crpd in order to demonstrate that a country of origin will offer sufficient protection because it has ratified it, without examining the actual situation of persons with disabilities there, see for instance RRT Case No. 1219395 (Ghanaian with mental health problems) (n 49); RRT Case No 071972350 [2008] rrta 220 (rrt (Australia)); RRT Case No 1008207 [2010] rrta 1117 (rrt (Australia)); for a more recent and more positive reliance on the crpd as well as the report of the UN Special Rapporteur on the Rights of Persons with Disabilities on Zambia see Reference 1510994 (Zambian with severe disabilities) aata Migration and Refugee Division (Australia) [2018] aata 3026, 20 June 2018; and for a case in which the Tribunal accepted that there was a lack of implementation of the crpd despite its ratification see Reference 1728413 (Zimbabwean with disability) (n 109) at para. 92 et seq. 519 See Olga Denissenko v Christine Haskett and Minister for Immigration and Ethnic Affairs [1996] fca 1513 (Federal Court of Australia) where the reference had been made by the rrt; X (Re) (Lebanese single woman with mental illness) (n 79).

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also not decided any case of a person with disabilities in relation to refugee status yet.520 In order to ensure the equal protection of refugee law for persons with disabilities, it is necessary that decision-​makers become more aware of disability-​specific questions. In my view, several elements are key for a disability-​specific approach to persecution. Firstly, the subjective element in the assessment of harm cannot be disregarded. As Crock notes ‘[d]‌ecision-​makers should, at the very least give consideration to the impact of disability on a person’s experience of harm’.521 Secondly, the systematic nature of discrimination against persons with disabilities, which is still in many different forms and variants occurring around the world must form the backbone to an enquiry as to whether a particular form of harm amounts to serious harm. Thirdly, it is important to recognise that many forms of harm, to which persons with disabilities are commonly exposed, have already been recognised as amounting to the most serious human rights violations (particularly of the prohibition of torture or ill-​treatment), which are considered in other contexts as clearly amounting to persecution. Fourthly, decision-​makers should not be shy to consider whether a state is complying

520 In relation to cases involving health issues in other removal contexts see Mohamed M’Bodj v État belge C‑542/​13, 18 December 2014 (cjeu); and MP v Secretary of State for the Home Department (n 458), both concerning the grant of subsidiary protection for health reasons in the context of Art. 15 of the Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/​9, 20 December 2011; and Centre public d’action sociale d’Ottignies-​Louvain-​La-​Neuve v Moussa Abdida C-​562/​13, 18 December 2014 (cjeu), concerning an assessment of medical reasons in the context of the Directive 2008/​115/​ EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-​country nationals 2008; and CK and Ors v Supreme Court of Republic Slovenia C-​578/​16, 16 February 2017 (cjeu), concerning a couple with a new born baby with a mother suffering from serious psychological health issues under the sovereignty clauses of the Regulation (EU) No 604/​2013 of the European Parliament and of the Councilof 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-​ country national or a stateless person (recast). 521 Mary Crock, Christine Ernst and Ron McCallum, ‘Where Disability and Displacement Intersect:  Asylum Seekers and Refugees with Disabilities’ (2012) 24 International Journal of Refugee Law 735, 41, referring to MJ (Angola) v Secretary of State for the Home Department [2010] ewca Civ 557 (UK Court of Appeal), which however is not an asylum case but a case relating to the deportation of a person with disabilities because of criminal offending.

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with its duty of progressive realization.522 As unhcr has stressed, decision-​ makers ‘need to have both a full picture of the asylum-​seekers’ personality, background and personal experiences, as well as an analysis and up-​to-​date knowledge of all the relevant objective circumstances in the country of origin’.523 What this means can be illustrated with the following examples. Under a disability-​specific approach to the refugee definition, forced institutionalisation with elements of ill-​treatment clearly ought to be considered as ‘serious harm’ and any failure of states to abolish discriminatory, involuntary and abusive institutionalisation should be considered persecution. However, many developing countries may face the issue that they may not have the financial resources to immediately abolish non-​discriminatory, non-​abusive and voluntary institutionalisation in favour of community-​based living in every case in accordance with Art. 19 crpd. Thus, this scenario throws light on the interrelated and interdependent nature of civil and political and socio-​economic rights. The right to liberty for persons with disabilities will only become a reality, if states invest in community based health care and support. As will be demonstrated in Chapter iv of this book, it is necessary for asylum decision-​makers to evaluate whether states are taking steps towards the progressive realization of community-​based living of persons with disabilities. In the majority of the cases set out in subchapter iii.B, decision-​makers failed to appreciate the inhuman and degrading nature of measures of restraint, seclusion and forced medical interventions. In addition, they failed to consider that involuntary institutionalisation, depending on its duration and general living conditions, may in itself constitute torture or ill-​treatment. In many cases, the question of forced institutionalisation was considered as a matter of socio-​economic rights only, thereby entirely failing to appreciate the civil and political rights dimension of the situation. Discriminatory deprivation of liberty ought to always be considered as ‘serious harm’. The same can be seen in the context of physical and mental integrity, where asylum decision-​makers still display a lack of awareness of, or sensitivity to, the issues of persons with disabilities. State failure to take any measures against

522 For instance, information regarding the implementation of the right to health can be found on the who website which provides Service Availability Mapping (which includes only government-​released data), who country fact sheets, and the who database with census data, vital registration and population studies and who reports, see the reference to this in Ssenyonjo (n 280) 50. 523 unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ (n 287) 2 mn 8.

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such societal violence and discrimination may lead to discriminatory situations with occasional violence and cumulative circumstances, which amount to persecution (this is further discussed in Chapter iv of this book). Similarly the lack of health care because of discriminatory attitudes on the part of health care professionals or the denial of education for discriminatory reasons involve immediately applicable civil and political rights obligations (non-​discrimination) in the context of otherwise socio-​economic rights. In my view, a consideration of the human rights standards pertinent to these situations of disability-​specific harms enriches an asylum decision-​maker’s analysis of the issues and promotes understanding of the forms of harm that persons with disabilities are still exposed to today. Where a person will be sent back to a country, where her rights under the crpd will be violated, it is my view that the situation in all but the most trivial instances is highly likely to amount to persecution. The crpd is not only the human rights-​ compliant benchmark for asylum decision-​making, but also a helpful tool for decision-​makers to assess whether what the person fears amounts to serious harm or not.

chapter iv

Failure of State Protection The advancement in the It seems to me that the Convention implementation of the Convention purpose which is of paramount importance […] is that which is to be has been slow […], leaving millions of people still in deprivation. States […] found in the principle of surrogacy. The general purpose of the Convention require more progress on increasing is to enable the person who no longer community- based services to prevent the marginalization and isolation has the benefit of protection against persecution for a Convention reason in of persons with disabilities from the his own country to turn for protection community and supporting them to fully exercise the freedom of making to the international community. their own decisions and regain control over their own lives. lord hope in Horvath v. SSHD1 UN Special Rapporteur on Disability, ‘Statement to Mark the 10th Anniversary of the [crpd]’2 A

Introduction

While there is a widespread lack of protection of the human rights of persons with disabilities in many countries around the world,3 the failure of state protection has arisen less regularly as a core issue in asylum cases concerning persons with disabilities. However, two aspects concerning the failure of state protection have proven to be of particular significance. First, the question of 1 Horvath v Secretary of State for the Home Department [2001] 1 AC 489 (UK House of Lords) 495 (Lord Hope), also cited in James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014) 288. 2 UN Special Rapporteur on Disability, ‘Statement to Mark the 10th Anniversary of the UN Convention on the Rights of Persons with Disabilities: It Is Time to Move from Law to Practice in the Implementation of the Rights of Persons with Disabilities’ 13 December 2016 . 3 See UN Special Rapporteur on Disability (n 2) noting that a lack of state protection persists in all states, ‘from the most developed to the least developed’.

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the necessary level of state protection arises with particular poignancy in two scenarios: in the context of low-level state officials and societal discrimination, and in the context of denials of socio-​economic rights.4 Secondly, a further aspect of state protection is the internal protection alternative concerning the question whether an applicant who has a well-​founded fear of persecution in her home area could find protection in another region of her country of origin. The consideration of the availability of an internal protection alternative in the context of persons with disabilities requires an assessment of the reasonableness of such internal protection alternative in the light of the specific needs of persons with disabilities. As regards the first issue of the level of necessary state protection, two problematic situations have arisen from the case law studied here. The first concerns an unwillingness of the state to prevent and protect against both state and societal abuse, discrimination and violence. In this context, it appears that asylum claims of persons with disabilities are assessed differently from other cases. Where a society systematically discriminates against a minority racial or religious group and is occasionally violent towards them, where state agents are part of the discriminatory web, and the state fails to take any measures to

4 An aspect which has not raised any disability-​specific issues in the case law, but sometimes arises in the context of failure of state protection is where an applicant fails to avail herself of state protection. This has been dealt with in the same manner as in other cases, which is why it is not dealt with separately in this part. For the rare cases, in which the failure to avail oneself of state protection has arisen, see eg X (Re) (uasc from Poland with disability) (2001) TA0-​05472 (irb (Canada)) concerning a Polish boy with impaired hearing who had been physically abused by his father, in which the irb found that the child could not have availed himself of state protection given that he was a child; and see X (Re) (Brazilian woman with disabilities and domestic violence victim) (2014) TB4-​08626 (irb (Canada)) concerning a Brazilian woman with disabilities who had been beaten once by her brother and who reported this incident to the police but had failed to take any action against the subsequent lack of a further investigation by the police thus having failed to demonstrate that it was more than an isolated incident; and see De Baez v Canada 2003 fct 785 (Federal Court of Canada) concerning the failure of a mother of a boy with cerebelous ataxia, a neurological condition, to seek protection from the police against bullying and ridicule; for an application of the human rights approach to failure to avail oneself of state protection, see Hathaway and Foster (n 1) 323–​330; a further issue which relates to the failure to avail oneself of state protection but has not arisen in the case law is the fact that the existence of laws of a general application which nevertheless have the effect of discriminating against persons with disabilities can hinder persons with disabilities from seeking and obtaining state protection, see for a similar situation unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​g ip/​12/​01, 23 October 2012) at para. 27.

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combat such discrimination even on the part of low-​level state officials, this would likely indicate an insufficiency of state protection. In relation to a religious minority, a systematic failure of the state to take any measures to combat impunity of crimes and discrimination against them, both on the part of the state and society, would likely constitute a failure of state protection. However, in cases of persons with disabilities, decision-​makers still regularly fail to even examine whether legal, policy or other measures have been taken by countries of origin in order to eliminate discrimination and violence against persons with disabilities. In those cases, can it be said that there is sufficient state protection? Can there be sufficiency of state protection in the face of undeniable unwillingness to protect? The second problematic situation arises in the context of the denial of socio-​economic rights. Decision-​makers often fail to assess whether countries of origin actually comply with both their minimum core obligations and the duty of progressive realisation. They regularly rely on the resource constraints of countries of origin in order to find that sufficient state protection is being provided in relation to socio-​economic rights. But even in the face of financial constraints, can they be a carte blanche for complete inaction in relation to socio-​economic rights? Is there sufficiency of state protection, if the country of origin exhibits sheer indifference towards the realisation of such rights? And is there sufficiency of state protection where a state takes no steps to eliminate or remedy discriminatory denials of socio-​economic rights? As regards the reasonableness of an internal protection alternative, it is important that decision-​makers take into account the specific needs of persons with disabilities and give due weight to pertinent medical evidence concerning the impact of such a relocation to a different area of the country of origin. These issues will be considered in this chapter. In subchapter iv.B, I will discuss the issue of sufficiency of state protection and consider how a disability-​ specific interpretation would impact on this requirement. In subchapter iv.C, I will address the issue of internal protection alternative and consider a disability-​specific approach to this. In subchapter iv.D, I will draw my conclusions from the foregoing. B

The Level of State Protection

Introduction 1 Societal discrimination and violence against persons with disabilities are still widespread. It is part of the states’ duties under the crpd to take active steps to eradicate this. However, in many states a culture of impunity in relation to

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discrimination against persons with disabilities prevails. States frequently fail to investigate, prosecute and punish violent crimes against persons with disabilities. Even where discriminatory and violent attitudes are perpetrated on the part of the state, state authorities fail to investigate and prosecute or remedy such acts at the hands of their own officials. In addition, many states still regularly fail to implement laws seeking to prevent and prohibit such discrimination or violence rendering the protection of the law illusory. As regards the realisation of socio-​economic rights, states still fail to take sufficient measures against the discriminatory denial of such rights and fail to allocate sufficient budget to their realisation. The question therefore arises when acts are perpetrated by the state, and what constitutes sufficient state protection in the case of non-​state persecution. Do states have a duty to prevent and protect against instances of discrimination and abuse? And do they have to take immediate action against the discriminatory denial of socio-​economic rights, on the part of state or non-​state actors? Or is it sufficient to just consider the level of availability, of medical treatment for instance, without paying any attention to persisting discriminatory attitudes? And is it necessary to consider whether states are taking any positive steps to eliminate discrimination against persons with disabilities towards making their human rights a reality? The cases set out in the following subchapter will demonstrate how these issues have arisen in asylum cases concerning persons with disabilities. 2 The Level of State Protection in Cases with Disabilities As regards state protection against violence, abuse and discrimination, one of the pertinent factors is whether the country of origin is taking any steps against such discrimination or violence. An early case illustrating this is the Australian Federal Court decision in Kuthyar v. mima.5 The case concerned a Hindu from Kashmir with hiv who had claimed, inter alia, that he would be discriminated against on the basis of his hiv status in employment, social interaction and the provision of health care in India. The lower instance rrt had found that the harms which the applicant feared did not amount to persecution, even when considered cumulatively, and failed to consider the issue of state protection.6 On appeal, the Federal Court began by noting the general climate of discrimination towards persons with hiv in India:7 5 Kuthyar v Minister for Immigration & Multicultural Affairs [2000] fca 110 (Federal Court of Australia). 6 Kuthyar v Minister for Immigration & Multicultural Affairs (n 5) at para. 76. 7 Kuthyar v Minister for Immigration & Multicultural Affairs (n 5) at para. 25.

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The general Indian population is largely uninformed about hiv/​aids and carriers face discrimination. People do not want to associate with them, or employ them, and doctors do not want to treat hiv patients. hiv sufferers are branded with the well-​known, though in Australia diminishing, stereotypes that they are either sexually promiscuous and gay, or drug users. Against this background, the Federal Court held that the real issue in the case was ‘the capacity and willingness of the authorities to protect individuals from harm’.8 Noting different reports of ‘various discriminatory circumstances imposed on hiv sufferers in India’, it found that there were few resources available for persons with hiv.9 While the rrt had considered that the applicant could not complain about the different level of health care in India as compared to Australia, the Court clarified that this was not the actual issue in the case:10 This finding was not legally erroneous but the true question here was, and is, whether the Indian authorities are in a position or are trying to protect hiv sufferers from the persecutory discrimination which it appears to be admitted does occur. It seems that the Tribunal simply failed to consider whether the applicant was reasonably unwilling to return because he could not avail himself of any such protection. The Court therefore remitted the case for further consideration to the rrt. The decision of the Australian Federal Court in Kuthyar illustrates the central importance that the lack of measures taken against discrimination of persons with disabilities should take. In this case, there was substantial evidence indicating that India was not taking any measures to protect persons with hiv from discrimination in general and the discriminatory denial of health care. The Court recognised that the true question was not an inability to provide health care, but in fact an unwillingness on the part of the state to combat discrimination. It raised the question whether there was a culture of stigma and discrimination towards persons with hiv and a corresponding failure of state protection. It is further noteworthy, albeit not raised expressly by the Court, that the case concerned discrimination on the part of state officials, namely health professionals, who would refuse to treat persons with hiv.11 Thus, this 8 9 10 11

Kuthyar v Minister for Immigration & Multicultural Affairs (n 5) at para. 76. Kuthyar v Minister for Immigration & Multicultural Affairs (n 5) at para. 79. Kuthyar v Minister for Immigration & Multicultural Affairs (n 5) at para. 79. See the reference to doctors refusing to treat persons with hiv Kuthyar v Minister for Immigration & Multicultural Affairs (n 5) at para. 25.

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case concerned discriminatory denial of health care on the part of local state officials coupled with a failure of the state to take any action against the discrimination of persons with hiv. This decision stands in stark contrast to an early decision of the Canadian Federal Court in the case of Liaqat v. Canada.12 The case concerned a 55-​year old Pakistani suffering from schizophrenia and depression with psychotic features who had experienced a violent robbery and threats from private actors, because he was a Shia Muslim. He had separated from his wife and had no other family support. On return to Pakistan he feared being forcibly placed into a shrine, where he would be chained and subjected to ‘discrimination and stigma, atrocities and brutalities and punishment to drive out the evil spirits within’.13 Local authorities claimed that they had no knowledge of such practices, but that whenever they heard of such bad practices, the persons would be released from the shrine. The Court further noted that the Pakistani state was seeking to take control of all the shrines, but not all were state-​run yet. On this basis the Court considered that ‘the government is making a significant effort to improve the delivery of mental health services and societal attitudes towards the mentally ill’ and had passed a new law relating to the treatment of ‘the mentally ill’.14 The Court found that while state protection was not perfect, it met the standard enunciated in Ward v. Canada.15 It is striking that the court made no mention in this case of any state measures taken to bring perpetrators of violent crimes against persons with disabilities to justice. Even though local officials admitted to being aware of the violence in the shrines, it appears that no investigations or prosecutions were instigated in response. The only measure mentioned was that the victim would then be released from the shrine, leaving the alleged perpetrators with impunity. The Court completely failed to consider whether there was evidence of steps taken against the abuse at the still existing privately run shrines, of state measures to combat violence, abuse and discrimination against persons with disabilities. Furthermore, the Court considered it relevant that the Pakistani state was now running the shrines, in which persons with psychosocial disabilities were being detained. However, it did not question the appropriateness of such shrines for the institutionalisation of persons with disabilities. Nor did it pay 12 13 14 15

Liaqat v Canada [2005] fc 893 (Federal Court of Canada). Liaqat v. Canada (n 12) at para. 32. Liaqat v. Canada (n 12) at para. 34. ibid at para. 36; and see Canada (Attorney General) v Ward [1993] 2 scr 689 (Supreme Court of Canada).

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any attention to the conditions, in which persons with disabilities were living in the shrines (including the state-​run ones). There is no consideration as to whether institutionalisation was with or without consent and whether forced treatment was being inflicted there, or whether the poor living conditions in the shrine amounted to serious harm. It thus did not even consider whether by running the shrines, the state was now perpetrating serious harm against persons with disabilities. The case serves as an illustration of the lack of enquiry into state protection in the context of violence, abuse and discrimination against persons with disabilities. A further example displaying a lack of awareness of disability-​specific issues is the Australian rrt case of a Ghanaian who feared being institutionalized against his will in a prayer camp, where he would be exposed to inhuman and degrading treatment.16 While the rrt refused the case on the basis of a lack of persecution, it also superficially addressed the Ghanaian government policy regarding persons with disabilities. In relation to this it held that the risk of being forcibly detained in a prayer camp was not due to a government policy, which was ‘deliberate, premeditated and motivated’, but to a ‘lack of funds and initiative’.17 This is a rather worrying analysis. A lack of initiative on the part of the state to combat abuse, violence and discrimination against persons with disabilities would be a clear indication of the unwillingness, rather than inability, of the state to protect. However, this was not considered any further. This is further illustrative of the fact that decision-​makers still fail to examine whether actual steps are being taken by a country of origin in order to combat abuse and discrimination. In contrast, two decisions of the Canadian irb concerning applicants from South Korea demonstrate more awareness of disability-​specific issues.18 One is X (Re) concerning forced institutionalisation and general issues of discrimination against persons with disabilities in South Korea in 2014.19 The case 16 17 18

19

RRT Case No 1219395 (Ghanaian with mental health problems) [2013] rrta 633 (rrt (Australia)). RRT Case No. 1219395 (Ghanaian with mental health problems) (n 16) at para. 28. Similarly, a decision of the Federal Court of Canada illustrates this point, though with a less detailed analysis, see Mwayuma et al v Canada (Minister of Citizenship and Immigration) [2019] fc 1573 (Federal Court of Canada) at para. 25 where the Court held that 30 trained professionals and six mental health hospitals in the drc, a country with 69 million people, many of whom have some form of mental illness or condition associated with the long-​standing violence in the country, was insufficient state protection for a man with schizophrenia. X (Re) (South Korean with mental health issues) (2014) TB1-​19714; TB1-​19741; TB1-​19747; TB1-​ 19748 (irb (Canada)).

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concerned a bi-​sexual South Korean woman who had been diagnosed with borderline personality disorder, complicated by depression and bipolar disorder as well as anorexia. As a result of her mental health issues, she had been hospitalized and treated against her will on several occasions, but was eventually discharged upon her mother’s insistence against medical advice. The examination of the country background evidence in this case relating to sufficiency of state protection for persons with intellectual or psychosocial disabilities provides a good example of an analysis of failure of state protection in the context of the duty of progressive realisation. In this case the irb considered the provision of mental health care in South Korea. The applicant had claimed that South Korea failed to protect persons with intellectual disabilities from persecution by institutionalising them in mental health hospitals far too readily. The irb, however, considered that South Korea had provided sufficiency of protection. It held that South Korea was ‘a democracy and is making efforts to combat issues in its health care system, judiciary, police and other institutions’.20 In particular, the irb considered it pertinent that South Korea was moving from a system of involuntary institutionalisation to a community-​based mental health care system:21 With respect to current conditions in South Korea, documentation states mental health policy was last revised in 2006 and its mental health plan was last revised in 2005. Both the policy and the plan include the following components:  organization of services (developing community mental health services, downsizing large mental hospitals, developing a mental health component in primary health care), human resources, involvement of users and families, advocacy and promotion, human rights protection of users, equity of access to mental health services across different groups, financing, quality improvement, and a monitoring system. In addition, a budget, timeframe and specific goals were identified in the latest mental health plan. The new law inter alia improved access to mental health care, protected the rights of persons with mental health problems, provided for oversight mechanisms for involuntary institutionalisation, their family members and other caregivers, addressed voluntary and involuntary treatment and provided for mechanisms overseeing involuntary admissions.22 Studies had shown that 20 21 22

X (Re) (South Korean with mental health issues) (n 19) at para. 48. X (Re) (South Korean with mental health issues) (n 19) at para. 39. X (Re) (South Korean with mental health issues) (n 19) at para. 40.

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community-​based treatment was more cost-​effective than compulsory hospitalisation and provided for better human rights protection.23 Korea was investing in community-​based rather than institution-​based treatment and the irb summarized the steps taken for community-​based treatment as follows:24 Community mental health centres funded by the South Korean Government to run treatment programs are staffed by multi-​disciplinary teams including mental health professionals such as registered nurses, clinical psychologists, social workers, with psychiatrists mainly involved in direction, planning, management and consultation. The main services provided by community mental health centres include case-​management, counselling for patients and their families, psycho-​education, family support and advocacy for patients and their families. In addition, community mental health centres provide emergency services for psychiatric crises, day care programs for patients with mental illness, screening for mental disorders, and referral to mental health facilities such as mental hospitals, psychiatric clinics, psychiatric nursing homes and rehabilitation centres . … While there was not yet a common health system throughout the country, South Korea was ‘quickly developing a comprehensive mental health service system in each catchment area’.25 Nevertheless, the availability of community-​ based mental health care was still insufficient.26 However, the who had assessed South Korea’s progress in a report and confirmed its efforts to develop a community-​based mental health system according to its mental health plan.27 While the who found that the budget for this was insufficient compared to developed countries, it noted that ‘the mental health financial resources [had] been increased considerably’.28 The provision of health care and the right to live in the community was found to be below the standard in Canada. Nevertheless, the irb found that 60% of the country had established community mental health centres and South Korea had enacted laws addressing discrimination against persons with disabilities, and their right to work, health care and social security.29 Given that South Korea had enacted ‘legislation in a 23 24 25 26 27 28 29

X (Re) (South Korean with mental health issues) (n 19) at para. 41. X (Re) (South Korean with mental health issues) (n 19) at para. 42. X (Re) (South Korean with mental health issues) (n 19) at para. 42. X (Re) (South Korean with mental health issues) (n 19) at para. 42. X (Re) (South Korean with mental health issues) (n 19) at para. 43. X (Re) (South Korean with mental health issues) (n 19) at para. 43. X (Re) (South Korean with mental health issues) (n 19) at paras. 44–​48.

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variety of areas, including improving access to mental health care, protecting the rights of mental health service consumers, family members and other care givers’, there was a sufficient level of state protection.30 This decision can be contrasted with an earlier decision of the irb from 2008, also concerning a South Korean woman with mental health issues. In this earlier case of X (Re), the irb had reached the opposite conclusion.31 The irb considered that there was insufficient state protection in the case of South Korea, even though it was a country generally respecting human rights.32 While South Korea was ‘making serious efforts to protect its citizens inflicted with mental illness’, violations of human rights still occurred to a considerable extent so that there was no adequate state protection for the applicant with mental health problems at that time.33 The applicant had therefore established that ‘the serious efforts to protect the rights of the mentally ill being made by the state in Korea [fell] short of providing her adequate protection’.34 These two cases illustrate how an analysis of a state’s compliance with the duty of progressive realisation involves an assessment of both legal and policy measures as well as their implementation in practice. In X (Re), a decision from 2008, South Korea had already enacted the legal and policy changes regarding mental health care for persons with disabilities, but these had not yet been implemented. However, in X (Re) decided six years later in 2014, the irb concluded that considerable advances had been made in the meantime, thus providing for sufficiency of state protection. The need to examine progress and implementation in practice can also be illustrated with the following case concerning a disability-​specific assessment in the context of the right to work. In ac (Egypt), the New Zealand ipt decision considered the case of a man with albinism and particularly the question whether Egypt had taken sufficient steps against the discrimination of persons with albinism.35 Egypt had enacted affirmative action legislation seeking to improve the access to employment of persons with disabilities, to which the applicant belonged according to the Egyptian government, and had enacted a quota of employment of persons with disabilities in the public sector of 5%.36

30 31 32 33 34 35 36

X (Re) (South Korean with mental health issues) (n 19) at para. 40, see also paras. 49–​50. X (Re) (Korean single mother suffering from schizophrenia) (2008) VA7-​ 02101 (irb (Canada)). X (Re) (Korean single mother suffering from schizophrenia) (n 31) at paras. 34–​35. X (Re) (Korean single mother suffering from schizophrenia) (n 31) at para. 44. X (Re) (Korean single mother suffering from schizophrenia) (n 31) at para. 45. ac (Egypt) [2011] nzipt 800015 (New Zealand ipt). ac (Egypt) (n 35) at paras. 73–​74.

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However, Egypt had failed to implement this legislation.37 The ipt noted the lack of implementation of the law,38 and that Egyptian legislation generally did not refer to disability, leading to an overall ignorance of disability issues.39 On the basis of the evidence the ipt concluded on a lack of sufficient state protection:40 In respect of both the failure by the Egyptian state to take effective measures to combat discrimination against the appellant in education and in seeking private sector employment, and its failure to ensure the implementation of the disabled person employment quota, there has been a failure of state protection. Thus, despite the existence of affirmative action legislation in relation to the right to work, the ipt found Egypt to have failed in providing sufficient state protection against discrimination in practice, as the law was not being ­implemented. The duty of progressive realisation in the context of the right to education was considered in the case of X (Re) concerning a Mexican boy suffering from epilepsy and hyperactivity.41 He had claimed asylum together with his mother and sister on the basis that the boy had been expelled from four or five schools due to his disability and behaviour. The irb held that Mexico had failed to provide a specialized form of education adapted to children with disabilities because of resource constraints and inability, rather than unwillingness. Therefore, it found that there was no failure of state protection.42 However, the irb undertook no analysis of any steps or measures taken by the Mexican state to combat discrimination against children with disabilities and to promote their right to education. As a result, it failed to recognise that the discriminatory denial of socio-​economic rights must be eradicated immediately. The applicant boy had been denied effective access to education, thus constituting a violation of the right to education of children with disabilities. Irrespective of Mexico’s financial resources, this clearly amounted to a lack of sufficient

37 38 39 40 41 42

ac (Egypt) (n 35) at paras. 77–​78. ac (Egypt) (n 35) at para. 73. ac (Egypt) (n 35) at para. 78. ac (Egypt) (n 35) at para. 89. X (Re) (Mexican single mother with son with epilepsy) (2007) MA6-​06101 (irb (Canada)). X (Re) (Mexican single mother with son with epilepsy) (n 41) in fact holding that the exception in s. 97(1)(b)(iv) of the Immigration and Refugee Protection Act applied also to education, see further on this Chapter V on Causal Link.

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state protection for the boy. The case is thus illustrative of a lack of awareness of disability-​specific obligations of state protection on the part of asylum decision-​makers. A case which illustrates the question of sufficiency of state protection in the context of medical treatment for persons with hiv/​a ids is the Canadian Federal Court decision of Gonzalez v. mci.43 The case concerned a Mexican gay man with hiv who had claimed that he would not be able to access medical treatment in Mexico. The irb had found that Mexico provided sufficient protection in the form of health care to persons with hiv. The Federal Court confirmed the irb’s finding that there was sufficiency of protection based on the following factors: Mexico was one of the countries with the lowest hiv prevalence rates in Latin America and the Caribbean; 57% of such persons were receiving treatment (even though this had sunk from 76% to 57% between 2009 and 2010); Mexico had shown its commitment to fighting the epidemic by providing universal access to anti-​retroviral treatment since 2003 and had reached all 32 states since the decentralisation of health services.44 While there was evidence of discriminatory treatment against persons with hiv/​a ids in certain hospitals, these were ‘no more than isolated instances’ not demonstrative of a systematic lack of protection.45 On this basis the Federal Court confirmed the irb’s finding that Mexico was providing sufficiency of protection by improving access to hiv treatment and fighting the epidemic.46 The analysis of the sufficiency of state protection in this case is interesting. On the one hand it refers to important data regarding the implementation of the right to health for persons with hiv in Mexico. On the other, however, it fails to give a closer look to the question whether Mexico is taking any steps against the discrimination at the hands of health professionals at (possibly also state-​run) hospitals, a failure of which would be indicative of a state unwillingness to protect. These cases illustrate the issues concerning sufficiency of state protection, which arise with particular urgency in asylum cases of persons with disabilities. 43 44 45

46

Omar Antonio Chalita Gonzalez v The Minister of Citizenship and Immigration 2011 fc 1059 (Federal Court of Canada). Omar Antonio Chalita Gonzalez v. The Minister of Citizenship and Immigration (n 43) at para. 39. Omar Antonio Chalita Gonzalez v. The Minister of Citizenship and Immigration (n 43) at para. 41 the applicant had also claimed before the irb that he would not be able to afford anti-​retroviral treatment, but this was no longer argued on appeal before the Federal Court, see para. 41. Omar Antonio Chalita Gonzalez v. The Minister of Citizenship and Immigration (n 43) at paras. 42–​43.

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The decisions in Kuthyar, X (Re) (from 2014) and ac (Egypt) all discussed above indicate how asylum courts can undertake a disability-​specific examination of sufficiency of state protection. However, the discussion above also illustrates that asylum courts regularly struggle to appreciate failure of state protection in the context of discrimination and socio-​economic rights. While asylum decision-​makers sometimes examine the lack of any steps on the part of the state towards the realisation of the rights of persons with disabilities, they often justify this with the duty of progressive realisation. The following subchapter considers what would be required in line with the vclt and a disability-​ specific interpretation of failure of state protection. The Level of State Protection and a Disability-​Specific Approach 3 3.1 Introduction The refugee definition in Art. 1A(2) Refugee Convention does not expressly provide that an applicant needs to prove that her country of origin fails to provide protection against serious harm at the hands of private actors. However, in the late 1990s as part of the changed conditions from which persons began to flee, the issue of non-​state actor persecution came to the fore.47 In this context, the question arose whether a person was a refugee if the state of origin was willing but unable to protect against serious harm. The view that only in cases of state unwillingness could applicants qualify as refugees was termed the ‘accountability theory’ rooted in principles of state responsibility.48 The opposite view that persons would also qualify as refugees in cases concerning state inability was termed the ‘protection theory’. For some time, certain states, particularly Germany, France and Switzerland, signed up to the accountability theory.49 However, the EU Qualification Directive has harmonised the approach to state protection across Europe, providing for the protection theory in Art. 6(c).50 47

Julian M Lehmann, ‘Availability of Protection in the Country of Origin: An Analysis under the EU Qualification Directive’ in Bauloz, Céline and others (eds), Seeking Asylum in the European Union: Critical Perspectives on the Second Phase of the Common European Asylum System (Brill/​Martinus Nijhoff Publishers 2015) 116; for a general summary of the debate at the time see Kälin, Walter, ‘Non-​State Agents of Persecution and the Inability of the State to Protect’ (2001) Georgetown Immigration Law Journal 415; and also Volker Türk, ‘Non-​State Agents of Persecution’ in Vincent Chetail and Vera Gowlland-​Debbas (eds), Switzerland and the International Protection of Refugees (Kluwer Law International 2002). 48 Kälin, Walter (n 47) 417 et seq.; Türk (n 47) 99–​101. 49 See for instance Türk (n 47) 99–​101; for an early critique of the French, German and Swiss approaches see Kälin, Walter (n 47). 50 Council Directive 2004/​ 83/​ EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection

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Switzerland has followed suit.51 The protection theory is therefore now the predominant approach. However, as has been seen in subchapter iv.B.2 above, uncertainty persists in practice firstly as to what level of protection is required in respect of low-​level state agents. Secondly, in the case of non-​state actor persecution, the question is when an inability of the state to protect amounts to failure of state protection. Given that no state is able to protect everyone within its jurisdiction perfectly against all harms and human rights violations, the question is what level of protection can be expected from the state. As will be seen further below, certain states have developed a presumption of state protection in relation to certain countries of origin or have relied on ‘due diligence’ standards as benchmark for the sufficiency of state protection. On such an approach, if states have acted in due diligence and taken appropriate steps in order to protect from persecution, there is no well-​founded fear –​ even if the applicant will be at a real risk of persecution on return despite these appropriate steps. Contrarily, certain states apply a ‘real risk’ approach and consider whether state protection is such as to eliminate a real risk of persecution. The question is thus, which one is supported by a vclt-​compliant and disability-​specific interpretation of the refugee definition. 3.2 Interpretation according to Arts. 31 and 32 vclt (Drafting History) Given that there is no express textual basis in Art. 1A(2) Refugee Convention for the requirement of ‘failure of state protection’, the first question is whether there is any implicit literal basis for the interpretation of the ordinary meaning of it. There are two approaches to this question. The starting point of both is that the refugee definition does not expressly stipulate the source of the harm.52 This has been taken as an indication that both state and non-​state Granted, OJ L 204/​12, 30 September 2004; the same applies in the recast version of it, see Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/​9, 20 December 2011. 51 Francesco Maiani, ‘La Définition de Réfugié Entre Genève, Bruxelles et Berne  –​ Différences, Tensions, Ressemblances’, Schweizer Asylrecht, EU-​Standards und internationales Flüchtlingsrecht: Eine Vergleichsstudie (Stämpfli Verlag ag 2009) referring, inter alia, to the fac judgment of 18 August 2008 (D-​6551/​2006) confirming the protection rather than accountability theory, in which the fac took into account the developments at EU level and in particular the EU Qualification Directive. 52 Guy Goodwin-​Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2007) 98; and see unhcr, Handbook and Guidelines on Procedures and

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actor persecution are covered by it, as the focus of the refugee definition lies on the actual persecution, rather than the identity of its perpetrator.53 In relation to an implicit basis, two different parts of the refugee definition have been identified by scholars and courts as providing an interpretive hook for the ordinary meaning of state protection. One interpretation is that advanced by Goodwin-​Gill and McAdam as well as Kälin, rooting the requirement of lack of state protection within the following terms of the refugee definition: that an applicant is ‘unable or […] unwilling to avail himself or herself of the protection of the State or government’.54 The second approach has for instance been endorsed by Hathaway and Foster. They argue that the basis for the requirement of failure of state protection can be found in the formulation ‘well-​founded fear of being persecuted’.55 As already briefly mentioned in subchapter iii.A of this book, the term ‘being persecuted’ has been interpreted as involving two aspects, as Lord Hoffmann put it in Shah and Islam: ‘Persecution = Serious Harm + The Failure of State Protection’.56 On this approach, an analysis of the risk of being persecuted

53

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Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​1P/​4/​e ng/​r ev 3, December 2011) at paras. 65, 98. See for instance Türk (n 47) 103 noting that nothing in the actual wording of the refugee definition limits it to state persecution, the wording suggesting rather that the refugee definition ‘encompasses all forms of persecution, irrespective of its source or the actual condition of State structures’; Kälin, Walter (n 47) 430 observes that the refugee definition is sufficiently flexible for such an interpretation. Goodwin-​Gill and McAdam (n 52) 99; Kälin, Walter (n 47) 427–​428 noting that there are ‘strong reasons for an interpretation of the text […] giving the notion of “protection” in the “unable to avail himself …”-​clause an extended meaning that covers internal protection, too’ as this would be a ‘logical extension of the original idea of the drafters’ that persecution and lack of state protection are the two core requirements of the refugee definition; see also to this effect Mark Symes and Peter Jorro, Asylum Law and Practice (2nd edn, Bloomsbury Professional 2010) 267 mn 5.2. Hathaway and Foster (n 1) 295, 318. Islam v SSHD; R v IAT, ex p Shah [1999] 2 ac 629 (UK House of Lords) at 653F (Lord Hoffmann); this is also the analysis regularly postulated in scholarship, see e.g. Hathaway and Foster (n 1) 292–​297; Andreas Zimmermann and Claudia Mahler, ‘Article 1 A, Para. 2’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Oxford University Press 2011) 345 mn 216–​217 stating that persecution can be described ‘as the severe violation of human rights accompanied by a failure of the State to protect the individual’; Jason Pobjoy, The Child in International Refugee Law (Cambridge University Press 2017); however, some argue that persecution and failure of state protection are separate but ‘interrelated elements’, see Goodwin-​Gill and McAdam (n 52) 92; this approach has been criticised by Daniel Wilsher, ‘Non-​State Actors and the Definition of a Refugee in the United Kingdom: Protection, Accountability or Culpability?’ (2003) 15 International Journal of Refugee Law 68, 80–​90.

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requires an examination of the nature of the risk and of the nature of the state response, as only the combination of the two gives rise to persecution.57 This approach is based on the argument that the ordinary meaning of ‘being persecuted’ indicates that the state is failing to protect an applicant. As Hathaway and Foster have observed:58 It would surely strain the language of the definition to assert that every time a person is at risk of a serious form of harm, he or she faces a risk of “being persecuted”, since a risk of being persecuted implies an element of persistence, relentlessness, or inescapability which is only present if the state is unwilling or unable to protect against the risk of harm. This second approach is inconsistent with a ‘due diligence’ approach, as it focuses on the real risk of serious harm, rather than the steps which a state might have taken to eliminate harm. Even where a state has taken all appropriate steps to eliminate the harm, but there is still a real risk, on this holistic approach, the state has failed to protect the applicant from harm, thus making her a refugee. As regards a contextual interpretation of the state protection requirement, the second approach is supported by a holistic analysis of the entire refugee definition (including its object and purpose also). This provides enlightening context for the enquiry into the meaning of state protection. As Lambert has pointed out, it is necessary to refer to the risk of serious harm and the well-​ foundedness of the fear when assessing the standard of state protection.59 Only if there is a lack of state protection, is the fear of persecution also well-​ founded.60 A further contextual argument, which undermines a ‘due diligence’ approach, relates to Art. 33(1) Refugee Convention. Husain notes that a due diligence approach or a standard as the one set out by the House of Lords in Horvath ‘appears inconsistent with the central guarantee’ against refoulement in Art. 33 Refugee Convention.61 Indeed, it would be contradictory, if a better 57 58 59 60 61

Hathaway and Foster (n 1) 293. Hathaway and Foster (n 1) 293. Hélène Lambert, ‘The Conceptualisation of “Persecution” by the House of Lords: Horvath v Secretary of State for the Home Department’ (2001) 13 International Journal of Refugee Law 16, 30. Hathaway and Foster (n 1)  318; see also Horvath v Secretary of State for the Home Department (n 1) 497–​498 (Lord Hope); Applicant A v Minister for Immigration and Ethnic Affairs High Court of Australia [1997] hca 4 (Dawson J). Raza Husain, ‘International Human Rights and Refugee Law:  The United Kingdom’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee

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protection standard applied under Art. 33 Refugee Convention –​which prohibits the expulsion of someone who has qualified as a refugee to a place where her life or freedom is threatened –​than under the preliminary enquiry under Art. 1A(2) Refugee Convention.62 As regards the object and purpose of the ‘failure of state protection’ requirement, it has been noted in the context of the debate about the accountability and protection theories that the accountability theory, applying principles of the international law on state responsibility, is not compatible with the humanitarian spirit of the refugee definition.63 In particular, there is a need for the definition to adapt to ‘changed factual circumstances that have occurred in the period since their conclusion, as well as the entire legal regime prevailing at the time of interpretation’.64 The same argument can be made in relation to a ‘due diligence’ approach to the level of state protection. It has been pointed out that such a due diligence standard derived from principles of state responsibility is at odds with the humanitarian aim of the Refugee Convention.65 As Hathaway and Foster point out:66 The ultimate question in refugee law is not whether the home state has satisfied any particular standard –​the home state’s responsibility not being the subject of the inquiry –​but whether it is in fact able to protect against a risk of serious harm. Similarly, Türk notes that notions of the law on state responsibility, such as due diligence, have no place in international refugee law, which is not concerned with the consequences of internationally wrongful acts, but with a humanitarian protection objective.67 Due diligence has been described as a concept that is ‘best suited to determining whether punishment or penalty is warranted, with no obvious relevance to the prevention inquiry at the heart of refugee status determination’.68 Moreover, due diligence relates to a duty of process,

62 63 64 65 66 67 68

Definition  –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 146; see also Türk (n 47) noting in the context of arguments against the accountability theory that Art. 33 Refugee Convention is not limited to state persecution. Husain (n 61) 146. Kälin, Walter (n 47) 430. Türk (n 47) 104–​105. Hathaway and Foster (n 1) 314. Hathaway and Foster (n 1) 314. Türk (n 47) 105. Penelope Mathew, James C Hathaway and Michelle Foster, ‘The Role of State Protection in Refugee Analysis’ (2003) 15 International Journal of Refugee Law 444, 451.

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not result, which is designed to accommodate a different aim in international human rights law than in international refugee law.69 The purpose of the refugee definition is to protect persons fleeing persecution where the state is either unable or unwilling to protect. The problem with a sufficiency of state protection approach which applies a ‘due diligence’ standard is that ‘it cannot be reconciled to the widely established position that a failure of state protection is present where either the state is unwilling or unable’.70 Given that the relevant question pursuant to Art. 1A(2) Refugee Convention is whether the person has a ‘well-​founded fear of being persecuted’, a ‘real risk’ approach would conform better to the protective object and purpose of the refugee definition.71 Given that the primary means of interpretation do not clearly indicate what standard of protection is required of state protection, it is necessary to consider supplementary means of interpretation. As regards the travaux préparatoires, it has been observed that the drafting history does not ‘say much about the source of the persecution feared by the refugee, and no necessary linkage between persecution and government authority is formally required’.72 Türk further notes that for historical reasons the focus of the drafters of the Refugee Convention would have been on persecution from the state or approved by the state,73 so that it is not surprising that the travaux are ‘basically silent on the agent of persecution issue and do not reflect a discussion on a possible restriction that would stem from any tight correlation between the risk of persecution and the State’.74 However, Goodwin-​Gill and McAdam refer to the work of the Ad hoc Committee drafting the Refugee Convention in 1950 and note that it was observed there that the term ‘unable to avail himself or herself’ of state protection referred ‘primarily to stateless refugees but includes also refugees possessing a nationality who are refused passports or other protection by their own government’.75 In relation to this, Kälin has observed that the historical background of the Refugee Convention and textual considerations suggest that the terms ‘unable or unwilling to avail himself’ of protection related to diplomatic or consular protection in the state of asylum.76 But he also points out that the 69 70 71 72 73 74 75 76

Hathaway and Foster (n 1) 314. Hathaway and Foster (n 1) 311–​312 (original emphasis). Hathaway and Foster (n 1) 314. Goodwin-​Gill and McAdam (n 52) 98. Türk (n 47) 102. Türk (n 47) 103. ‘Report of the Ad Hoc Committee’ [1950] un Doc E/​1618 at para. 39, cited in Goodwin-​Gill and McAdam (n 52) 99 fn 229. Kälin, Walter (n 47) 426, see also Gleeson CJ referring to this in Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14 (High Court of Australia) at para. 21;

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historical meaning of the clause has ‘lost its original function of securing basic rights to aliens at a time when international human rights were virtually non-​ existent’.77 He also argues in favour of using this as a basis for extending the refugee definition to cover the inability of the state to protect.78 However, beyond confirming that there is no explicit textual basis and that a requirement of state protection can be read into the refugee definition, the drafting history is of limited assistance in delineating the contours of the ‘failure of state protection’. In accordance with the principle of effectiveness in treaty interpretation, the due diligence standard is also highly problematic, as ‘due diligence’ obligations in international human rights law remain vague and there is a ‘lack of a uniform and clearly articulated due diligence standard’ and varies in different contexts.79 It has been noted that ‘the Refugee Convention is not concerned with formalities but rather with the reality of risk’, so that protection is only relevant if it obviates the risk.80 The focus should instead rest on whether state protection is effective, meaningful or adequate,81 or whether there is a ‘real chance’ of the harm occurring which is the usual well-​founded fear test.82 These first elements of interpretation, particularly the ordinary meaning, context, object and purpose, and the principle of effectiveness all support an approach to state protection, which takes the existence of a ‘real risk’ of persecution as the benchmark and does not rely on a state’s ‘due diligence’ efforts in trying to eliminate the harm. However, the following subchapter will explore the practice of unhcr and states in relation to these two approaches. 3.3

Interpretation according to Art. 32 vclt (unhcr Practice and State Practice) In relation to the practice of unhcr, the UN agency embraced the protection theory in its Handbook, recognising that persecution can emanate

77 78 79 80 81 82

this was also pointed out by Antonio Fortin, ‘The Meaning of Protection in the Refugee Definition’ (2000) 12 International Journal of Refugee Law 548, 551; and was criticised in unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ April 2001 at para. 35  . Kälin, Walter (n 47) 427–​428. Kälin, Walter (n 47) 427–​430; see also Zimmermann and Mahler (n 56) 368 mn 306; and Gleeson J in Minister for Immigration and Multicultural Affairs v Khawar (n 76) at para. 22. Hathaway and Foster (n 1) 315. Mathew, Hathaway and Foster (n 68) 448. Hathaway and Foster (n 1) 316. Hathaway and Foster (n 1) 319.

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both from the state and from the population, if authorities prove unable or unwilling to offer protection.83 In relation to low-​level state official action, unhcr has set out the test for deciding whether this amounts to state persecution as follows in its International Protection Guidelines No. 7 on victims of trafficking:84 There may also be situations where trafficking activities are de facto tolerated or condoned by the authorities or even actively facilitated by corrupt State officials. In these circumstances, the agent of persecution may well be the State itself, which becomes responsible, whether directly or as a result of inaction, for a failure to protect those within its jurisdiction. Whether this is so will depend on the role played by the officials concerned and on whether they are acting in their personal capacity outside the framework of governmental authority or on the basis of the position of authority they occupy within governmental structures supporting or condoning trafficking. In the latter case, the persecutory acts may be deemed to emanate from the State itself. In relation to private actor persecution, unhcr accepts that situations with a lack of ‘effective protection’ against non-​state persecution fall within the scope of Art. 1A(2) Refugee Convention.85 In its International Protection Guidelines No. 8 on child asylum claims, unhcr has set out the necessary level of sufficiency of state protection.86 It is necessary that there is a ‘legal system that criminalizes and provides sanctions for the persecutory conduct’ and that ‘authorities ensure that such incidents are effectively investigated and that those

83

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85 86

unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 52) at para. 65; similarly see unhcr, UN High Commissioner for Refugees (unhcr), Guidelines on International Protection No. 1:  Gender-​Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​g ip/​02/​01, 7 May 2002) at para. 19; see also Türk (n 47) 97. unhcr, Guidelines on International Protection No. 7:  The Application of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (un Doc hcr/​g ip/​06/​07, 7 April 2006) at para. 24 (emphasis added). Türk (n 47) 98. unhcr, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​g ip/​09/​08, 22 December 2009) at para. 38.

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responsible are identified and appropriately punished’.87 The mere enactment of legislation in itself is therefore insufficient.88 While unhcr continues to refer to ‘available and effective’ protection,89 it has referred to the ‘due diligence’ standard in the subsequent International Protection Guidelines No. 9 on claims based on sexual or gender identity:90 State protection would normally neither be considered available nor effective, for instance, where the police fail to respond to requests for protection or the authorities refuse to investigate, prosecute or punish (non-​State) perpetrators of violence against lgbti individuals with due diligence. Further, laws actively criminalising same-​sex relations are ‘normally a sign that protection of lgb individuals is not available’ and that applicants cannot be expected to seek state protection, leading to a presumption of unwillingness or inability to protect.91 In the same guidelines, unhcr has also set out what is required regarding the enforcement of anti-​discrimination laws in the country of origin. In particular, a failure to enforce anti-​discrimination laws may promote entrenched prejudice.92 unhcr points out that a ‘de facto, not

87 88 89 90 91 92

unhcr, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees (n 86) at para. 38 (emphasis added). unhcr, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees (n 86) at para. 38 (emphasis added). unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 4) at para. 36. unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 4) at para. 36. unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 4) at para. 36. unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 4) at para. 37; see also unhcr, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (n 84) at para. 22 stating that it is necessary to examine whether mechanisms to prevent and combat trafficking ‘are effectively implemented in practice’.

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merely de jure, change is required and an analysis of the circumstances of each particular case is essential’.93 Similarly, unhcr has stressed in the context of trafficking:94 The mere existence of a law prohibiting trafficking in persons will not of itself be sufficient to exclude the possibility of persecution. If the law exists but is not effectively implemented, or if administrative mechanisms are in place to provide protection and assistance to victims, but the individual concerned is unable to gain access to such mechanisms, the State may be deemed unable to extend protection to the victim, or potential victim, of trafficking. unhcr thus generally endorses an approach which provides for effective protection eliminating any real risk of persecution. However, some reference remains to ‘due diligence’ in the context of state investigation, prosecution and punishment of private actor persecution. As regards state practice, again two aspects are considered here: willingness to protect against low-​level state persecution and ability to protect against private actor persecution. In relation to low-​level state persecution, it is accepted that where subordinate or localised arms of the government or state officials are responsible for the acts, and the state takes no action against this, this demonstrates an unwillingness of the state to protect.95 As regards the second question, there is a general consensus amongst states concerning

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unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 4) at para. 37; see also unhcr, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (n 84) at para. 22 stating that it is necessary to examine whether mechanisms to prevent and combat trafficking ‘are effectively implemented in practice’. unhcr, Guidelines on International Protection No. 7:  The Application of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (n 84) at para. 23. For Australia see WAKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] fcafc 32 (Federal Court of Australia) at para. 25; for Canada see Rodriguez v Canada (Minister of Citizenship and Immigration) [1996] fcj 283 (Federal Court of Canada) at para. 24; for New Zealand see Refugee Appeal No 71427/​99 [2000] nzar 545 (New Zealand rsaa); for the UK see Horvath v Secretary of State for the Home Department (n 1) 497–​498 (Lord Hope); for the US see Zheng v Mukasey 552 F.3d 277, 278 (US Court of Appeals for the Second Circuit).

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unwillingness to protect. Persons fleeing private actor persecution, which is instigated, condoned or tolerated by the state, are refugees.96 Where the state is unwilling to protect against private actor persecution, ‘there is no further need to inquire into its ability to protect as there will clearly be a real chance that the state will not protect against the risk of serious harm’.97 However, disagreement persists regarding a state’s inability to protect against private actor persecution. As has been pointed out at the outset of this subchapter, there are two different approaches in the jurisprudence of the states studied here regarding the inability to protect against private actor persecution. One focuses on the state system in place to provide protection (the ‘due diligence’ approach), the other focuses on the actual protection likely to be provided to the person concerned (the ‘real risk’ approach).98 Canada is a proponent of the former, focusing on the state system of protection in the country of origin rather than the actual risk that arises for the person concerned. The second approach is elaborated most fully in New Zealand, which focuses on the real risk that still arises for the person concerned. The remaining jurisdictions lie somewhere on the spectrum between these two positions. In Canada, a presumption of state protection was introduced by the Supreme Court in Ward.99 This means that ‘except in situations of complete breakdown of the state, it should be assumed that the state is capable of protecting a claimant’.100 The Canadian Supreme Court in Ward recognised that this approach increased the burden of proof on applicants, but it was of the view that it would not render refugee protection illusory.101 However, in subsequent case law, the Federal Court has sometimes applied an ‘effective protection’ test, finding that ‘evidence of improvement and progress made by the state is not proof that the current measures amount to effective protection’.102 96

For Australia see Minister for Immigration and Multicultural Affairs v Khawar (n 76)  at para. 25; for New Zealand see Refugee Appeal No. 71427/​99 (n 95) at paras. 60–​61; for the UK see Svazas v Secretary of State for the Home Department [2002] ewca Civ 74 (UK Court of Appeal) at paras. 53–​54 (Brown lj); for the US see Sarhan v Holder (2011) 658 F.3d 649 (US Court of Appeals for the Seventh Circuit) 657–​658; all cited in Hathaway and Foster (n 1) 299–​300; and for an early observation in this respect see Walter Kälin, ‘Non-​State Agents of Persecution and the Inability of the State to Protect’ (2000) 15 Georgetown Immigration Law Journal 415, 416. 97 Hathaway and Foster (n 1) 297; see also Zimmermann and Mahler (n 56) 367 mn 304. 98 Lehmann (n 47) 113; Pobjoy (n 56) 110–​115; Hathaway and Foster (n 1) 307–​319. 99 Canada (Attorney General) v Ward [1993] 2 scr 689 (Supreme Court of Canada). 100 Canada (Attorney General) v Ward (n 99) (La Forest J). 1 01 Canada (Attorney General) v Ward (n 99) (La Forest J). 102 Zoltan Csonka et al v Canada (Citizenship and Immigration) 2012 fc 1056 (Federal Court of Canada) at para. 1.

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Furthermore, some case law indicates that state efforts to address state measures such as prevention and investigation of crime need to be examined in order to determine the existence of sufficient state protection. In particular, the Federal Court in Garcia rejected a ‘due diligence’ standard and stated:103 It cannot be said that a state is making “serious efforts” to protect women merely by making due diligence preparations to do so, such as conducting commissions of inquiry into the reality of violence against women, the creation of ombudspersons to take women’s complaints of police failure, or gender-​equality education seminars for police officers. Such efforts are not evidence of effective state protection which must be understood as the current ability of a state to protect women. There is thus a tendency to move away from the stricter presumption of state protection standard towards an ‘effective protection’ standard in ­Canadian case law, but a presumption of state protection approach still prevails.104 In Australia, the standard of sufficient state protection is that ‘of a reasonably effective police force and a reasonably impartial system of justice’.105 There is no requirement of ‘complete efficacy’ and the state is not required ‘to act immediately’.106 This is also akin to a ‘due diligence’ approach and the High Court defined the sufficiency of state protection as ‘a failure to meet the standards of protection required by international standards’,107 language which is reminiscent of the ‘due diligence’ approach.

103 Garcia v Canada (Minister of Citizenship and Immigration) [2007] 4 fcr 385 (Federal Court of Canada) at para. 14. 104 See the analysis in Udara Jayasinghe and Sasha Bagley, ‘Protecting Victims of Human Trafficking Within a “Non-​Refoulement” Framework:  Is Complementary Protection an Effective Alternative in Canada and Australia?’ (2011) 23 International Journal of Refugee Law 489. 105 In relation to rogue state actor persecution SZDWR v Minister For Immigration & Multicultural & Indigenous Affairs [2006] fcafc 36 (Federal Court of Australia) at para. 18; in relation to private actor persecution Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/​2003 [2004] hca 18 (High Court of Australia) at para. 28. 106 SZDWR v Minister For Immigration & Multicultural & Indigenous Affairs (n 105) at para. 18; Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/​2003 (n 105) at para. 26. 107 Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/​2003 (n 105) at para. 27.

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In the UK, a similar standard has been developed by the House of Lords in Horvath.108 The House of Lords expressly rejected an evaluation of the real risk of harm, focusing instead on the protection system in place:109 Sufficiency of state protection is not measured by the existence of a real risk of an abuse of rights but by the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate it. However, subsequent case law has softened the edges around this rather harsh approach.110 Indeed, Husain points out that decisions after Horvath have ‘honoured Horvath in the breach, focusing on the central issue of risk of relevant harm’.111 Similarly, Lehmann notes that although ‘there clearly remain elements of the state responsibility approach to “protection analysis” in the UK case law on non-​state actors’, there has been particularly rigorous scrutiny on the part of the courts concerning reliance on general factors of protection which were not related to the individual applicant’s case.112 For instance, it has been held that a prevalence of discriminatory attitudes towards women and ‘the fact that such attitudes survive is evidence of the State’s reluctance or inability to stamp them out’.113 Accepting that it was unlikely that the ‘arm of the state operates with consistent force throughout the country’, a lack of effective state protection was found.114 In addition, the UK courts have stressed that the availability of remedies after ill-​treatment do not provide adequate protection against future ill-​treatment, unless there is an effective victim protection scheme.115

1 08 Horvath v Secretary of State for the Home Department (n 1). 109 Horvath v Secretary of State for the Home Department (n 1) (Lord Clyde). 110 In the subsequent decision in Bagdanavicius & Anor, R (On the Application of ) v Secretary of State for the Home Department [2003] ewca Civ 1605 (UK Court of Appeal) at para. 4 the Court of Appeal held that ‘an ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-​treatment’ is sufficient. 111 Husain (n 61)  146, referring to Noume (Souad) v SSHD [2001] inlr 526 (UK Court of Appeal) in which it was held that sufficiency of protection did not pertain merely because law enforcement agencies are doing their best; Svazas v Secretary of State for the Home Department (n 96). 112 Lehmann (n 47) 131. 113 md (Women) Ivory Coast cg [2010] ukut 215 (iac) (UK Upper Tribunal (Immigration and Asylum Chamber)) at para. 276. 114 md (Women) Ivory Coast cg (n 113) at para. 276. 115 Kinuthia v Secretary of State for the Home Department [2001] ewca Civ 2100 (UK Court of Appeal); ab ( Jamaica) cg [2007] ukait 00018.

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In the US, the ‘well-​founded fear of persecution’ standard is applied. Sufficiency of state protection exists where the state has taken measures that reduce the risk of claimed harm below the well-​founded fear threshold.116 The mere outlawing of a practice does not per se amount to sufficiency of protection, particularly where the law is either not implemented in practice or violations are ‘pervasive and uncontrolled’.117 The threshold applied is thus an ‘effective protection’ or ‘real risk’ approach. The most generous standard regarding sufficiency of state protection is the one employed in New Zealand, where the ipt held in the case of bg (Fiji):118 Where this status arises because serious harm is anticipated to arise due to a failure of state protection, the fact that the state has done what it reasonably could to avoid that situation provides no answer to the claimant‘s predicament. It is precisely because either agents of the state are the cause of the anticipated serious harm, or are simply unable despite the good faith discharge of their obligations to provide effective protection from serious harm inflicted by non-​state agents, that international protection may be required. The Tribunal thus rejected the UK approach in Horvath, finding that the only relevant question is whether the protection which is available will reduce the risk of serious harm below the level of a ‘real chance’ of serious harm’.119 While this does not amount to a duty to eliminate all risk of harm, the threshold is that of whether there is a real risk of harm.120 Finally, under the EU Recast Qualification Directive, the approach to sufficiency of state protection is still somewhat unclear. Art. 7(2) Recast Qualification Directive provides that protection is generally provided, where actors of protection ‘take reasonable steps to prevent the persecution or suffering of serious harm, inter alia by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious 1 16 117 118 119

Deborah Anker, Law of Asylum in the United States (Thomson Reuters 2015) 255–​256. Anker (n 116) 259, referring inter alia to Sarhan v Holder (n 96). bg (Fiji) *Precedent* [2012] nzipt 800091 (New Zealand ipt) at para. 117. Bruce Burson, ‘Give Way to the Right: The Evolving Use of Human Rights in New Zealand Refugee Status Determination’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 41–​42. 120 Burson (n 119)  42, referring to Refugee Appeal No. 71427/​99 (n 95)  at para. 66; bg (Fiji) *Precedent* (n 118)  at para. 113; this has also been described as the ‘alleviation of risk’ approach, see Pobjoy (n 56) 114–​115.

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harm, and the applicant has access to such protection’. Lehmann notes that this is ‘clearly influenced by Lord Clyde’s standard of protection developed in Horvath’.121 This has not yet been at the centre of a dispute before the cjeu. However, the Court considered the predecessor provision of Art. 7(2) Recast Qualification Directive, namely Art. 7(2) of the Qualification Directive, in the case of Abdulla concerning the cessation of refugee status pursuant to Art. 11 of the Qualification Directive. The wording of Art. 7(2) and also Art. 4(3), which was considered by the Court, is identical in all relevant respects under the Qualification Directive and its Recast. The cjeu linked Art. 7(2) to Art. 4(3) Qualification Directive, which provides that decision-​makers may take into account ‘the laws and regulations of the country of origin and the manner in which they are applied, and the extent to which basic human rights are guaranteed in that country’.122 The Court thus considered that the implementation of laws in practice and the respect for human rights were pertinent for an assessment of the level of state protection.123 This therefore indicates that the cjeu is also tending towards an effective protection approach and not a mere ‘due diligence’ standard.124 The above overview of unhcr and state practice has shown that there is no consistent practice on the level of protection which is required of states in the case of private actor persecution. However, the practice of unhcr and the majority of states, particularly Australia, New Zealand, the UK, the US and the approach under the EU Recast Qualification Directive, indicates that at least ‘effective protection’ must exist and state practice is tending towards a ‘real risk’ approach. In any event, both the ‘due diligence’ or ‘presumption of state protection’ approach and the ‘real risk’ approach take into account what level of protection must be guaranteed under international human rights law. Indeed, state protection under the refugee definition is linked to international human rights standards, given that in refugee law, protection is ‘not provided against all breaches of rights, but only those violations that states have a duty

1 21 Lehmann (n 47) 120. 122 Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland C-​175/​08, C-​176/​08, C-​178/​08 and C-​179/​08, judgment of 2 March 2010 (cjeu) at para. 71. 123 Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland (n 122) at para. 71. 124 As Lehmann observes, the general human rights situation in a country of origin may also be instructive in relation to the level of state protection, where those human rights do not relate to the harm feared Lehmann (n 47) 125.

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to prevent’.125 Furthermore, as the New Zealand ipt has pointed out, once the relevance of international human rights law is recognised, it is clear that the crpd must be consulted in cases concerning persons with disabilities as regards the failure of state protection.126 3.4

Interpretation according to Art. 32 vclt (International Human Rights Law) In this subchapter, the pertinent standards under international human rights law and particularly the crpd will be set out, as a further supplementary means of interpretation. This exposition of relevant protection standards under the crpd will exhibit that the current case law on persons with disabilities entirely fails to take into consideration the state protection obligations which arise in international human rights law. In international human rights law, states have an obligation to protect, which includes an obligation of ‘due diligence’, ‘so as to prevent human rights violations by all persons within its jurisdiction’.127 As McCorquodale points out:128 This obligation of due diligence is a positive obligation on a state, demanding considerable state resources, to undertake fact-​finding, criminal investigation and, perhaps, prosecution in a transparent, “accessible and effective manner”, and to provide redress. The crpd spells out the obligations which it imposes on states in quite some detail. The main provision on state obligations arising under the crpd is its Art. 4 on general obligations and Art. 5 on equality and non-​discrimination. In addition, substantive crpd Articles complement these by setting out state obligations in relation to specific individual rights. The following will provide a summary of the state obligations which arise under the crpd and which illustrates what would be required by way of ‘due diligence’ in state protection under international human rights law.

125 Anker (n 116) 239–​240, also cited in Pobjoy (n 56) 111; generally see Mathew, Hathaway and Foster (n 68). 126 ac (Egypt) (n 35)  at para. 70; generally for international human rights violations, see Refugee Appeal No 74665 [2005] nzar 60 (New Zealand rsaa) at para. 69. 127 Robert McCorquodale, ‘Non-​State Actors and International Human Rights Law’ in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar Publishing 2010) 105. 128 McCorquodale (n 127) 105.

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The focus of the state obligations under the crpd lies on the eradication of discrimination of any kind on the basis of disability.129 In addition to the well-​known state obligations to adopt ‘all appropriate legislative, administrative and other measures’ for its implementation, states are required to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.130 In addition the implementation of the crpd and of policies affecting persons with disabilities has to be done in close consultation and with the active involvement of persons with disabilities.131 States have to ensure that public authorities and institutions act in accordance with the crpd and that all policies and programmes take into account the crpd.132 Pursuant to Art. 5 crpd states have to prohibit all discrimination on the basis of disability. In particular, legislation is essential to combat de jure discrimination, such as discrimination against persons with disabilities.133 This includes ensuring that equal and effective legal protection against discrimination on all grounds to persons with disabilities must be taken, and states must take ‘all appropriate steps to ensure that reasonable accommodation is provided’.134 However, legislation is not in itself enough. Other appropriate measures include judicial or other effective remedies, ‘administrative, financial, education or informational campaigns and social measures’.135 Public officials are not only persons working for the police force, the military or the judiciary, but these are also health care professionals in public hospitals or social workers in public institutions. In addition, state involvement is also presumed in the context of private hospitals, private institutions or detention centres.136 This has been expressly addressed by the UN 129 The chapeau of Art. 4(1) provides that states undertake to ‘ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability’. 130 Art. 4(1)(a) and (b) crpd. 131 Art. 4(3) crpd. 132 Art. 4(1)(c) and (d) crpd. 133 Manisuli Ssenyonjo, ‘Economic, Social and Cultural Rights:  An Examination of State Obligations’ in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar Publishing 2010) 45. 134 Art. 5(2) and (3) crpd; further affirmative action is permitted to accelerate or achieve de facto equality of persons with disabilities and does not constitute discrimination, see Art. 5(4) crpd. 135 Ssenyonjo (n 133) 45. 136 UN General Assembly, ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ un Doc A/​63/​ 175, 28 July 2008 at para. 51.

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Special Rapporteur on Torture, Manfred Nowak. The Special Rapporteur has stressed that for instance ‘custodial rape constitutes torture if carried out by or at the instigation of or with the consent or acquiescence of public officials, including officials working in hospitals, care institutions and the like’.137 Thus, in relation to several of the cases set out in subchapter iv.B.2 above, there was a state failure to ensure that public authorities and institutions, such as hospitals or schools, do not discriminate against persons with disabilities. While these cases were considered as instances of private persecution and state inability to protect, they in fact concerned state unwillingness to offer protection by low-​level officials. In addition, in many instances discrimination is part of a societal attitude of stigma and discrimination against persons with disabilities, against which the state is taking no action. It is difficult to argue that in such contexts, the acts of low-​level state officials are in a personal capacity rather than an official one. Even if, however, a ‘due diligence’ approach were applied to these cases, the state obligations which arise under the crpd would not have been met in the case law above, as the following provisions demonstrate. In relation to discrimination at the hands of private actors, states are under an obligation to ‘take all appropriate measures to eliminate discrimination on the basis of disability’.138 Additionally, positive obligations apply to the training for professionals and staff working with persons with disabilities in rights under the crpd.139 This requires both the enactment of laws and policies to implement the crpd, as well as the allocation of sufficient budgets for the aim of implementing these measures.140 137 UN General Assembly (n 136) at para. 67; see also UN Human Rights Council, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez’ un Doc A/​h rc/​22/​53, 1 February 2013 at para. 25; and see the UN Committee Against Torture, ‘General Comment No. 2: Implementation of Article 2 by States Parties’ un Doc cat/​c /​g c/​2, 24 January 2008 at para. 15 stating that State responsibility extends to the acts and omissions of ‘officials and others, including agents, private contractors, and others acting in official capacity or acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law’. 138 Art. 4(1)(e) crpd. 139 Art. 4(1)(i) crpd. 140 Holger Kallehauge, ‘General Themes Relevant to the Implementation of the UN Disability Convention into Domestic Law: Who Is Responsible for the Implementation and How Should It Be Performed?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (Martinus Nijhoff Publishers 2009) 208.

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Measures are particularly necessary in the context of private actors. Discrimination against persons with disabilities is often too narrowly understood as occurring merely in the fields of education or employment. A wide interpretation of Art. 5 crpd is called for in order to ‘capture the full ambit of the lived experience of disability discrimination, and correspondingly to remove as many of these barriers as possible’.141 Indeed, ‘the effects of disability-​based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services’.142 States have to exercise ‘due diligence to prevent, punish, investigate, or redress the harm caused’ by such acts at the hands of non-​ state actors.143 This requires remedies that go beyond financial compensation and lead to a change in behaviour in people who discriminate against persons with disabilities, such as injunctive powers, penalties and other dissuasive sanctions.144 Furthermore, the crpd imposes obligations to raise public awareness in order to address ‘some of the underlying determinants of disability discrimination’ and to ‘dismantle barriers hindering the effective enjoyment of rights by persons with disabilities by addressing a broad spectrum of accessibility concerns’ such as physical, technological, information, communication, economic and social accessibility barriers, in Art. 9 crpd.145 In addition to the prohibition of discrimination the awareness-​raising duties in Art. 8 crpd and the accessibility obligations in Art. 9 crpd are ‘general measures aimed at eliminating discrimination and promoting participation and inclusion through transformation of social and environmental structures, as well as entrenched ideologies’.146 Indeed the duty to raise awareness under Art. 8 crpd is a novel formulation of aspects of the prohibition of discrimination, as discrimination cannot be ‘combated without awareness-​raising among all sectors of 141 Jessica Lynn Corsi, ‘Article 5: Equality and Non-​Discrimination’ in Michael A Stein, Ilias Bantekas and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018) 161. 142 cescr, ‘General Comment No. 5: Persons with Disabilities’ un Doc E/​1995/​22 (9 December 1994) at para. 15. 143 Rachele Cera, ‘Article 5 [Equality and Non-​Discrimination]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 166. 144 Cera (n 143) 167. 145 Michael Ashley Stein and Janet E Lord, ‘Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 28–​29. 146 Cera (n 143) 171–​172.

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government and society’.147 It imposes obligations both to counter stereotypes and to promote positive images of disability and ‘to raise awareness of the contribution and potential of disabled people’.148 Thus, even if for instance the health care professionals in the cases discussed above were private actors, the state would have likely failed in its obligation to exercise due diligence to prevent, punish, investigate or redress the harm caused by widespread discrimination against persons with disabilities and to raise awareness in order to address such discrimination and to counter stereotypes. As regards state obligations in the context of socio-​economic rights, it is first important to note that the crpd is a hybrid human rights convention, incorporating both civil and political rights, and social, economic and cultural rights. It is not always clear which rights, or which aspects of individual crpd rights, are civil and political rights or social, economic or cultural rights, but a proposal to clearly spell this out in the crpd was rejected during negotiations.149 Art. 4(2) crpd provides that civil and political rights must be implemented immediately, whereas social, economic and cultural rights are to be realised progressively. The duty of progressive realisation requires states to take measures to the maximum of their resources to realise the rights of persons with disabilities progressively.150 This dual character of socio-​economic rights, with some aspects of them being subject to progressive realisation and some being immediately applicable, has arguably been implemented in Art. 4(2) crpd. Its wording suggests that not all aspects of social, economic and cultural rights are progressively realisable, as it provides that the duty of progressive realisation is ‘without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law’.151 147 crpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ un Doc crpd/​c /​g c/​6, 26 April 2018 at para. 39. 148 Anna Lawson, ‘The UN Convention on the Rights of Persons with Disabilities and European Disability Law:  A Catalyst for Cohesion?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 88. 149 Brynhildur G Flóvenz, ‘The Implementation of the UN Convention and the Development of Economical and Social Rights as Human Rights’, The UN Convention on the Rights of Persons with Disabilities:  European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009)  265–​ 267 stating that Israel wanted to introduce a non-​ exhaustive list of socio-​economic rights in Art. 4(2), but New Zealand and other countries opposed this. 150 Kallehauge (n 140) 210. 151 Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford University Press 2009) 117.

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The duty of progressive realisation does not, however, permit indifferent inertia or lack of initiative on the part of states. First, it imposes both ‘obligations of conduct and obligations of result’.152 Steps must be taken without stopping, be they small or large, so that there is a discernible ‘process that is progressive’.153 According to the cescr Committee, the duty of progressive realisation ‘imposes an obligation to move as expeditiously and effectively as possible towards that goal’ of realising the human right.154 The cescr Committee has further stressed in the context of persons with disabilities that positive action is particularly required for this vulnerable group:155 The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities. This almost invariably means that additional resources will need to be made available for this purpose and that a wide range of specially tailored measures will be required. Thus, the lack of initiative on the state, which was found not to constitute a failure of state protection in the case of the Ghanaian with mental health problems, would certainly be in breach of ‘due diligence’ requirements, also if only socio-​economic rights were concerned.156 Secondly, states are prevented from taking any deliberately retrogressive measures.157 Thirdly, social, economic and cultural rights have a core, which is to be implemented immediately.158 It is part of the immediate obligations that socio-​economic rights are not implemented in a discriminatory way.159 The prohibition of discrimination on the grounds of disability in Art. 5 crpd

152 cescr, ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ un Doc E/​1991/​23, 14 December 1990 at paras. 1–​2. 153 Kallehauge (n 140) 210. 154 cescr, ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ (n 152) at para. 5. 155 cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 142) at para. 9. 156 RRT Case No. 1219395 (Ghanaian with mental health problems) (n 16) at para. 28. 157 cescr, ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ (n 152) at para. 9; Ssenyonjo (n 133) 43. 158 See e.g. cescr, ‘General Comment No 13:  The Right to Education (Article 13 of the Covenant)’ un Doc E/​C.12/​1999/​10 (8 December 1999) at para. 31; Ssenyonjo (n 133) 44. 159 See e.g. cescr, ‘General Comment No 13:  The Right to Education (Article 13 of the Covenant)’ (n 158) at para. 31; Ssenyonjo (n 133) 44.

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requires states to take action to avoid or end discrimination at the hands of the state and non-​state actors. Discrimination on the basis of disability is defined in Art. 2 crpd as ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’ and includes denials of reasonable accommodation. The entirety of this non-​discrimination obligation is not subject to progressive implementation.160 Especially in the case of vulnerable groups, the state can never justify discriminatory denial of access to health care, goods and services.161 Discriminatory denial of socio-​economic rights is prohibited irrespective of financial resources.162 The crpd imposes far-​reaching positive obligations as necessary element of the effective human rights protection for persons with disabilities.163 One area of immediate concern for asylum claims of persons with disabilities are the different state obligations in relation to violence and ill-​treatment of persons with disabilities. For instance, the protection of the physical and mental integrity of persons with disabilities is a civil and political right of its own and states are thus under an immediate obligation to implement this.164 Financial considerations, sometimes raised by asylum decision-​makers as justification for an inability to protect, are never valid reasons for failing to take due diligence measures against violence and ill-​treatment. In addition, Art. 15(2) crpd regarding the prohibition of torture and ill-​ treatment is immediately applicable. It provides that states must take ‘all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment’. As minority and marginalised groups like persons with disabilities are ‘generally more at risk of 1 60 Flóvenz (n 149) 268. 161 Michelle Foster, ‘Economic Migrant or Person in Need of Protection? Socio-​Economic Rights and Persecution in International Law’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 242. 162 Foster (n 161) 243. 163 Oddny Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities:  European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 60. 164 Mary Keys, ‘Article 17 [Protecting the Integrity of the Person]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 327.

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experiencing torture and ill-​treatment’, states have a heightened obligation to protect such groups from torture.165 In particular, it has been recognised at the European level by the ECtHR that where persons with psychosocial or intellectual disabilities are subjected to forced treatment, the prohibition of torture and ill-​treatment in Art. 3 echr imposes on states an obligation to conduct an effective, thorough and independent investigation, with a sufficient element of public scrutiny and with reasonable expedition, which the authorities conduct of their own initiative, once the matter has come to their attention.166 Art. 16 crpd further protects persons with disabilities against all forms of exploitation, violence and abuse, including gender-​based aspects thereof. As regards violence, abuse and exploitation, states have a duty to protect persons with disabilities by taking ‘appropriate measures’ which have to meet the standards of due diligence, and include legislative and administrative, social and educational measures.167 This prohibition is particularly aimed at the prevention of behaviour of non-​state actors, as Art. 16(1) crpd expressly condemns violence, abuse and exploitation ‘both within and outside the family’.168 The duty to prevent violence, abuse and exploitation requires measures such as programs, services, or facilities, and gender-​and age-​sensitive measures also for the families of persons with disabilities and their caregivers.169 Assistance and support include information and education on how to avoid, recognise and report instances of violence, abuse and exploitation. These measures must be monitored independently and effectively in line with Art. 16(3) crpd.170 In relation to the obligation to take all appropriate measures to prevent and protect against violence, abuse and exploitation, the UN Special Rapporteur on 1 65 UN Human Rights Council (n 137) at para. 26. 166 Bureš v The Czech Republic app no 37679/​08 (ECtHR, 18 October 2012) at paras. 123–​127 the failure to do so led to a violation of the procedural aspect of Art. 3 echr in this case, see paras. 132–​134. 167 Art. 16(1) crpd. 168 Antonio Marchesi, ‘Article 16 [Freedom from Exploitation, Violence and Abuse]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 322. 169 Art. 16(2) crpd. 170 States further have to take appropriate measures aimed at the ‘physical, cognitive and psychological recovery, rehabilitation and social integration of persons with disabilities who become victims …’, including protection services (Art. 16[4]‌crpd). Recovery and reintegration require an environment that ‘fosters the health, welfare, self-​respect, dignity and autonomy of the person and takes into account gender and age-​specific needs’ (ibid); and similar obligations have been spelt out in relation to children with disabilities, see crc Committee, ‘General Comment No. 9: The Rights of Children with Disabilities’ un Doc crc/​c /​g c/​9, 27 February 2007 at para. 42(h).

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Torture has observed that ‘State acquiescence with regard to violence against persons with disabilities may take many forms, including discriminatory legislative frameworks and practices such as laws depriving them of their legal capacity or failing to ensure equal access to justice of persons with disabilities, resulting in impunity for such acts of violence’.171 Finally, under Art. 16(5) crpd states are under an obligation to investigate and punish exploitation, violence and abuse. They have to identify it, investigate it and prosecute it, if appropriate.172 A further group at heightened risk of violence are persons with albinism. The Independent Expert on the enjoyment of human rights of persons with albinism, Ikponwosa Ero, has stated that legislative measures addressing the issue of trafficking in body parts of persons with albinism are still lacking, as such laws ‘dealing with trafficking in persons often do not take into consideration the practice of trafficking for witchcraft purposes human body parts that are not organs’.173 Witchcraft practices are also often inadequately covered by existing criminal laws, which fall ‘short of capturing the reprehensibility of witchcraft practices and of deterring them’, so that charges are weak and sentences are lenient and ‘their deterrent capacity is weakened because the perpetrator is still able to foresee an overall gain or profit from his or her crime’.174 In addition, states often lack the resources and specialisation on the part of law enforcement agencies, including electronic databases, enhanced forensic capacity, and cross-​border cooperation in criminal matters, which are necessary to effectively prosecute and punish crimes against persons with albinism.175 The crpd Committee has pronounced itself on the state obligations under Art. 5 in the context of Art. 15 (torture and ill-​treatment) and Art. 17 (physical and mental integrity) in the communication of X v. Tanzania. The communication concerned a person with albinism from Tanzania, whose arm had been 1 71 UN General Assembly (n 136) at para. 69. 172 Art. 16(5) crpd; see also Bureš v The Czech Republic (n 166)  at para. 121 holding that ‘Article 3 of the Convention requires States to put in place effective criminal-​law provisions to deter the commission of offences against personal integrity, backed up by law-​ enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. The domestic legal system, and in particular the criminal law applicable in the circumstances of the case, must provide practical and effective protection of the rights guaranteed by Article 3’. 173 UN General Assembly, ‘Enjoyment of Human Rights by Persons with Albinism’ un Doc A/​ 71/​255 (29 July 2016) at para. 78. 174 UN General Assembly (n 173) at para. 78. 175 UN General Assembly (n 173) at para. 77.

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hacked off. The Tanzanian state authorities had failed to investigate the crime, until much later, initially taking no action at all. The crpd Committee emphasised:176 In the absence of any explanation from the State party on these issues, the Committee considers that the author has been a victim of a form of violence that exclusively targets persons with albinism. It further considers that the State party’s failure to prevent and punish such acts has resulted in a situation putting him and other persons with albinism in a situation of particular vulnerability, and preventing them from living in society on an equal basis with others. The Committee therefore concludes that the author has been a victim of a direct discrimination based on his disability, in violation of article 5 of the Convention. The late remedial action and the initial failure to prevent and punish violence against persons with albinism was thus found to be in violation of Arts. 5, 15 and 17 crpd. This case illustrates the high protection standards applying under a due diligence approach at the international human rights level. Children with disabilities are a further group which is ‘especially vulnerable to violence’ and heightened protection duties apply.177 States are, for instance, under training and education obligations for parents or other caregivers of children with disabilities, so that they understand the risks and detect the signs of abuse and to ensure that children with disabilities are treated with dignity and respect.178 As has been pointed out in Chapter iii of this book, the issue of forced institutionalisation illustrates the great overlap of civil and political rights and social, economic and cultural rights in the crpd. On the one hand, the right to independent living can be seen as an aspect of the right to liberty, a civil and political right. As regards forced institutionalisation, states have to ‘abolish or modify all existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities in the full enjoyment of their right to live independently and be included in the community’ (Art. 4(1)(b) crpd).179 Furthermore, pursuant to Art. 4(1)(d) crpd they 176 X v United Republic of Tanzania un Doc crpd/​c /​18/​d /​22/​2014, 31 August 2017 (crpd Committee) at para. 8.4. 177 crc Committee (n 170) at para. 44; UN General Assembly (n 136) at para. 68. 178 crc Committee (n 170) at paras. 42(a) and (d). 179 Giuseppe Palmisano, ‘Article 19 [Living Independently and Being Included in the Community]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds),

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have to refrain from engaging in any act or practice that is inconsistent with Art. 19 crpd.180 On the other, it has been described as a social right ‘par excellence’ which needs to be realized through the adoption of policies, programs and the provision of sufficient funding.181 Money needs to be invested in community living in order to break the cycle of institutionalisation. In order to make the right to live independently and be included in the community a reality for persons with disabilities, state parties are under an obligation to take ‘effective and appropriate measures’ to facilitate full enjoyment of the right in Art. 19 crpd. While this does not impose an obligation to provide for perfect attainment of the right, it does impose obligations of immediate effect on states to ‘abolish or modify all existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities’ (see Art. 4(1)(b) crpd).182 This would appear to clearly prohibit laws providing for the institutionalisation of persons with disabilities on the basis of their disability, rather than a non-​discriminatory basis. The case law set out above in subchapter iv.B.2, which has taken no issue with forced institutionalisation, illustrates the lack of awareness of state duties arising in international human rights law and under the crpd. However, Art. 19 crpd is otherwise a social right to be implemented progressively in accordance with Art. 4(2) crpd requiring positive measures, such as funding and programs for community-​based health care.183 Effective deinstitutionalisation ‘requires a systemic approach, in which the transformation of residential institutional services is only one element of a wider change in areas such as health care, rehabilitation, support services, education and employment, as well as in the societal perception of disability’.184 States are under an obligation ‘to take all possible and measurable steps to achieve the goal of deinstitutionalization, using the maximum of their available resources and adopting adequately funded strategies with clear time frames and benchmarks’.185 The dedication of large resources to the reconstruction of institutions

1 80 181 182 183 184 185

The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 362. Palmisano (n 179) 362–​363. Palmisano (n 179) 363. Palmisano (n 179) 362. Palmisano (n 179) 363. ohchr, ‘Thematic Study on the Right of Persons with Disabilities to Live Independently and to Be Included in the Community’ un Doc A/​h rc/​28/​37, 12 December 2014 at para. 25, also cited in 366 Palmisano (n 179). Palmisano (n 179) 366–​367.

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and the failure to phase out institution-​based care is not compatible with Art. 19 crpd.186 In addition, inaction on the part of a state is clearly in violation of Art. 19 crpd, even where serious resource constraints pertain. States are under an obligation to at least ‘reflect on where they are, where they ought to be as envisaged by the convention and to plan a responsible transition that moves in the right direction over time’.187 In the absence of such a dynamic of change, states are in breach of their duty of progressive realisation. Further, where states use international aid moneys to finance institutionalisation of persons with disabilities, this clearly constitutes a deliberately retrogressive measure in breach of Art. 19 crpd.188 Indeed, it is part of the duty of progressive realisation to seek international cooperation and assistance in order to realise socio-​economic rights of persons with disabilities, where this is necessary in order to achieve sufficient budget for the implementation of the social, economic and cultural rights of persons with disabilities.189 Available resources include those available through international cooperation and assistance and those also need to be used equitably and effectively targeted to subsistence requirements and essential services.190 One indicator is to compare the percentage allocated to the realisation of a particular right with the overall budget and in particular areas outside the human rights law field, such as military expenditure or debt-​servicing.191 In the context of such socio-​economic rights, it is important to distinguish between state actions and non-​state actions. As can be seen from the examples 186 Palmisano (n 179)  371, referring to the crpd Committee, Concluding Observations on the Initial Report of Austria (un Doc crpd/​c /​a ut/​c o/​1, 13 September 2013), and crpd Committee, Concluding Observations on the Initial Report of China (un Doc crpd/​c /​ chn/​c o/​1, 15 October 2012). 187 ‘The Right of People with Disabilities to Live Independently and Be Included in the Community’ Issue Paper, Council of Europe Commissioner for Human Rights, June 2012 19, also cited in Palmisano (n 179) 363. 188 See the example of Guatemala, where international aid money is being used for institutionalization of persons with disabilities permanently segregating them from the community. The majority of children are being placed in institutions without court order (65%), see Disability Rights International, ‘Comments to the UN Committee on the Rights of Persons with Disabilities: International Aid Funds Institutionalization in Guatemala’ 6 . 189 cescr, ‘General Comment No. 5: Persons with Disabilities’ (n 142) at para. 13. 190 Ssenyonjo (n 133)  52; see for example the EU which has committed to make international aid more protective of rights of persons with disabilities, see Human Rights Watch, ‘EU Making Aid Efforts More Inclusive:  Mandate to Consider Needs of People With Disabilities’ 7 December 2017  . 191 Ssenyonjo (n 133) 53.

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set out in subchapter iv.B.2 above, it appears that the refugee case law in the area of persons with disabilities is sometimes confused in this respect, applying notions of sufficiency of protection to state actors. In addition, the case law fails to appreciate that even when institutionalisation is perpetrated by non-​ state actors, where this is done in a discriminatory manner, states are under an obligation under the crpd to remedy this immediately. A primary duty on states is to guarantee access to health care in a non-​ discriminatory manner and without stigmatisation, which applies immediately.192 Art. 25 crpd also imposes a duty of protection, namely that states have to prevent discriminatory denial of health care or health services.193 The duty to promote includes the duty to make available adequate health care and health services as close as possible to the communities of persons with disabilities including rural areas, including those specifically required as a result of disability194 and health care relating to sexual and reproductive health.195 For instance, while the vast majority of countries claims to be addressing stigma and discrimination, most countries did not have a budget for activities aimed at responding to hiv-​related stigma and discrimination.196 Art. 26(2) crpd further imposes the obligation on states to ‘promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services’ and Art. 26(3) crpd requires states to promote ‘the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation’. The crpd Committee requires states for instance to take ‘comprehensive measures’ to ensure to persons with disabilities access on an equal basis with others, to the physical environment, to transportation, to information and communications, and to other facilities and services open to or provided to the public, both in urban and rural areas’. Laws implementing accessibility will require important financial resources, organisation and time, and should be developed in collaboration with persons with disabilities (see also Art. 4(3)

192 Ilja Richard Pavone, ‘Article 25 [Health]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 478. 193 Art. 25(f) crpd Pavone (n 192) 479. 194 Art. 25(c) crpd. 195 Art. 25(a) crpd. 196 UN High Commissioner for Human Rights, ‘The Protection of Human Rights in the Context of Human Immunodeficiency (hiv) and Acquired Immune Deficiency Syndrome (aids)’ un Doc A/​h rc/​19/​37 (14 December 2011) at para. 6(a).

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crpd on the consultation and active involvement of persons with disabilities).197 The right to personal mobility in Art. 20 crpd also imposes on states a duty to provide assistive devices and technologies ensuring the mobility of persons with disabilities. While the realisation of this right depends also on financial resources, the protection of Art. 20 must be seen as a ‘matter of priority’ even in times of budget restraints.198 The fact that mobility remains an area of low priority for governments and is often not included in laws, policies or programs may constitute a violation of Art. 20 crpd.199 States are also under an obligation to provide accessible information about mobility aids, devices and assistive technologies.200 Again, asylum decision-​makers fail to engage with state duties in this respect. In relation to other socio-​economic rights, such as the right to work or to inclusive education, states are generally under a duty to progressively realise these. However, discriminatory aspects must be remedied immediately. For instance, in relation to the right to inclusive education, states have to ensure ‘that schools take all measures to combat school bullying and pay particular attention to children with disabilities providing them with the necessary protection while maintaining their inclusion into the mainstream education system’.201 In addition, even if the realisation of the socio-​economic right is proving very difficult, states must take measurable steps towards its realisation. As the European Committee of Social Rights held in the collective complaint of Autism-​ Europe v. France, concerning the right to inclusive education of children with autism, in which the Committee found France to be in violation of the right of persons with disabilities to independence, social integration and participation in the life of the community (Art. 15(1) European Social Charter) and the right of children and young persons to social, legal and economic protection (Art. 17(1) European Social Charter) as well as the prohibition of discrimination (Art. E Revised European Social Charter):202

197 Francesco Seatzu, ‘Article 9 [Accessibility]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 237. 198 Marco Fasciglione, ‘Article 20 [Personal Mobility]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 385. 199 Fasciglione (n 198) 379. 200 Art. 4(1)(h) crpd. 201 crc Committee (n 170) at para. 42(e). 202 Autism-​Europe v France Complaint No. 13/​2002, 4 November 2003 (European Committee of Social Rights) at para. 53, also cited in Palmisano (n 179) 363–​364.

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When the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State Party must take measures that allows it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources. States Parties must be particularly mindful of the impact that their choices will have for groups with heightened vulnerabilities as well as for other persons affected including, especially, their families on whom falls the heaviest burden in the event of institutional shortcomings. The duty of progressive realisation thus requires steps to be taken for the protection of vulnerable groups, such as persons with disabilities, above and beyond those for other groups. 3.5 Conclusion on Disability-​Specific Interpretation The above analysis of international human rights law standards has sought to demonstrate that on a vclt-​compliant interpretation of the requirement of ‘state protection’, quite significant steps need to be taken by a country of origin in order to meet even the test of a system of state protection which displays ‘due diligence’. While the due diligence standard has sometimes been advanced in refugee law in support of the argument that only limited state protection measures are required, a closer look at the international human rights law standards under the crpd demonstrates that ‘due diligence’ requires considerable steps to be taken by states, both in relation to civil and political rights and in relation to socio-​economic rights and in order to combat discrimination. Conclusion on Sufficiency of State Protection 4 The cases discussed at the outset have demonstrated that asylum decisionmakers in fact apply a protection standard which falls below the requirements of ‘due diligence’ in international human rights law. While state practice in the states studied here diverges between a ‘real risk’ and a ‘due diligence’ approach, the protection standard applied in practice to applicants with disabilities falls far below the even lower protection standard of ‘due diligence’. Three particular issues arise from the jurisprudence. Firstly, many of the cases set out above, including those involving discrimination on the part of health care professionals, hospitals or schools, concern low-​level state officials rather than private actors (see the international human rights standards in subchapter iv.B.3 above). These cases concern an unwillingness rather than an inability of state protection. An analysis of the sufficiency of state protection in those cases is out of place. Instead, the analysis

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should focus on state efforts to prevent, investigate, prosecute and punish such discrimination or the lack thereof. Secondly, even where persecution at the hands of private actors and a state inability to protect is concerned, decision-​makers applying a ‘due diligence’ standard currently apply a far lower standard than the one which is applicable in international human rights law. This tendency of refugee law decision-​ makers to apply a lower protection standard than the one applicable in human rights law has also been observed in other areas, concerning groups with specific needs, such as in the context of domestic violence asylum claims.203 Thirdly, where socio-​economic rights are concerned, decision-​makers are often reluctant to enquire beyond an alleged lack of financial resources. It is not examined, for instance, whether the socio-​economic right is being realised in a discriminatory manner, something which is not justifiable by resource constraints. Nor do decision-​makers assess whether the country of origin is actually taking progressive steps, even if they are small. Finally, decision-​makers do not assess whether the budget and international aid moneys are being allocated in a non-​discriminatory manner, with sufficient funds being assigned to the realisation of the rights of persons with disabilities. In all of the above instances, decision-​makers fail to apply even the lower standard of ‘due diligence’ state protection. In my view, a disability-​specific approach requires that due diligence is read in the light of the manifold state obligations under the crpd. If this is the case, decision-​makers would have likely reached the conclusion in almost all of the cases studied above that there is a failure of state protection. However, there remain hard cases, where a difference in approach between the due diligence and the real risk approach will persist. While an inability to protect may be due to a variety of factors, such as ‘entrenched cultural, social, or religious mores which are difficult to change’, such societal change may require considerable time so that the state’s willingness may be present, but it is lacking effectiveness.204 Under a due diligence approach, a state may thus be doing its best, so that there is no failure of state protection. However, under a real risk approach the person would nevertheless be faced with a real risk of discrimination and potentially serious harm

203 Siobhan Mullally, ‘Domestic Violence Asylum Claims and Recent Developments in International Human Rights Law:  A Progress Narrative?’ (2011) 60 International & Comparative Law Quarterly 459, 481 noting in relation to domestic violence asylum claims that neither the reasonableness of the internal protection alternative nor the effectiveness of state protection is subjected to the same level of scrutiny as is applied in cedaw’s case law or regional treaty bodies. 204 Hathaway and Foster (n 1) 312.

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or cumulative harms amounting to persecution, thus qualifying for refugee status. In my view, if persons with disabilities are to be protected from the serious harm that they might face on return to their countries of origin, a ‘real risk’ approach is the only proper conclusion, preventing them from a real risk of serious harm. C

Internal Protection Alternative

Introduction 1 Where it has been found that a person is being persecuted in her home region, it may be necessary to consider whether there is a place within the country of origin which would offer an internal protection alternative.205 However, in order to constitute such an internal protection alternative the place must be accessible (legally, safely and practically for the person concerned), safe (there is no risk of serious harm), and it must be found that the person can reasonably be expected to relocate to that area in light of all the circumstances, including her personal circumstances.206

205 This is particularly then the case when the feared persecution arises not at the hands of the state or central government but private actors, see for instance unhcr, Guidelines on International Protection No. 4: ‘Internal Flight or Relocation Alternative’ Within the Context of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees, 23 July 2003 (un Doc hcr/​g ip/​03/​04, 23 July 2003) at para. 7; Hathaway and Foster (n 1) 342 however preferring instead of ‘reasonableness’ a minimum affirmative protection requirement for the place of internal protection. 206 For Australia see Al-​Amidi v Minister for Immigration & Multicultural Affairs [2000] fca 1081 (Federal Court of Australia); for Canada, see Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 fc 589 (Federal Court of Canada), and Ranganathan v Canada (Minister of Citizenship and Immigration) [2001] 2 fc 164 (Federal Court of Canada); for New Zealand, see Refugee Appeal No 71684/​99 (New Zealand rsaa) at paras 61–​62; for the UK see Januzi (FC) (Appellant) v Secretary of State for the Home Department (Respondent); Hamid (FC) (Appellant) v Secretary of State for the Home Department (Respondent); Gaafar (FC) (Appellant) v Secretary of State for the Home Department (Respondent); Mohammed (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (Consolidated Appeals) [2006] ukhl 5 (UK House of Lords), and Secretary of State for the Home Department (Appellant) v ah (Sudan) and Others (FC) (Respondents) [2007] ukhl 49 (UK House of Lords); for the US see US Regulations 65 Fed. Reg. 76121-​01, 6 Dec 2008, specify that an internal protection alternative applies, if the applicant can relocate to avoid persecution and it would be reasonable ‘under all the circumstances’ to expect her to do so, at paras. 208.13(b)(1)(i)(B) and (b)(2)(ii), see further Anker (n 116) 81 fn 6.

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The disability-​specific standards which are pertinent to the internal protection alternative have already been set out in other parts of this book (as will be elaborated below) , so that they will not be considered in detail again here. In particular, the requirement that an internal protection alternative must be safe means that no serious harm may arise in a place of relocation. The reader is therefore referred to the detailed treatment of ‘serious harm’ under a disability-​specific approach in Chapter iii of this book. None of these harms may pertain in a potential place of internal relocation, otherwise the place does not constitute an internal protection alternative. This applies irrespective of whether such serious harm is for reasons of a Convention ground, as there is no causal nexus requirement for the safety of an internal protection alternative.207 In addition, there must not be a failure of state protection in the place of internal relocation, otherwise it does not amount to a safe internal protection alternative (see above, subchapter iv.B). As regards the accessibility of the internal protection alternative, a place of internal relocation must be accessible to a person with disabilities.208 This has, however, not arisen as an issue in the case law. In relation to the right to accessibility and personal mobility, as well as the rights of persons with disabilities to accessibility in situations of war or conflict, the reader is referred in particular to subchapter iii.C.4 of this book. Finally, an internal protection alternative must be reasonable in all the circumstances, including the personal circumstances of the applicant.209 This is also informed by human rights violations, for which reference is again made to Chapter 207 unhcr, Guidelines on International Protection No. 4:  ‘Internal Flight or Relocation Alternative’ Within the Context of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees, 23 July 2003 (n 205) at paras. 18–​21; Hathaway and Foster (n 1) 344–​350 pointing out that this does not only include a risk of persecution, but also a risk of ill-​treatment prohibited under human rights law. 208 unhcr, Guidelines on International Protection No. 4:  ‘Internal Flight or Relocation Alternative’ Within the Context of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees, 23 July 2003 (n 205) at paras. 10–​12. 209 unhcr, Guidelines on International Protection No. 4:  ‘Internal Flight or Relocation Alternative’ Within the Context of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees, 23 July 2003 (n 205) paras. 22–​30; Hathaway and Foster (n 1) 350–​361; unhcr, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (n 84) at paras. 7, 24–​25 recognising in particular that ‘[f]‌actors which may not on their own preclude relocation may do so when their cumulative effect is taken into account. Depending on individual circumstances, those factors capable of ensuring the material and psychological well-​being of the person, such as the presence of family members or other close social links in the proposed area, may be more important than others’ at para. 25.

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iii. While the jurisprudence studied for this book has raised no issues concerning a disability-​specific understanding of reasonableness, the following subchapter will set out case law which has dealt with the reasonableness of an internal protection alternative in a disability-​specific manner in order to illustrate a disability-​ specific approach to the reasonableness of an internal protection alternative. Reasonableness of an Internal Protection Alternative for Persons with Disabilities While the reasonableness threshold varies in the different jurisdictions studied here,210 decision-​makers generally accept that the internal protection alternative has to take account of the specific needs of persons with disabilities.211 The case law has considered the extent to which a disability or other medical condition impacts on the assessment of the reasonableness of an internal protection alternative.212 For instance, the Federal Court of Canada held in the case of Saldivar Soto v. Canada, that the mental state of the applicants had to be taken into account when assessing the internal protection alternative.213 The case concerned a Mexican single mother suffering from ptsd together with her daughter who suffered from severe anxiety. They had a well-​founded fear 2

210 For Australia see SZATV v Minister for Immigration and Citizenship [2007] hca 40 (High Court of Australia) at para. 67 (Kirby J); in Canada Ranganathan v Canada (Minister of Citizenship and Immigration) (n 206) reasonableness has been interpreted as imposing a very high threshold of threats to life or liberty; in New Zealand an internal protection alternative is reasonable if the various rights guaranteed under the Refugee Convention are realised, see Refugee Appeal No 71684/​99 (n 206) at paras. 61–​62; and see further Burson (n 119) 42–​43; in the UK the reasonableness standard under the unhcr Guidelines has been endorsed see Januzi (FC) (Appellant) v Secretary of State for the Home Department (Respondent); Hamid (FC) (Appellant) v Secretary of State for the Home Department (Respondent); Gaafar (FC) (Appellant) v Secretary of State for the Home Department (Respondent); Mohammed (FC) (Appellant) v Secretary of State for the Home Department (Respondent) (Consolidated Appeals) (n 206) paras. 20–​21 (Lord Bingham), para 67 (Lord Carswell); see also Symes and Jorro (n 54) 305 mn 5.21; in the US the Regulations were intended to conform to the unhcr handbook and clarified that the burden of proof was on the state to prove the possibility and reasonableness of an internal protection alternative, see Anker (n 116) 81 fn 15. 211 See e.g. Saldivar Soto v Canada (Citizenship and Immigration) 2009 fc 278 (Federal Court of Canada) at para. 9; Boer-​Sedano v Gonzales (2005) 418 F.3d 1082, 1090–​1091 (US Court of Appeals for the Ninth Circuit). 212 See also the US case of a Mexican gay man who feared persecution in his home area but was found not to be able to relocate in Mexico due to his hiv status, which ‘would make relocation unreasonable’ as he was resistant to virtually all licensed anti-​retroviral medication and depended on medication which was unavailable in Mexico Boer-​Sedano v Gonzales (n 211). 213 Saldivar Soto v Canada (Citizenship and Immigration) (n 211).

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of domestic violence from the ex-​partner and father of the daughter. While the irb had found that they could find an internal protection alternative in Mexico City, the Federal Court reversed this finding. It held that, on the one hand, Mexico City was not safe as it was only 20 minutes away from their home town.214 On the other, the Federal Court considered the psychological evidence regarding both applicants which indicated that they required a stable and safe environment in order to improve their mental health. On this basis, it held that the applicants could not reasonably be expected to relocate to Mexico City, as such relocation would involve further instability.215 Similarly, the Federal Court of Canada considered the reasonableness of an internal protection alternative in the case of Omekam v. Canada concerning a Nigerian Christian fearing persecution from Muslims.216 He suffered from a permanent physical disability in his knee, which had been fractured through torture resulting in a limp, as well as ptsd and depression. The irb had found him credible regarding his fear of persecution at the hands of Muslims, but had found that he could find an internal protection alternative in Lagos or Benin City. On appeal, the Federal Court overturned this finding holding that the irb had failed to consider the medical situation, which was relevant to the second limb of the enquiry into an internal relocation alternative. In particular, it held that it would have been pertinent to consider the evidence of considerable deficiencies in the provision of mental health care in Nigeria and the evidence of the vulnerable mental state of the applicant.217 It stressed:218 The applicant’s medical evidence was relevant to the second part of the test, namely, whether the conditions in the proposed ifa were such that it would be unreasonable for the applicant to seek refuge there. The applicant submitted that the immigration officer only considered the medical 2 14 Saldivar Soto v. Canada (Citizenship and Immigration) (n 211) at para. 8. 215 Saldivar Soto v. Canada (Citizenship and Immigration) (n 211) at para. 9 and see para. 4; the opposite conclusion was reached by the Federal Court of Canada in the case of a Nigerian mother with psychological issues and her son with a learning disability in Aladenika et al v Canada (Minister of Citizenship and Immigration) [2018] fc 528 (Federal Court of Canada); the Australian Federal Court also considered the availability, accessibility and quality of mental health services in the place of internal relocation alternative in the case of a person with a mental health condition in AHK16 v Minister for Immigration & Anor [2018] fcafc 106 (Federal Court of Australia) finding it was available and that the applicant’s disability would not deteriorate in case of relocation, at paras. 40–​46. 216 Omekam v Canada (Minister of Citizenship and Immigration) 2006 fc 331 (Federal Court of Canada). 217 Omekam v. Canada (Minister of Citizenship and Immigration) (n 216) at paras. 37–​38. 218 Omekam v. Canada (Minister of Citizenship and Immigration) (n 216) at paras. 37–​38.

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evidence in relation to section 97 of irpa (person in need of protection), but did not consider it in relation to section 96 of irpa (well-​founded fear of persecution, including the issue of the ifa). As the irb had failed to consider pertinent medical evidence on the impact of an internal protection alternative on the mental state of the applicants, the case was remitted to the irb for fresh consideration of this issue.219 All of these cases illustrate a disability-​sensitive approach to the internal protection alternative. This goes beyond recognising only serious harm in the place of relocation and takes express notice of the medical state of the applicant and any relevant evidence in relation to this and the consequences of an internal relocation for the applicant’s health. An applicant’s ability to obtain work in light of her disability may also be pertinent to the reasonableness of an internal protection alternative.220 Even if an inability to obtain work may not rise to the level of serious harm as set out in Chapter iii, such a lack of work is relevant to the reasonableness of the internal protection alternative. This was recognised in the Australian case of an Egyptian Coptic woman suffering from cognitive, physical and psychiatric disabilities who had a well-​founded fear of persecution from a fanatical Muslim in her home area.221 Regarding the internal protection alternative, the rrt held that it would be ‘entirely unreasonable’ to expect her to relocate within Egypt to avoid that harm. It based this finding on the following factors: that the applicant was a single woman suffering from disabilities in need of long-​ term treatment and rehabilitation, without employment and not capable of 219 This decision stands in contrast to the case of X (Re) (Nigerian family with son with Elbs Palsy) (2019) TB9-​16802; TB9-​16803; TB9-​16804; TB9-​16805 (irb (Canada)) in which the irb found that a viable internal relocation alternative existed for a family with a son with Elbs Palsy, who had received threats from the paternal parents of the child because of his disability and wanted him to undergo cleansing rites –​the irb did not consider that there was a lack of medical care in Abuja; for a similar conclusion see X (Re) (Nigerian family with son with medical condition) (2019) TB9-​05486; TB9-​05487; TB9-​05488 (irb (Canada)); a different conclusion was however reached in the case of X (Re) (Nigerian mother with son with autism) (2019) TB8-​21213; TB8-​21214 (irb (Canada)) further discussed in Chapter iii.B.2. 220 This was also recognised in Pathmanathan v Canada (Minister of Citizenship and Immigration) (1998) IMM-​4869–​97 (Federal Court of Canada) concerning a Tamil woman with polio, although it is questionable whether the analysis that the applicant would be more likely to find menial work in Colombo than in Canada due to her lack of training in modern technologies was based on any evidence. 221 RRT Case No 1400685 (Coptic Egyptian woman with cognitive, physical and psychiatric disabilities) [2015] rrta 265 (rrt (Australia)).

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employment in the foreseeable future and incapable of making significant life decisions on her own.222 While she had a family support network in Australia, she had no close family members in Egypt who would be able to render adequate assistance to her.223 This is a good example of a sensibility to disability-​specific considerations in the assessment of reasonableness of an internal protection alternative. Even where the inability to obtain work may not rise to the level of a human rights violation, this is nevertheless relevant to the reasonableness of an internal protection alternative. 3 Conclusion on Internal Protection Alternative While the issue of internal relocation alternative has not raised any disability-​ specific issues beyond those discussed in other parts of this book (in particular serious harm, Chapter iii, and failure of state protection, subchapter iv.B), the above jurisprudence serves to illustrate how the reasonableness enquiry has been conducted in a disability-​specific manner in the existing case law. Both the medical condition of an applicant and her personal situation, including socio-​economic factors, in the place of relocation must be considered. Account must be taken both of the individual factors concerning the applicant and the general situation in the area of internal relocation. This includes her disabilities and any medical evidence pertaining to the disability and the resulting medical needs. It further includes evidence on the general country conditions, including accessibility of health care, employment or schooling, for persons with disabilities. D

Conclusion on the Level of State Protection

Failure of state protection raises the question what level of protection can be expected from a country of origin. No state can protect its citizens perfectly. Of course, states are under a duty to ensure that their own officials act in accordance with international human rights obligations. However, in relation to state protection against private actor persecution, two approaches exist in the different jurisdictions studied here. The ‘due diligence’ approach focuses on principles of state responsibility and the obligation to exercise due diligence 222 RRT Case No. 1400685 (Coptic Egyptian woman with cognitive, physical and psychiatric disabilities) (n 224) at para. 41. 223 RRT Case No. 1400685 (Coptic Egyptian woman with cognitive, physical and psychiatric disabilities) (n 224) at para. 41.

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in protecting human rights. The ‘real risk’ approach focuses on the question whether the level of state protection is such as to eliminate a ‘real risk’ of serious harm, even if not all risk. Subchapter iv.B.2 has set out how the approaches to failure of state protection have been applied in the cases of applicants with disabilities. In particular, this examination has shown that decision-​makers regularly fail to appreciate the difference between state acts and non-​state acts. In several cases concerning public institutions such as hospitals or schools, the courts approached the cases as if private actor persecution was concerned. As a result, they failed to appreciate the systematic nature of state discrimination in the health or education system. Instead, they focused on a ‘due diligence’ approach, holding that the states had taken all appropriate steps and could not do more, sometimes also influenced by financial considerations and resource constraints in the country of origin. Subchapter iv.B.3 has however set out a disability-​specific approach to state protection. In particular, this has demonstrated that both the ‘due diligence’ and the ‘real risk’ approaches are informed, at the very least, by standards of international human rights law regarding state obligations. The examination of state obligations under the crpd has shown that states in fact have far-​reaching obligations to eliminate discrimination against persons with disabilities in all spheres, including those which concern socio-​economic rights, such as health, work or education. These obligations go beyond the mere implementation of laws and require active steps for the training of officials at all levels and particularly those working with persons with disabilities, awareness raising, combating stereotypes and eliminating any forms of violence through investigation, prosecution and punishment or redress.224 If these standards are accepted to inform the meaning of ‘due diligence’ also in refugee law, the result in the cases discussed in subchapter iv.B.2 would have likely been a finding of a failure of state protection. In my view, a disability-​specific interpretation of failure of state protection mandates an interpretation of ‘due diligence’ which recognizes the far-​reaching state obligations under the crpd as part of what constitutes a sufficient level of state protection. In addition, it is my view that only an acceptance of the real risk approach can provide for a truly disability-​specific interpretation of failure of state protection, as only the lower ‘real risk’ standard suffices to eliminate all real risk of serious harm to persons with disabilities. In subchapter iv.C, I  have addressed the internal protection alternative, namely where an applicant faces persecution in her home area, but may be 224 crpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ (n 147) at para. 31.

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able to relocate to another part of her country of origin. Both the safety and the accessibility of an internal protection alternative depend on considerations which have been examined in other parts of this book. In particular, there must not be any ‘serious harm’ or any ‘failure of state protection’, and specific human rights obligations, such as the right to accessibility, must be guaranteed (discussed further in Chapter iii, subchapter iv.B and subchapter iii.C.4). In addition, the reasonableness of an internal protection alternative must take account of disability-​specific factors. The case law set out in subchapter iv.C.2 illustrates what such a disability-​specific approach to reasonableness entails. In particular, it requires taking account of the personal circumstances, including the medical condition and medical needs of a person with disabilities, as well as the social factors surrounding the person in the place of relocation, such as accessibility of health care, work or education.

chapter v

Causal Nexus –​‘for Reasons of’ They forced me to have a massage. Human rights laws cannot be One person held my legs and another sidestepped by simply couching my arms. It was like someone was actions that torture mentally or physically in benevolent terms such as whipping me. They rubbed me until my whole body became red. It wasn’t a “curing” or “treating” the victims. massage. It was torture. I don’t know what they did but it hurt so much I fletcher j in Pitcherskaia v INS1 couldn’t walk afterwards. Human Rights Watch, ‘Living in Hell: Abuses against People with Psychosocial Disabilities in Indonesia’2 A

Introduction

A well-​founded fear of being persecuted alone is not sufficient to trigger the application of Art. 1A(2) Refugee Convention. A refugee must additionally fear persecution for reasons of a personal attribute, namely ‘race, religion, nationality, membership of a particular social group, or political opinion’ (Art. 1A(2) Refugee Convention). The Refugee Convention thus limits the reach of its protection to persons who fear ill-​treatment for discriminatory reasons, ‘for reasons of who they are or what they believe’.3 Persons with disabilities normally have a personal attribute –​their disability –​which founds their ‘membership of a particular social group’ (see on this Chapter vi of this book). The present

1 lla Konstantinova Pitcherskaia v Immigration and Naturalization Service (1997) 95–​70887 (United States Court of Appeals for the Ninth Circuit) para. 9. 2 Human Rights Watch, ‘Living in Hell: Abuses against People with Psychosocial Disabilities in Indonesia’ 48 . 3 James C Hathaway and Michelle Foster, ‘The Causal Connection (“Nexus”) to a Convention Ground –​Discussion Paper No. 3 –​Advanced Refugee Law Workshop International Association of Refugee Law Judges –​Auckland, New Zealand, October 2002’ 15 International Journal of Refugee Law 461, 462 mn 4.

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chapter considers the causative requirement of the refugee definition, the ‘for reasons of’ clause which introduces a causal link between the personal attribute (disability) and the ill-​treatment.4 This causative requirement often poses problems to the asylum claims of persons with disabilities. The following questions, which have vexed the courts generally, arise with particular poignancy in asylum claims of persons with disabilities. Firstly, is an applicant with disabilities only a refugee, if her persecutor ill-​treated her with persecutory intent? Secondly, can an omission of the state, particularly a failure to cater for the needs of a person with disabilities, lead to refugee status, where it has a discriminatory effect? Thirdly, where there are mixed causes of a risk of being persecuted, does disability have to be the sole or dominant cause of ill-​treatment or is it sufficient if it is a contributing cause? The following examples seek to illustrate the topicality of these questions in the context of asylum applicants with disabilities. As regards persecutory intent, persons with disabilities often face ill-​ treatment which is ‘well-​intentioned’ and supposed to heal them. For instance, in Indonesia persons with psychosocial disabilities are often detained in mental health hospitals or traditional or religious healing centres. However, they are taken there against their will and with no independent judicial oversight or control.5 They are administered treatment which is said to cure them, but which amounts to torture or inhuman or degrading treatment, such as forcibly administered injections or ‘therapeutic massages’6 with hard implements that wound them.7 Worse still, electroconvulsive therapy (passing electricity through the brain in order to induce a seizure) is applied against their will in order to ‘treat’ bipolar disorder and depression.8 The question is then: is it necessary that the persecutor has a malicious intent and intends to harm the person? Regarding the second aspect, omissions, a denial of socio-​economic rights may threaten persons with disabilities in the most existential way, presenting 4 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​1P/​4/​e ng/​r ev 3, December 2011) at para. 20 points out that while in certain jurisdictions the causal link must be explicitly established (particularly Common Law states), in other states causation is not treated as a separate question for analysis, but is subsumed within the holistic analysis of the refugee definition. 5 Human Rights Watch (n 2) 5, 41–​44. 6 Human Rights Watch (n 2) 7 and 48. 7 Human Rights Watch (n 2) 46–​50. 8 Human Rights Watch (n 2) 50.

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a risk to their lives and physical integrity, or constituting ‘treatment’ that is inhuman and degrading. Indeed, omissions may amount to the cruellest acts. For instance, the denial of dialysis to a person suffering from renal failure may be a particularly effective way of killing her, as her life depends on the provision of regular treatment.9 Stigma, discrimination, familial and societal exclusion of persons with albinism, due to the failure of a state to take any measures against their discrimination, may constitute their social death.10 In such a case, is discriminatory effect sufficient or is some intentional element required? As regards mixed causes, persons with disabilities may require reasonable accommodation in order to be able to fully participate and enjoy life, and to avoid risks that non-​disabled persons can more readily escape. If states provide certain services, but do not take any measures to accommodate persons with disabilities, these persons may be exposed to avoidable risks. The following example will illustrate this. If during a natural disaster a state does not provide emergency information and escape routes, this denial of accessible information, the denial of the right to accessibility of such information (e.g. through sign language or braille) and escape routes (e.g. by making them accessible to persons with mobility impairments), may lead to the avoidable death of persons with disabilities.11 During the 2011 tsunami in Japan, at least twice as many persons with disabilities died in comparison with non-​disabled persons due to a lack of information or accessible means of evacuation.12 While in such a situation, the death would have primarily been caused by the natural disaster, a further cause of it is the state’s failure to provide accessible information and accessible escape routes. Was such death then also for reasons of the lack of catering for the needs of persons with disabilities or only for reasons of the natural disaster? 9 10 11

12

This was the factual background in Paposhvili v Belgium app no 41738/​10 (ECtHR (gc), 13 December 2016), which led the ECtHR to modify the test under Art. 3 echr in the context of medical cases relying on the refoulement prohibition. See e.g. af (Ghana) [2015] nzipt 800796 (New Zealand ipt) at para. 30 concerning a Ghanaian with albinism who stated that he would be ‘emotionally dead if required to return’ to Ghana. For a detailed examination of state obligations according to Art. 11 crpd on the rights of persons with disabilities in situations of risk and the various Concluding Observations in which the crpd Committee recommended such measures in situations of natural disasters, see Stephanie A Motz, ‘Article 11: Situations of Risk and Humanitarian Emergencies’ in Michael A Stein, Ilias Bantekas and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press 2018). undesa, unisdr in collaboration with Indonesia, Norway and the Nippon Foundation, ‘Report of Panel Discussion on Disaster Resilience and Disability: Ensuring Equality and Inclusion’ (10 October 2013) 10.

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In practice, asylum claims of persons with disabilities regularly fail in many jurisdictions, because decision-​makers consider that the causal link between the situation of her being persecuted and her disability is missing. The causative requirement of the ‘for reasons of’ clause is often pivotal in determining refugee status. It has been described as ‘[o]‌ne of the most difficult aspects of refugee determination today’13 and the most important reason for denying refugee status in certain jurisdictions.14 The three aspects set out above  –​persecutory intent, omissions and discriminatory effect, and mixed causes –​will be considered in the present chapter. Each subchapter will first set out the issue in the context of refugee cases of persons with disabilities and in a second step consider the approach to the ‘for reasons of’ clause under the vclt and the crpd in order to demonstrate what a disability-​specific approach to causal link requires. The following terms will be used interchangeably here: ‘for reasons of’ clause, causative requirement, causal connection, causal link or nexus clause. B

Causal Nexus and Persecutory Intent

Introduction 1 Is it necessary that the persecutor intended to ill-​treat the applicant for her to qualify as a refugee? That the perpetrators’ intentions were malicious, persecutory? Or can someone qualify for refugee status even if the ill-​treatment was well-​intentioned, if the treatment amounts to persecution? Is persecutory treatment done for reasons of a personal attribute, when in fact it was done to ‘heal’ or ‘help’ the person? The Refugee Convention contains no interpretive guidance as to what standard of causation is required under the ‘for reasons of’ clause in its Art. 1A(2). In this vacuum, courts have sometimes resorted to causation standards from other areas of law as interpretive aid for the nexus clause, thereby introducing stricter standards through the backdoor (see further on this subchapter B.3 b­ elow). The next subchapter will illustrate how the persecutory intent approach has been introduced in different jurisdictions and how this has affected the asylum 13 14

Hathaway and Foster (n 3) 461. Karen Musalo, ‘Claims for Protection Based on Religion or Belief: Analysis and Proposed Conclusions’ [2002] unhcr Legal and Protection Policy Research Series, Department of International Protection, ppla/​2002/​01 vii; Andreas Zimmermann and Claudia Mahler, ‘Article 1 A, Para. 2’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Oxford University Press 2011) 372 mn 322.

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claims of persons with disabilities. In the first example, intent has been introduced through a stricter formulation of the causation test in a domestic statute (US), in the second instance it originated from a stricter formulation of the test in domestic case law (Australia), and in the third instance, it is sometimes applied despite a liberal formulation of causation in the case law and by a stricter application of the test through lower courts (Canada). 2 Persecutory Intent Approach in Cases with Disabilities The US approach to causation is possibly the most heavily criticized example of a persecutory intent. In the US, the refugee definition has been paraphrased in the domestic statute, which employs the terms ‘on account of’ in preference to ‘for reasons of’.15 As Goodwin-​Gill and McAdam point out this ‘harkens back to one of the first US contributions to the definitions debate in 1950’, with the US already then preferring the stricter formulation ‘on account of’ to the more liberal test of ‘for reasons of’.16 In the leading judgment on the causal link requirement in asylum cases, ins v. Elias-​Zacarias, the US Supreme Court explained what ‘on account of’ means.17 While the case does not relate to persons with disabilities, it provides important guidance on the issue of persecutory intent in US asylum law and is therefore set out in some detail here. The case concerned a Guatemalan man who had refused to join the guerrillas because he was afraid that the government would then retaliate against his family. The majority of the US Supreme Court held that the applicant had failed to show that any persecutory acts by the guerrillas would be ‘on account of’ or ‘because of’ his political opinion. The Court held:18 the mere existence of a generalized “political” motive underlying the guerrillas’ forced recruitment is inadequate to establish (and, indeed, goes far to refute) the proposition that Elias-​Zacarias fears persecution on account of political opinion, as § 101(a)(42) requires. 15

16 17 18

See Title 8 of the U. S. Code (Aliens and Nationality), § 1101(a)(42), which pertinently reads (emphasis added): “The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-​founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion …”. Guy Goodwin-​Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2007) 101 fn 242. INS v Elias-​Zacarias 502 US 478 (1992) (US Supreme Court). I.N.S. v. Elias-​Zacarias (n 17) 482 (Scalia J delivering the opinion of the Court).

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The Court then went on to hold that what was required was some evidence of the subjective motive or intent of the persecutor, relying on ‘because of’ as the causal nexus test:19 … Elias-​Zacarias still has to establish that the record also compels the conclusion that he has a “well-​founded fear” that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. … Elias-​Zacarias objects that he cannot be expected to provide direct proof of his persecutors’ motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. The Supreme Court thus made it clear that in order to demonstrate that persecution had been ‘on account of’ the personal attribute, the applicant in the case had to show that his persecutor’s motive rather than just the persecution was his personal attribute. The wording ‘on account of’ in the US statute may be responsible for this restrictive interpretation requiring proof of intent or motive of the persecutor.20 Indeed, Goodwin-​Gill and McAdam observe that the formulation ‘on account of’ implies ‘an element of conscious, individualized direction which is often conspicuously absent in the practices of mass persecution’.21 In addition, the Supreme Court in Elias-​Zacarias also relied on the formulation ‘because of’ as being interchangeable with ‘on account of’. As has been observed, ‘because of’ places an implicit focus on a ‘controlling intent’ and thus requires an assessment of the underlying motive of the persecutor, thereby again introducing a higher ‘motive’ or ‘intent’ threshold than is appropriate under a ‘for reasons of’ standard.22

19 20

21 22

I.N.S. v. Elias-​Zacarias (n 17) 483. Refugee Appeal No 72635/​01 [2002] nzrsaa 344 (New Zealand rsaa) at para. 169; Joan Fitzpatrick, ‘The International Dimension of US Refugee Law’ (1997) 15 Berkeley Journal of International Law 21 highlighting the dangers of a domestic asylum system disconnected from its international law framework. Goodwin-​Gill and McAdam (n 16) 102. Goodwin-​Gill and McAdam (n 16) 101; Zimmermann and Mahler (n 14) 374 mn 330; Jean-​ Yves Carlier, ‘General Report’ in Jean-​Yves Carlier and others (eds), Who is a Refugee? (Kluwer Law International 1997) 673–​675, 714–​715; Shayna S Cook, ‘Repairing the Legacy of Elias Zacharias’ (2002) 20 Michigan Journal of International Law 223, 242.

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The Supreme Court judgment in Elias-​Zacarias sparked heated debate about the causal link in the refugee definition. In its wake, nexus became of ‘increasing importance –​and controversy –​in the adjudication of asylum claims, and has become in some States the overwhelming basis for denials of claims for protection’.23 The inherent problem is requiring extensive and detailed proof of the relationship between being persecuted and the Convention ground.24 This can be prohibitive in cases where the persecution is closely intertwined with a general situation of discrimination, so that it is difficult to separate the bias towards disability from other reasons such as medical or resource-​based explanations.25 As a result of the judgment in Elias-​Zacarias, the Board of Immigration Appeals started applying a requirement of persecutory intent. The following judgment of the United States Court of Appeals for the 9th Circuit illustrates the difficulty this has caused persons with –​in this case imputed –​disabilities before the Board of Immigration Appeals (bia). In the case of Pitcherskaia and The International Law Human Rights Group v. ins,26 a Russian Lesbian had claimed asylum on the basis that in Russia she had been and would be treated like someone with mental health issues and forcibly hospitalized in a psychiatric institution (thus being attributed or imputed a ‘disability’ by the Russian authorities, see further on this Chapter vi on Convention Grounds). The bia decided that she had not been persecuted, because the militia and psychiatric institutions, when subjecting her to involuntary treatment, had intended to ‘cure’ her (of her sexual identity which was considered a mental health issue), not to punish her. On appeal, the US Court of Appeals for the 9th Circuit in Pitcherskaia held that the bia had misconstrued the motive requirement from Elias-​Zacarias. The Court held that while an applicant had to demonstrate that the personal characteristic, the Convention ground, was the motive of the persecutor, an applicant did not have to show that the motive or intent of the persecutor was to ‘inflict harm and suffering in an effort to punish’.27 Yes, the Convention

23 24 25 26 27

Musalo (n 14) 37. Musalo (n 14) vii. Musalo (n 14) vii referring to claims of religious persecution and the socio-​political context where it may be difficult to separate the bias towards religion from other political or ethnic causes. lla Konstantinova Pitcherskaia v. Immigration and Naturalization Service (n 1). lla Konstantinova Pitcherskaia v. Immigration and Naturalization Service (n 1) at para. 7 (Fletcher J).

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ground had to be the motive for the treatment, but the motive did not have to be persecutory. The Court continued:28 The bia majority’s requirement that an alien prove that her persecutor’s subjective intent was punitive is unwarranted. Human rights laws cannot be sidestepped by simply couching actions that torture mentally or physically in benevolent terms such as “curing” or “treating” the victims. In sum, in the US there is still a requirement of demonstrating that the motive for the persecutor’s actions was the applicant’s personal attribute, but it is no longer necessary to show that the persecutor was motivated by malicious or persecutory intentions.29 The United States is not the only instance where a requirement of persecutory intent was read into the ‘for reasons of’ clause. A  further example is Australia, where despite a liberal formulation in statute, the case law long required proof of persecutory intent in order to meet the requirements of the ‘for reasons of’ clause. The implications of this for persons with disabilities can be illustrated with an Australian Federal Court judgment in the case of an Indian man with hiv in Kuthyar v. Minister for Immigration & Multicultural Affairs.30 The rrt had found that there were few resources available for the medical treatment of persons with hiv in India, which was the reason for the lack of available treatment in general. However, there had also been evidence of discriminatory attitudes against persons with hiv on the part of health care providers. The rrt held that ‘the material did not reveal a motivation on the part of Indian authorities to harm sufferers of the disease’31 and brushed aside concerns of discrimination as follows:32 28 29 30 31

32

lla Konstantinova Pitcherskaia v. Immigration and Naturalization Service (n 1) at para. 9 (Fletcher J). Deborah Anker, Law of Asylum in the United States (Thomson Reuters 2015) 369–​370. Kuthyar v Minister for Immigration & Multicultural Affairs [2000] fca 110 (Federal Court of Australia). See the summarised reasoning of the rrt in the Federal Court’s judgment Kuthyar v Minister for Immigration & Multicultural Affairs (n 30) at para. 79; a similar decision was reached but not overturned by the Federal Court in Subermani Gounder v Minister for Immigration & Multicultural Affairs [1998] fca 1080 (Federal Court of Australia) concerning a Fijian man suffering from end stage renal failure where despite the accepted discriminatory effect of the lack of dialysis on the applicant, it was found that there was ‘no discriminatory intention’ on the part of the government. Kuthyar v Minister for Immigration & Multicultural Affairs (n 30) at para. 74 citing the rrt decision.

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I have also noted that there have been some reports of a reluctance on the part of some practitioners and hospitals to treat people who have hiv but I have considered these reports against the experience in Australia where, when aids first appeared, there was a similar response on the part of some health service providers. In its judgment overturning the rrt’s decision the Federal Court heavily criticized this assessment as trivialising discrimination against persons with hiv in the Indian health care system. The Court stressed:33 At the time to which the Tribunal was referring, people in Australia did not know what the disease was or how it was contracted. It was therefore an issue of health and not one of discrimination. There was a general concern that health service providers might contract the then mysterious illness. The state of knowledge is now significantly greater throughout much of the world but what the situation is in India is a matter for evidence, not speculation. Because India has such a large population and the developmental level of the people varies so much from one region or place to the next, generalised speculation is even more inappropriate. Furthermore, the Court made it clear that in the case of persecution at the hands of private actors, no motive could be required for the failure on the part of the state to protect the applicant from discrimination. The applicant had claimed that he would face discrimination in employment, social interaction and reputation, against which the state authorities would not protect him. The Federal Court stressed that ‘it is not the motive of harm which is definitive under the Convention but the capacity and willingness of the authorities to protect individuals from harm’.34 A few months after the decision in Kuthyar in April 2001, the High Court of Australia (the highest court of the land) delivered its leading judgment finally overturning the persecutory intent approach in the case of Chen Shi Hai.35 Again, Chen Shi Hai did not concern persons with disabilities, but it will be set out here insofar as it pertains to the rejection of a persecutory intent requirement. The issue was the Chinese one-​child policy and the case was brought 33 34 35

Kuthyar v Minister for Immigration & Multicultural Affairs (n 30) at para. 74. Kuthyar v Minister for Immigration & Multicultural Affairs (n 30) at para. 76. Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 alr 553 (High Court of Australia).

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on behalf of the then three-​and-​a-​half-​year old second child, a so-​called ‘black child’, who feared persecution for being a second child on return to China. It had been found that the child would face a denial of food, education and health care beyond any very basic level.36 However, the Tribunal had found that such treatment:37 would not “result from any malignity, enmity or other adverse intention towards him on the part of the [Chinese] authorities”. Rather, in the Tribunal’s view, it would result from their intention “to penalize those who have children outside the approved guidelines”. The High Court, however, rejected this requirement of malignity, enmity or adverse intention, citing with approval the lower Federal Court French J’s observations as follows:38 There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept. The attribution of subjectively flavoured states such as ‘enmity’ and ‘malignity’ to governments and institutions risks a fictitious personification of the abstract and the impersonal. The High Court further considered that a dictionary definition of persecution which requires malicious intent was not helpful in the context of the refugee definition. It went on to hold:39 Indeed, from the perspective of those responsible for discriminatory treatment, it may result from the highest of motives, including an intention to benefit those who are its victims. And the same is true of conduct that amounts to persecution for a Convention reason. The Australian High Court thus abolished the persecutory intent approach in Chen Shi Hai, but similar to the position in the US, Australian asylum law

36 37 38 39

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (n 35) at paras. 31, 35, 42. Chen Shi Hai v Minister for Immigration and Multicultural Affairs (n 35) at para. 7. Chen Shi Hai v Minister for Immigration and Multicultural Affairs (n 35) at para. 34. Chen Shi Hai v Minister for Immigration and Multicultural Affairs (n 35) at para. 35.

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nevertheless continues to require some evidence of a causal link between the persecutor’s motives and the applicant’s personal attribute.40 The third instance, which will be considered here is Canada where, despite formulating a liberal test of causation, courts often do not apply a liberal test to the facts, particularly where socio-​economic rights are concerned.41 The Canadian Federal Court has held that it is wrong to require ‘persecutory intent’, as persecutory effect suffices.42 However, in practice a more restrictive test is often applied in the context of socio-​economic rights, which has had a limiting impact on the adjudication of asylum claims of persons with disabilities. This can be illustrated with the following examples. The first example is the Canadian irb judgment in X (Re) concerning a Czech man suffering from chronic schizophrenia of the paranoid type (already discussed in Chapter iii of this book).43 The applicant had a history of psychiatric hospitalization in the Czech Republic. In Canada, his condition was ‘relatively well-​controlled’ with antipsychotic medication.44 However, upon return to the Czech Republic he feared inter alia that he would be institutionalized against his will for demonstrating ‘signs’ of mental illness coupled with inadequate control of mental health facilities by the courts. He further feared being subjected to ill-​treatment in the psychiatric hospital, particularly by being kept in a caged bed.45 While the irb took note of the fact that the UN Human Rights Committee had expressed concern at ‘the use of caged beds and commitment to hospital at mere signs of mental illness’ and that ‘netted beds remained a legal restraint for adults and minors with mental disabilities who were deemed

40

41 42

43 44 45

See e.g. Ram v Minister for Immigration and Ethnic Affairs [1995] fca 1333 (Federal Court of Australia) (Burchett J) requiring motivation on the part of the persecutor; Mehenni v Minister for Immigration and Multicultural Affairs (1999) 164 alr 192 at paras. 21–​22 (Lehane J). Michelle Foster, ‘Causation in Context:  Interpreting the Nexus Clause in the Refugee Convention’ (2001) 23 Mich. J. Int’l L. 265, 285–​286. Cheung v Canada (Minister of Employment and Immigration) [1993] 2 fc 314; Naseem v Canada (Minister of Citizenship and Immigration) (2002) IMM-​5655–​01 para. 7; and see further James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014) 380 fn 99 referring however to conflicting decisions in the context of military conscription, but also noting that the nexus requirement is little discussed in those cases. X (Re) (Czech man with schizophrenia of the paranoid type) (2010) TA8-​01636 (irb (Canada)). X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 2. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 22.

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threats to themselves or others’,46 it found that this was neither persecutory nor did it satisfy the nexus clause.47 There was no causal link, the irb found, because on the one hand the legislation regarding the use of netted beds was of general application, which in the irb’s view demonstrated the lack of a discriminatory element. However, such a view is misguided. A law formulated in general terms can have just as discriminatory an effect as a law that is already formulated in a discriminatory manner.48 Indeed, it is not only the discriminatory application of the law, but also the use of the law to promote discrimination which may lead to persecution.49 In X (Re) the law had the effect of discriminating against persons with mental health issues, who were disproportionately more likely to be affected by it.50 More importantly for the instant analysis, the irb further considered that ‘the intention of using restraints is not to humiliate or debase the person; it is to protect the person’.51 Thus, well-​intentioned persecutory treatment could not satisfy the causal link, as there was no persecutory intent.52 This ruling is in direct conflict with the case law of the higher Canadian courts that there is no requirement of persecutory intent in the ‘for reasons of’ clause. Indeed, the Canadian irb decision in the case of the Czech man stands in stark contrast to a judgment a few years later of the irb in the case of a

46 47 48

49 50 51 52

X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 25. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 27 for a discussion of the persecutory aspect of the use of caged beds, see the chapter on Serious Harm. See for instance unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​g ip/​12/​01, 23 October 2012) at para. 26 stressing that it is well-​established that laws criminalising same-​sex relations or criminalising in general, non-​discriminatory terms sodomy are ‘discriminatory and violate international human rights norms’, referring to; Toonen v Australia ccpr/​c /​50/​d /​488/​1992, 4 April 1994 (HRCttee) in which the HRCttee found that sodomy laws violated the rights to privacy and equality before the law. Goodwin-​Gill and McAdam (n 16) 103 referring to the example of totalitarian states’ travel bans and Republikflucht as laws of general application leading to persecution. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 30. X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 30. Regarding the question whether this would happen against the applicant’s will, the irb drily held that ‘No medical documents were presented to support the claimant’s allegations that he was institutionalized against his will; given excessive injections against his will; that he was “locked in the naked room”; and received invasive physical procedures’. The substantial background evidence corroborating the applicant’s account that the measures had been taken against his will could not sway the irb, see X (Re) (Czech man with schizophrenia of the paranoid type) (n 43) at para. 9.

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Korean single mother with a minor daughter suffering from schizophrenia.53 In this case, the applicant had submitted that there was widespread use of involuntary institutionalization of persons suffering from schizophrenia in Korea, with 90% of patients being involuntarily hospitalized and 67% of them suffering from schizophrenia.54 Against this background the irb came to the following conclusion:55 Having considered all the evidence I conclude that Korea is making serious efforts to protect its citizens inflicted with mental illness. This notwithstanding I  turn my mind to those efforts the Korean state is committed to make in order to protect the rights of its mentally ill citizens and conclude, based on the weaknesses that have been identified as still existing in the system and the extent to which the identified violations of human rights continue to occur that they are not established well enough to provide adequate state protection to the principal claimant. It did not found its conclusions on the intentions of the Korean state, but on human rights principles and the fact that involuntary hospitalization occurred having a clear discriminatory effect on persons with schizophrenia. This was found to be sufficient to meet the causal link requirement. The above overview of cases concerning persons with disabilities, where persecutory or malicious intent has been required, has sought to demonstrate the importance of this legal question for asylum claims of persons with disabilities. The following subchapter will now examine whether a persecutory intent requirement is warranted in light of a disability-​specific understanding of the causal nexus pursuant to the vclt and the crpd. Persecutory Intent and a Disability-​Specific Approach 3 This subchapter elaborates an interpretation of the ‘for reasons of’ clause in Art. 1A(2) Refugee Convention in accordance with the interpretive rules of the vclt, particularly taking account of ‘the common intention’ of the States parties as expressed in international human rights law (on this see further Chapter ii.C.9 and C.10). The analysis will proceed according to the criteria set out in Arts. 31 and 32 vclt. As the focus is on asylum claims of persons with

53 54 55

X (Re) (Korean single mother suffering from schizophrenia) (2008) VA7-​ 02101 (irb (Canada)). X (Re) (Korean single mother suffering from schizophrenia) (n 53) at para. 33. X (Re) (Korean single mother suffering from schizophrenia) (n 53) at para. 44.

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disabilities, the crpd is also referred to as a supplementary means of interpretation (Art. 32 vclt). First of all, the ordinary meaning of the terms supports a wider interpretation of the causation requirement of ‘for reasons of’. The drafters of the Refugee Convention chose a wording which is different from other areas of law. In fact, the formulation ‘for reasons of’ used for the causation test in Art. 1A(2) is different from tests used in areas, such as criminal law, contract law or tort law.56 In Anglo-​Saxon criminal, contract or tort law, the causal link is typically described as ‘because of’, ‘but for’ or ‘on account of’.57 When considering the plain wording of the terms ‘for reasons of’, this formulation thus appears to be more open-​ended than other causation formulations. Formulations such as ‘on account of’ or ‘because of’ imply some controlling or directional element, which is absent from the formulation ‘for reasons of’.58 The reliance on other areas of law or different formulations of the causal link has given rise to wide discrepancies in the interpretation of the nexus clause.59 Other formulations, such as ‘but for’ have also been rejected as too simplistic.60 An interpretation of the causative requirement in the refugee definition should therefore focus on the ordinary meaning of ‘for reasons of’ and refrain from substituting this formulation with other formulations. The context of the Preamble of the Refugee Convention also confirms such a wider reading. The Preamble refers to ‘the widest possible exercise of fundamental rights and freedoms’. This indicates that a wide and inclusive, rather

56

57

58 59 60

The official German translation, which is not authoritative for the interpretation of the Refugee Convention, also appears to be inaccurate. ‘For reasons of’ is translated as ‘wegen’, meaning ‘because of’ or ‘on account of’ or ‘due to’. A literal translation would be something like ‘aus Gründen der …’ and would also imply a broader meaning than ‘wegen’. For a full discussion of the Common Law tests and a criticism of the ‘but for’ approach see hla Hart and Tony Honoré, Causation in the Law (Oxford University Press 1985); and see the summary of these discussions in Tony Honoré, ‘Causation in the Law’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Winter 2010 edition) ­chapter  3  ; for a discussion as to why the tests in tort law and equity are not appropriate for refugee law see Foster (n 41) 297–​317. Goodwin-​Gill and McAdam (n 16)  101; Zimmermann and Mahler (n 14)  374 mn 330; Carlier (n 22) 673–​675, 714–​715; Cook (n 22) 242. Zimmermann and Mahler (n 14)  372 mn 325; Foster (n 41); Hathaway and Foster (n 42) ­chapter 5. Foster (n 41) 281–​282; Hathaway and Foster (n 3) 471; Zimmermann and Mahler (n 14) 373 mn 327; and see the discussion of the ‘but for’ test in Islam v SSHD; R v IAT, ex p Shah [1999] 2 ac 629 (UK House of Lords) (Lord Hoffman) as being an overly simplistic test.

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than a narrow and restrictive, reading of the refugee definition is warranted. A persecutory intent approach to the ‘for reasons of’ clause is incompatible with such a wide reading.61 In addition to the ordinary meaning and the context, the object and purpose underlying the causal link requirement indicates the need for a wider interpretation, regardless of a persecutory motive or intent of the persecutor. The object and purpose of the ‘for reasons of’ clause is to limit the scope of protection of the Refugee Convention to those groups who fear being persecuted for a Convention ground, a personal attribute which they cannot change or cannot be required to change, or which sets them apart in society.62 The reason for this limitation on the refugee definition is to protect victims whose ‘position within the home community is not just precarious’, but where there is ‘also an element of fundamental marginalization which distinguishes them from other persons at risk of serious harm’.63 The protection-​oriented object and purpose supports a reading of the causal nexus clause based on objective criteria, rather than the subjective mind of the persecutor. Thus, in light of the object and purpose of the refugee definition, a persecutory intent is not required. As Zimmermann and Mahler point out:64 The determination of the causal connection between acts of persecution on the one hand, and one or more of the 1951 Convention grounds on the other, therefore needs to be made on the basis of an objective assessment of the underlying reasons for persecution, rather than being based on the subjective motivation of the respective persecutor. More specifically, the object and purpose of the causal link is that the refugee definition is limited to situations where there is a discriminatory element. Such a discriminatory element does not depend on the subjective mind of the persecutor, but may be present in situations where the persecutory intent is missing. As the UK Court of Appeal held in Sepet and Bulbul v. sshd (per Laws lj):65

61 62 63 64 65

Sepet and Bulbul v Secretary of State for the Home Department [2001] ewca Civ 681 (UK Court of Appeal) at para. 92, cited in Mark Symes and Peter Jorro, Asylum Law and Practice (2nd edn, Bloomsbury Professional 2010) 256 mn 4.33. Zimmermann and Mahler (n 14) 374 mn 331. James Hathaway, The Law of Refugee Status (1st edn, Butterworths 1991) 135. Zimmermann and Mahler (n 14) 374 mn 331. Sepet and Bulbul v Secretary of State for the Home Department (n 61)  at para. 93, per Laws lj.

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The question is always whether the asylum claimant faces discrimination on a Convention ground. There will be, are, cases where that is made out by reference to the persecutor’s motives. There will be, are, others where his motive matters not. Thus, in one respect evidence of intent or motive is pertinent, insofar as it is normally dispositive of the question whether there is a causal connection.66 Where a persecutor’s motive is the persecutee’s disability, the causal connection is satisfied. Conversely, the absence of intent or motive is not conclusive.67 Evidence of persecutory intent is always sufficient, but persecutory intent is not a necessary condition for establishing the causal link. Furthermore, it is important to reiterate the difference between the object and purpose of the international refugee law regime and the international criminal law regime. In contrast to international criminal law, the aim of the refugee law regime is not to punish persecutors so that ‘requirements to prove intent in the criminal law field may not be transferable to the refugee law field’.68 In view of the humanitarian goal of the refugee law regime, which is remedial rather than punitive, the intent of the perpetrator of the persecutory acts cannot be determinative of the causal link.69 The goal of the nexus clause is merely to ‘delimit the beneficiary class’ on the basis of the Convention grounds, ‘not to deter or to punish particular kinds of invidiously motivated acts’.70 In addition, the object and purpose of the refugee definition also suggests that the use of causation tests from other areas of law is misguided. For refugee status determination is different from other areas of law, such as civil or criminal liability directed solely at the assessment of past events. Instead, refugee law is ‘protection-​oriented and forward-​looking’, so that standards of causation developed in the context of other areas of international

66 67 68 69

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Hathaway and Foster (n 3) 461 mn 2; Goodwin-​Gill and McAdam (n 16) 101; Jason Pobjoy, The Child in International Refugee Law (Cambridge University Press 2017) 158. Goodwin-​Gill and McAdam (n 16) 101. Foster (n 41) 58 and see the discussion of this in Chapters ii and iii of this book. Foster (n 41) 58; see also Jane McAdam, ‘Interpretation of the 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011) 107 mn 97; and Volker Türk and Frances Nicholson, ‘Refugee Protection in International Law: An Overall Perspective’ in Erika Feller, Volker Türk and Frances Nicholson (eds), Refugee Protection in International Law (unhcr 2003) 38. Hathaway and Foster (n 3) 468 mn 28.

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or domestic law, which focus on past events, should not be assumed to be relevant to refugee law.71 Indeed, as Rodger Haines of the New Zealand rsaa has pointed out:72 … questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise. Even within discreet areas of the law different causation standards apply, depending on the relevant underlying policy considerations. The non-​discrimination principle thus forms the teleological backbone of the causal nexus clause and anti-​discrimination law. The prohibition of discrimination is focused more closely on the provision of remedies rather than allocation of responsibility.73 Indeed, given that the nexus clause’s object and purpose is the non-​discrimination principle, Hathaway and Foster argue that the non-​discrimination principle in international human rights law ought to serve as a basis for delineating the contours of ‘for reasons of’:74 [The non-​discrimination principle] thus represents a principled and sound means of drawing a regrettably necessary distinction since it identifies those potential human rights victims who are fundamentally marginalized in their state of origin.75 Indeed, in order to ensure a reading of the nexus clause, which also aligns with state parties’ obligations under international human rights law, it is necessary to turn to international human rights law, which may assist as a supplementary means of interpretation. In particular, in the context of cases concerning refugees with disabilities, it is instructive to look to the interpretation of the prohibition of discrimination under the crpd, which as demonstrated in Chapter ii of this book enjoys wide state support. Art. 2 crpd defines discrimination as follows:

71 72 73 74

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‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (2002) 23 Mich. J. Int’l L. 207, 215, 217 mn 11. Refugee Appeal No. 72635/​01 (n 20) at para. 167. Foster (n 41) 336; see also e.g. Cook (n 22) 243. Hathaway and Foster (n 42) 363; Jean-​Yves Carlier, ‘Et Genève Sera … La Définition Du Réfugié : Bilan et Perspectives’, La Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés 50 Ans Après : Bilan et Perspectives (Bruylant 2001) 82 pointing to the discriminatory character of the five Convention grounds. Hathaway and Foster (n 42) 363.

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“Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. In addition, Art. 5 crpd provides for ‘Equality and Non-​discrimination’ and sets out the following state obligations in relation to discrimination against persons with disabilities: 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention. Art. 2 crpd does not impose any freestanding obligations regarding non-​ discrimination but can only be invoked in conjunction with other substantive rights under the crpd.76 Art. 5, on the other hand, provides for a freestanding obligation which can be invoked in conjunction with any right, whether in domestic or international law.77 In addition, the prohibition of discrimination in Art. 5 crpd is complemented by specific such prohibitions in substantive crpd articles, such as Art. 6 on women with disabilities, Art. 23 in relation to marriage, family, parenthood, and relationships, Art. 24 regarding the right to education and Art. 27 regarding the right to work.78

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HM v Sweden un Doc crpd/​c /​7/​d /​3/​2011 (crpd Committee) at para. 7.3; see further Rachele Cera, ‘Article 2 [Definitions]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 111. Rachele Cera, ‘Article 5 [Equality and Non-​Discrimination]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 160. Cera (n 77) 161.

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The scope of the prohibition of discrimination in the crpd is pertinent to a disability-​specific reading of the refugee definition in Art. 1A(2) Refugee Convention. Art. 2 crpd covers both direct and indirect discrimination and, as a first in international treaty law, also prohibits the denial of reasonable accommodation.79 It is thus not limited to direct, intentional acts of discrimination, but also covers situations of discriminatory effect. Similarly, Art. 5 crpd covers direct, indirect, structural or systemic, and multiple forms of discrimination.80 The prohibition of discrimination thus extends beyond examples of direct, intentional discrimination to situations of discriminatory effect, which are covered by the prohibition of indirect discrimination and by the prohibition of denials of reasonable accommodation (on this, see further below subchapter C). The crpd Committee states in its General Comment No. 6 on Equality and Non-​Discrimination that Art. 5 crpd provides for an independent right to non-​discrimination, which prohibits both ‘de jure and de facto discrimination in any field regulated and protected by public authority’.81 It defines indirect discrimination in the context of persons with disabilities as follows:82 “Indirect discrimination” means that laws, policies or practices appear neutral at face value but have a disproportionate negative impact on a person with a disability. It occurs when an opportunity that appears accessible in reality excludes certain persons owing to the fact that their status does not allow them to benefit from the opportunity itself. For example, if a school does not provide books in Easy-​Read format, it would indirectly discriminate against persons with intellectual disabilities, who, although technically allowed to attend the school, would in fact need to attend another. Similarly, if a candidate with restricted mobility had a job interview on a second floor office in a building without an elevator, although allowed to sit the interview, the situation puts him/​her in an unequal position;… 79 80

81 82

Cera (n 76)  112–​113, also referring to the crpd Committee’s decision H.M. v Sweden (n 76) at para. 7.3 in which the Committee alluded to indirect discrimination. crpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ un Doc crpd/​c /​g c/​6, 26 April 2018 at para. 18; Cera (n 77) 162; crpd Committee, ‘General Comment No. 3 (2016), Article 6: Women and Girls with Disabilities’ un Doc crpd/​c /​g c/​ 3, 2 September 2016 at para. 4. crpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ (n 80) at para. 13. crpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ (n 80) at para. 18(b).

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Concerning examples of inequality for persons with disabilities, the crpd Committee points to the following:83 Examples include the enduring prejudice, stigma and misperceptions against persons with disabilities in society, including harmful and negative stereotypes of disability in the media, and the promotion of charity, welfare and medical approaches to disability, despite their incompatibility with the Convention. Therefore, a requirement of persecutory intent, and indeed any intent, is unduly restrictive and stands in direct conflict with the understanding of discrimination against persons with disabilities under the crpd and in fact serves to perpetuate discriminatory attitudes against persons with disabilities. The travaux préparatoires as supplementary means of interpretation (Art. 32 vclt) also confirm that a requirement of persecutory intent is not warranted. The debate in the Ad Hoc Committee and the Conference of Plenipotentiaries does not provide support for a reading of the causal link which requires persecutory intent. As Goodwin-​Gill and McAdam point out, the ‘travaux préparatoires suggest that the only relevant intent or motive would be that, not of the persecutor, but of the refugee or refugee claimant: one motivated by personal convenience, rather than fear, might be denied protection’.84 The discussions during the drafting of the Convention focused on the question whether there should be a definition of a refugee in general terms or one with a detailed description of the different categories of refugees.85 But the subjective state of mind of the persecutor was never mentioned and it is not suggested anywhere that the motive or intent of the persecutor should be a controlling factor of the refugee definition.86 As a further supplementary means of interpretation, state and unhcr practice also support this conclusion. While for practical reasons no unanimous state practice can be established satisfying the requirements of subsequent practice according to Art. 31(3)(b) vclt,87 a clear trend can be discerned in 83 84 85

86 87

icrpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ (n 80) at para. 2.bid. Goodwin-​Gill and McAdam (n 16) 102. Goodwin-​Gill and McAdam (n 16) 101; Hathaway and Foster (n 3) 467 mn 23–​24 are of the view that the drafters intended to respond to acts of persecution which were in fact inflicted because of the victim’s protected characteristics, but that such historical intent would need to be balanced against the need to protect modern day refugees. Goodwin-​Gill and McAdam (n 16) 101. Guy S Goodwin-​Gill, ‘The Search for the One, True Meaning …’ in Guy S Goodwin-​Gill and Hélène Lambert (eds), The Limits of Transnational Law: Refugee Law, Policy Harmonization

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state practice of asylum states in relation to the requirement of a persecutory or malicious intent under the causal nexus clause. This as well as the position of unhcr serves as supplementary means of interpretation according to Art. 32 vclt. As regards state practice, the position in the US is the outlier. However, even in the US, it has been expressly recognised in the context of child asylum claims that persecutory intent does not always need to be established. For instance, child asylum applicants may not be in the position to understand their persecutor’s intent.88 In addition, adults may ‘persecute’ children ‘without viewing it as such’.89 In the aftermath of Elias-​Zacarias, it was stressed that this was a narrow decision, based on its own facts and inconsistent with existing US case law on the refugee definition.90 But the requirement of persecutory intent has proved fatal to many otherwise deserving asylum claims in the US.91 There is some relaxation of this requirement in practice, as demonstrated in the case of Pitcherskaia set out above.92 It is important to note that the US approach in Elias-​Zacarias has been expressly rejected in other jurisdictions. In the UK and New Zealand, courts have rejected the persecutory intent approach with express reference to Elias-​ Zacarias.93 In Canada and Australia, the approach has been rejected more generally.94 Similarly, in the European Union, the EU Recast Qualification

88 89 90

91 92 93

94

and Judicial Dialogue in the EU (Cambridge University Press 2012) 209 fn 4 as many states do not even have a refugee status determination procedure in place. US Department of Justice, ‘Guidelines for Children’s Asylum Claims’ 10 December 1998 21. US Department of Justice (n 88) 21, cited in Hathaway and Foster (n 42) 370. Deborah Anker, Carolyn P Blum and Kevin R Johnson, ‘INS v. Zacarias: Is There Anyone Out There’ (1992) 4 International Journal of Refugee Law 267; see also Cook (n 22); and the dissent of Ferguson J in Gustavo Tecun-​Florian v INS (2000) No. 98-​70682 (United States Court of Appeals for the Ninth Circuit). Cook (n 22) 241. Anker (n 29) 369–​370. For the UK see Sepet and Bulbul v Secretary of State for the Home Department (n 61) at para. 92 where Laws LJ states: ‘I should with great deference but no hesitation reject out of hand the view that the autonomous, international meaning of the Convention involves the proposition that the whole sense of “for reasons of …” has a single reference, namely the motive of the putative persecutor’; and K and Fornah v Secretary of State for the Home Department [2007] 1 ac 412 (hl) (House of Lords) at para. 17 (Lord Bingham); for New Zealand see Refugee Appeal No. 72635/​01 (n 20) at para. 169 in which rpg Haines states that ‘we respectfully, but nevertheless strongly disagree with the contrary view expressed in’ Elias-​Zacarias’. For Australia see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (n 35); and Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14 (High Court of Australia) at para. 36; for Canada see e.g. Cheung v Canada (Minister of Employment and Immigration) (n 42).

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Directive only requires ‘a connection’ between the Convention ground and either the acts of persecution or the failure of state protection, but does not provide for further limitations on this connection requirement. unhcr has generally emphasised that singling out or targeting are unwarranted requirements.95 As regards persecutory intent, unhcr has expressly rejected such a requirement in its recent guidelines on lgbti asylum claims and those on trafficking victims. As regards trafficking victims, unhcr has stressed in its International Protection Guidelines No. 7 that although the prime motivation for their persecution is regularly monetary in nature, trafficking victims may nevertheless be targeted for reasons of Convention grounds.96 Similarly, unhcr has rejected persecutory intent in the context of ‘curing’ or ‘treating’ lgbti applicants in its International Protection Guidelines No. 9:97 Perpetrators may rationalize the violence they inflict on lgbti individuals by reference to the intention of “correcting”, “curing” or “treating” the person. The intent or motive of the persecutor can be a relevant factor to establishing the “causal link” but it is not a prerequisite. There is no need for the persecutor to have a punitive intent to establish the causal link. Furthermore, the persecutory intent approach has also been widely criticized by scholars98 and in the Michigan Guidelines on Nexus to a Convention Ground.99 95 96

97 98

99

unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ April 2001 6 mn 20 . unhcr, Guidelines on International Protection No. 7:  The Application of Article 1A(2) of the 1951 Convention and/​or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (un Doc hcr/​g ip/​06/​07, 7 April 2006) at para. 31. unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 48) para. 39. Goodwin-​Gill and McAdam (n 16) 100–​101; Michelle Foster, International Refugee Law and Socio-​Economic Rights –​Refuge from Deprivation (Cambridge University Press 2009) 264–​ 268; Hathaway and Foster (n 42)  369–​373; ‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (n 71) at paras. 9–​10; Francesco Maiani, ‘La Définition de Réfugié Entre Genève, Bruxelles et Berne –​Différences, Tensions, Ressemblances’, Schweizer Asylrecht, EU-​ Standards und internationales Flüchtlingsrecht:  Eine Vergleichsstudie (Stämpfli Verlag ag 2009) 43. ‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (n 71) para. 10.

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Similarly, the principle of effectiveness in treaty interpretation speaks against a definition of ‘for reasons of’ which requires any evidence of intent. Requiring evidence of a persecutory, or any intent, raises obvious evidentiary difficulties, as ‘in certain, or indeed many, cases there will be no evidence of what was going on in the persecutor’s mind’.100 As Kirby J noted in Chen Shi Hai, ‘the Convention will ordinarily be invoked in a foreign country where an enquiry into the motives and feelings of the alleged “persecutors” will be extremely difficult or impossible to perform’.101 4 Conclusion on Persecutory Intent The examples of case law in subchapter B.2 above have demonstrated that a requirement of persecutory intent is prohibitive in many cases involving persons with disabilities. The analysis in subchapter B.3 has, however, shown that a reading of the ‘for reasons of’ clause which is in line with the vclt and disability-​specific does not support a persecutory intent requirement. The ordinary meaning, the context and the object and purpose of the causal nexus clause do not support such a narrow reading. Nor do supplementary means of interpretation, particularly unhcr’s and state practice, support the imposition of such a restrictive requirement. Furthermore, the principle of effectiveness also clearly supports the conclusion that a persecutory intent requirement would defeat the protection-​oriented purpose of the Refugee Convention. Finally, and most importantly for present purposes, a reading which focuses on the persecutor’s motives or intent is incompatible with States parties’ obligations in international human rights law, and particularly the crpd, which constitutes a further supplementary means of interpretation. A  disability-​ specific refugee definition requires a wider reading of the nexus clause. This becomes evident when one looks to the protection principles underlying the crpd. The prohibition of discrimination that has been included in the crpd is deliberately wide in its reach. In no way is it limited to intentional or targeted discrimination, but it in fact extends far beyond such instances of direct discrimination to indirect discrimination, or discriminatory effect, and even

100 Zimmermann and Mahler (n 14) 373 mn 330; Hathaway and Foster (n 42) 371; see also Bruce Burson, ‘Give Way to the Right: The Evolving Use of Human Rights in New Zealand Refugee Status Determination’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 30 fn 27; Symes and Jorro (n 61) 256. 101 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (n 35) at para. 64 (Kirby J); Refugee Appeal No. 72635/​01 (n 20) at para. 171, both also cited in Symes and Jorro (n 61) 258 fn 4.

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denials of reasonable accommodation. A disability-​specific interpretation of the ‘for reasons of’ clause thus clearly requires the abolition of a persecutory intent requirement. C

Causal Nexus, Persecutory Effect and Omissions

Introduction 1 It has been established in the preceding subchapter that a requirement of persecutory intent is not compatible with a disability-​specific refugee definition. However, even if no persecutory intent, no malicious intent, may be required, is there still a requirement of intent? Does there have to be intentional conduct, even if not motivated by malignity, at least either on the part of the state or on the part of non-​state actors? What if an applicant finds herself in the situation of being persecuted not due to any state or private action, but due to state inaction because of an inability? What if there is a persecutory effect without any intent or motive on the part of anyone? Does the Refugee Convention protect against being persecuted through state omissions? Is such a persecutory situation (provided it is established, of course, that the situation meets the threshold of persecution, on this see further Chapter iii of this book) also ‘for reasons of’ the person’s disability? In general, courts tend to distinguish, at least implicitly, between situations which involve state omissions as to the duty to protect human rights, and state omissions as to the duty to promote or fulfil. This can be illustrated in the context of the bifurcated approach. 2 The Bifurcated Approach The ‘bifurcated approach’ to the refugee definition applies in the context of cases involving non-​state actor persecution. In such cases, it is only necessary that either the persecutory act of the non-​state actor, or the failure of the state to protect against this act is linked to a Convention ground. Therefore, in cases involving non-​state actor persecution, it is sufficient if intent exists on the part of non-​state actors, while the nexus may also exist between the Convention ground and the failure of the state to protect against persecution at the hands of non-​state actors. It is now fairly uncontroversial that a failure of a state to protect individuals from persecution at the hands of non-​state actors is sufficient to found an asylum claim.102 In such cases, it is sufficient that there is 102 Hathaway and Foster (n 42)  373–​376; Musalo (n 14)  vii; Zimmermann and Mahler (n 14) 374 mn 332; Maiani (n 98) 43.

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a nexus between the Convention ground and either the serious harm or the failure of state protection. This is aptly put by unhcr in its International Protection Guidelines No. 2:103 This reasoning may be summarized as follows. The causal link may be satisfied: (1) where there is a real risk of being persecuted at the hands of a non-​State actor for reasons which are related to one of the Convention grounds, whether or not the failure of the State to protect the claimant is Convention related; or (2) where the risk of being persecuted at the hands of a non-​State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for a Convention reason. For instance, the question whether a state fails to protect victims of domestic violence, either because of an attitude of tolerance towards violence against women, or because of a lack of resources is immaterial.104 As Gleeson J of the High Court of Australia emphasised in the Australian leading case on domestic violence, Minister for Immigration and Multicultural A ­ ffairs v. ­Khawar:105 If there is a persecutor of a person or a group of people, who is a “non-​ state agent of persecution”, then the failure of the state to intervene to protect the victim may be relevant to whether the victim’s fear of continuing persecution is well-​founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it.

103 unhcr, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ Within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​g ip/​02/​02, 7 May 2002) at para. 23; see also unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 4) at para. 21. 104 Maiani (n 98) 43. 105 Minister for Immigration and Multicultural Affairs v Khawar (n 94) at para. 29 (Gleeson J); on the bifurcated approach see also Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] fca 334 (Federal Court of Australia) at para. 2 stating that ‘use of the passive voice conveys a compound notion, concerned both with the conduct of the persecutor and the effect that conduct has on the person being persecuted’.

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Similarly, the House of Lords endorsed the bifurcated approach in the UK seminal case on victims of domestic violence, Shah and Islam.106 The rationale behind its reasoning was forcefully explained by Lord Hoffmann. In an oft-​cited example, Lord Hoffmann referred to the Jewish shopkeeper who was attacked by a gang of Aryan competitors for reasons of business rivalry. While not motivated by his religion, but by greed, the Aryan gang acted in this way because they knew that he would not be protected by the state authorities. Intent or motive were present on the part of the state failing to protect, but not on the part of the private actors.107 The New Zealand rsaa and the Canadian courts have equally endorsed the bifurcated approach.108 In the same vein, the Recast Qualification Directive109 now provides in Art.  9(3) that the connection must exist between the Convention grounds ‘and the acts of persecution […] or the absence of such protection’, specifically amending its predecessor Qualification Directive which only provided for a connection to the ‘acts of persecution’ but not the lack of state protection.110 The US appears to be the only major common law jurisdiction that has not adopted this approach,111 although some more recent decisions suggest a trend away from requiring persecutory intent on the part of the perpetrator of persecution.112 106 Islam v SSHD; R v IAT, ex p. Shah (n 60); see also Horvath v Secretary of State for the Home Department [2000] inlr 15 (UK Court of Appeal) (Hale lj). 107 Islam v SSHD; R v IAT, ex p. Shah (n 60) (Lord Hoffmann), cited in Symes and Jorro (n 61) 255 mn 4.32; as well as Hathaway and Foster (n 42) 373–​374. 108 Refugee Appeal No 71427/​99 [2000] nzar 545 (New Zealand rsaa) at para. 112; for a Canadian e.g. in the context of domestic violence and disability, see X (Re) (uasc from Poland with disability) (2001) TA0-​05472 (irb (Canada)). 109 Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/​9, 20 December 2011. 110 See Council Directive 2004/​83/​EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, OJ L 204/​12, 30 September 2004 Art. 9(3); the bifurcated approach is also accepted in Switzerland, see Martina Caroni and others, Migrationsrecht (3rd ed, Stämpfli Verlag ag 2014) 259–​260. 111 In re R-​A-​[1999] 22 I & N Dec. 906 (US Board of Immigration Appeals) 906 requiring a causal link to the husband’s motive or intent in the context of a domestic violence claim. 112 Anker (n 29) 377–​378, referring to Valdiviezo-​Galdamez v Attorney General (2007) 502 F.3d 285 (United States Court of Appeals for the Third Circuit), and Velihaj v Attorney General (2009) 336 Fed. Appx. 193 (United States Court of Appeals for the Third Circuit).

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The bifurcated approach addresses situations, which in international human rights terms, would be known as violations of the state duty to protect. In these situations the requirement of some intent, on the part either of the state (by failing to protect) or of the non-​state actor, which is linked to a Convention ground, is regularly met. However, what if there is a persecutory situation, a persecutory effect, which is not attributable to any intentional act, but to an omission to act? What if an applicant is ‘being persecuted’ by state omissions? If through callous indifference the state fails to promote existential human rights of certain persons? If such a situation is linked to a Convention ground, such as disability, does this also satisfy the causal link requirement? Is a discriminatory effect sufficient or is some sort of discriminatory intent always required? The importance of this question for persons with disabilities will be illustrated in the next subchapter. Inability to Fulfil, Omissions and Discriminatory Effect in Cases of Persons with Disabilities In the context of asylum claims of persons with disabilities, the issue of state inaction often assumes paramount importance. Particularly in the context of socio-​economic rights, such asylum claims often fail due to the lack of a causal link, because omissions to fulfil are concerned. This may be explained at least in part by the fact that the duty of progressive realisation comes into play in this context. As Foster notes, in the context of the duty to fulfil socio-​economic rights, the duty of progressive realisation becomes more complicated.113 Contrarily, the duty of progressive realisation is not pertinent to the duty to respect (which concerns the core of socio-​economic rights and must be realised immediately), nor as complex in relation to the duty to protect.114 This may further render the duty to fulfil socio-​economic rights less attractive for refugee decision-​makers. One area of socio-​economic rights, which faces particular reluctance on the part of asylum decision-​makers and which is significant for persons with disabilities, is medical treatment. It is a recurring theme that in cases concerning asylum seekers from countries with significant resource constraints, courts regularly find no causal link between the disability or medical condition and the denial of medical treatment. This subchapter will consider examples of cases of persons with disabilities with medical needs. First, in Canada, a statute has introduced a more 3

1 13 Foster (n 98) 175. 114 Foster (n 98) 200–​201.

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restrictive approach to causal link in the context of medical asylum claims. Second, in relation to Australia, judicial practice has been particularly restrictive in this context, despite statute expressly providing for the lack of access to medical treatment as a basis for an asylum claim. These two jurisdictions are considered in more detail here, because they provide for some more elaborate analysis of cases involving medical needs. In many jurisdictions, such cases are still not even considered as asylum claims, but only on some other humanitarian grounds.115 In Canada, the Immigration and Refugee Protection Act 2001 (‘irpa’)116 defines who qualifies as a refugee. In addition to having to satisfy the Refugee Convention definition, the Immigration and Refugee Board must find the person to be in need of protection (ss. 95(1)(a) and (b) irpa). In the context of medical claims, a person is only in need of protection if the ‘risk to their life’ or the ‘risk of cruel and unusual treatment or punishment’ is ‘not caused by the inability of that country to provide adequate health or medical care’ (s. 97(1) (b)(iv) irpa). The legislative history to this provision explains that medical asylum claims were thought to be ‘more appropriately assessed through other means in the Act and are excluded from this definition’, as ‘[l]‌ack of appropriate health or medical care are not grounds for granting refugee protection under the Act’.117 In fact, this statutory limitation was likely considered necessary, because Canada has adopted a persecutory effect approach, which may have led to results that were too far-​reaching. For in the Canadian jurisprudence it is accepted that the causal link requirement can be met if there is a discriminatory effect, and no discriminatory intent or motive is required.118 In the leading case on this provision, Covarrubias v. Canada, the applicant sought to challenge s. 97(1)(b)(iv) irpa under the right to equality before the law (s. 15(1) of the Canadian Charter of Fundamental Rights and Freedoms).

115 See in Switzerland, where medical cases are regularly assessed under the head whether ‘enforcement of removal or expulsion would be unreasonable’ pursuant to Art. 83(1) and (4) Foreign Nationals Act; in Germany they receive a residence permit for reasons of exceptional hardship pursuant to Art. 25 Aufenthaltsgesetz; in Sweden, they mainly received residence permits on humanitarian grounds, but this has been repealed as of 20 July 2016, see aida, ‘Residence Permit:  Sweden’, . 116 sc 2001, c 27, . 117 Clause-​by-​clause analysis of Bill C-​11 referred to in Covarrubias v Canada 2006 fca 365 (Federal Court of Appeal (Canada)) para. 34. 118 Cheung v Canada (Minister of Employment and Immigration) (n 42); Naseem v Canada (Minister of Citizenship and Immigration) (n 42) at para. 7.

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However, the challenge failed for evidentiary reasons, because the Court found that there had been insufficient evidence to prove the applicant’s allegation that adequate health care, particularly the required dialysis treatment, would not be available to him in Mexico.119 More generally, the Federal Court of Canada held that the limitation in s. 97(1)(b)(iv) irpa is to be interpreted broadly, so that applicants relying on lack of medical treatment will ‘only in rare cases’ be able to establish that this requirement has been met.120 In its judgment, the Federal Court of Canada in Covarrubias set the threshold for medical asylum claims extremely high. The applicant bears a heavy burden of proving that a country’s reluctance to provide medical care is due to unwillingness only and not also inability, which ‘is not a task that courts can easily assess, except in cases such as the denial of health care on persecutorial grounds or similar bases’.121 This involves proving a ‘negative, that a country of origin is not unable to furnish medical care that is adequate’ for the applicant.122 Indeed, the Federal Court in Covarrubias acknowledged that the threshold set by it would be a ‘difficult evidentiary hurdle to overcome’.123 In practice, s. 97(1)(b)(iv) irpa together with the decision in Covarrubias has led to the refusal of the vast majority of asylum claims based on medical needs. While some cases have instead been allowed on humanitarian and compassionate grounds,124 the majority of cases fail mainly due to the high evidentiary hurdle to prove that a country’s failure to provide the required medical care is due to unwillingness rather than inability. In a line of cases involving persons with hiv from Burkina Faso, Zimbabwe and Mexico, Canadian decision-​makers found that the evidentiary burden of proving that the lack of the necessary anti-​retroviral treatment was due to discrimination rather than inability, had not been met.125 Similarly, the asylum 119 Covarrubias v Canada (n 117) at para. 60 referring to the decision of the trial judge, Mosley J, at paras. 47–​49. 120 Covarrubias v Canada (n 117) para. 31. 121 Covarrubias v Canada (n 117) para. 32. 122 Covarrubias v Canada (n 117) para. 31. 123 Covarrubias v Canada (n 117) para. 32. 124 See e.g. Stephenson v Canada (2011) 2011 fc 932 (Federal Court of Canada); Gondal v Canada (2012) 2012 fc 1384 (Federal Court of Canada). 125 Nebie v Canada (Citizenship and Immigration) 2015 fc 701 (Federal Court of Canada) concerning the refugee claim of an hiv positive man from Burkina Faso, finding no discrimination in the non-​provision of anti-​retroviral treatment, although there is strong evidence indicating discriminatory attitudes towards persons with hiv or aids in Burkina Faso; see for instance Melissa Neuman, Carla Makhlouf Obermeyer and The match Study Group, ‘Experiences of Stigma, Discrimination, Care and Support among People Living with hiv: A Four Country Study’ (2013) 17 aids and Behaviour 1796; similarly see Mare v

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claims of persons suffering from renal failure from St. Lucia and Mexico were dismissed on these grounds,126 as was the claim of a national from St. Vincent with a tumour, who required ongoing checks and treatment.127 However, in two important decisions concerning persons with disabilities, the Federal Court of Canada has criticised the restrictive approach of Covarrubias. The first of these is the Federal Court decision in the case of Yusuf v. Canada.128 The case concerned a Nigerian man who was hiv-​positive. The lower instance had decided that based on s. 97(1)(b)(iv) irpa it was not ‘within [its] mandate’ to assess the adequacy of health and medical care for the applicant in Nigeria. The Federal Court emphasized that the decision in Covarrubias did not mean that no case concerning the lack of medical care could ever succeed. Having cited Covarrubias, the Federal Court clarified that:129 This is not to say that the exclusion in subparagraph 97(1)(b)(iv) should be interpreted so broadly as to exclude any claim in respect of health care. The wording of the provision clearly leaves open the possibility for protection where an applicant can show that he faces a personalized risk to life on account of his country’s unjustified unwillingness to provide

126

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Canada 2001 fct 450 (Federal Court of Canada) also concerning a Burkinabe man with hiv, whose asylum claim was dismissed for the same reason; see also X (Re) (Zimbabwean man with hiv) (2005) CA4-​00446 et seq. (irb (Canada)) where the irb held that the applicant would be a ‘victim of a generalized deterioration of services caused by a complex combination of factors. Political upheaval, violence and instability, the resulting economic instability and increase in poverty, and a serious drought have drawn the country to the brink of political and economic collapse’, but there was no evidence of discrimination, which is a surprising finding in Zimbabwe which is known for strong discriminatory attitudes against persons with hiv or aids; see for instance Médecins Sans Frontières, ‘Fighting hiv and Stigma in Epworth, Zimbabwe’ (20 November 2014) ; and see Omar Antonio Chalita Gonzalez v The Minister of Citizenship and Immigration 2011 fc 1059 (Federal Court of Canada) at paras 35–​36 concerning a Mexican gay with hiv, whose asylum claim was also dismissed because the evidence generally demonstrated willingness to provide medical treatment despite some evidence of discriminatory treatment. X (Re) (St Lucian woman with end-​stage kidney disease) (2009) TA6-​00980 (irb (Canada)); X (Re) (Mexican man suffering from kidney failure) (2007) TA5-​05262 (irb (Canada)) in both cases it was found that the lack of available treatment would be due to inability, not discrimination on the part of the state. X (Re) (man from St Vincent with tumour) (2011) TY9-​17730 (irb (Canada)) there were no endocrinologists and neurologists or mri machines in St. Vincent, but it was found that the risk to his life was not due to discrimination, but general inability. Yusuf v Canada 2013 fc 591 (Federal Court of Canada). Yusuf v. Canada (n 128) at para. 34.

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him with adequate medical care, where the financial ability is present. For example, where a country makes a deliberate attempt to persecute or discriminate against a person by deliberately allocating insufficient resources for the treatment and care of that person’s illness or disability, as has happened in some countries with patients suffering from hiv/​a ids, that person may qualify under the section, for this would be refusal to provide the care and not inability to do so. However, the applicant would bear the onus of proving this fact. Thus, a deliberate decision to allocate insufficient resources for the treatment and care of a particular illness would meet the stricter causal link requirements in s. 97(1)(b)(iv) irpa. The Federal Court remitted the case noting that it was for the lower instance tribunal to verify whether Nigeria chose deliberately to allocate insufficient resources for the treatment and care of persons with hiv.130 A further example is the case of Ampong v. Canada concerning a Ghanaian man who in an assault in Canada had suffered a serious spinal cord injury (already discussed in Chapter iii of this book). As a result, he became paralysed in his legs, had only limited use of his arms and was incontinent. Due to the spinal cord injury, the applicant would require specialized medical care, without which there was a serious risk that he would suffer ‘serious illness and possible death’.131 One of the findings the officer had made was that he could not consider the issue of medical care as a result of s. 97(1)(b)(iv) irpa. The Federal Court stressed that persons with a disability made up 10% of the population in Ghana and continued:132 As a result, it is certainly possible that the Applicant may belong to a particular social group in Ghana which is discriminated against to the point of persecution, either based on discrimination in the delivery of health care, or the cumulative effects of other sorts of discrimination, including “multiple discrimination, from the home, the community and society at large and in terms of allocation of resources and opportunities.” The Court went on to hold that while inadequate health care in itself was not a foundation for a claim for refugee status  –​provided it was delivered 1 30 Yusuf v. Canada (n 128) at para. 35. 131 Ampong v Canada (Citizenship and Immigration) 2010 fc 35 (Federal Court of Canada), at para. 8. 132 Ampong v Canada (Citizenship and Immigration) (n 131) at para. 43.

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in a non-​discriminatory manner –​, ‘healthcare delivered in a discriminatory manner can be a foundation for a [refugee] claim’.133 These two cases illustrate a first problem of the Canadian approach.134 As a result of the statutory limitation, courts do not examine claims based on medical treatment at all, failing even in their limited duty to consider discriminatory refusal of treatment. The statutory limitation in s. 97(1)(b)(iv) irpa was intended to exclude consideration of persecutory effect in cases involving medical needs. However, it has resulted in the courts not considering such cases involving medical needs at all, even where there may be an element of discriminatory intent or motive. The restrictive approach regarding causation in cases involving medical treatment still pertains in Canada. In a relatively recent challenge to the Federal Court decision in Covarrubias based on the right to equality before the law in the Canadian Charter of Fundamental Rights and Freedoms failed in the case of a man from Barbados with hiv.135 The appeal was dismissed due to the high evidentiary bar, as there was no ‘adequate evidentiary context for the adjudication of the Charter issues raised’.136 In addition, a second issue arises with this approach, which will be called ‘the red flag approach’. Once decision-​makers are faced with an asylum claim partly based on medical needs, the lack of medical treatment seems to operate as a bar to any consideration of surrounding or cumulative risks to the applicant. Medical needs are like a red flag, once they are raised, none of the remaining circumstances of the case will be examined. Against this background, decision-​makers tend to ignore cumulative harms and cumulative discrimination, once medical treatment is also at stake. The following examples illustrate this. 133 Ampong v Canada (Citizenship and Immigration) (n 131) at para. 46, referring to Rodriguez Diaz v Canada (Minister of Citizenship and Immigration) [2009] 3 fcr 395, 2008 fc 1243 (Federal Court of Canada) at para. 35. 134 A similar approach can be detected in the US decision of Kholyavskiy v Mukasey No. 07-​ 1020, 28 August 2008 (US Court of Appeals for the Seventh Circuit) concerning the claim of a Russian man with mental health problems which had been denied because of unavailability of the medication. The Court held that there was ‘no evidence in the record to suggest that the unavailability of the medication is the result of the Russian government’s attempt to injure Mr. Kholyavskiy or, more generally, individuals with mental illnesses, and, as we have observed on many occasions, “the motive of those engaging in oppressive actions is a ‘critical’ element” of the asylum laws’; Hathaway and Foster (n 42) 236 fn 334 surprisingly cite this case with approval. 135 Spooner v Canada (Citizenship and Immigration) 2014 fc 870 (Federal Court of Canada) para. 29 (per Heneghan J). 136 Spooner v. Canada (Citizenship and Immigration) (n 135).

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In Stephenson v. Canada, a Jamaican man, who had no vision in his left eye and deteriorating vision in his right eye and had been diagnosed with glaucoma, eventually leading to almost complete sight loss, was refused recognition as a refugee.137 He depended on the support of his mother and two sisters who lived in Canada. The applicant further relied on the risk of cumulative discrimination, which extended beyond the lack of health care to unemployment for the visually impaired as a result of inaccessible workplaces and low levels of training and experience. In Canada, he had been able to find part-​time work as a janitor. The Federal Court held that the inability to provide the applicant with health care would be due to ‘legitimate political and financial priority reasons’. The officer, whose analysis the Federal Court found to be reasonable, had analysed each of the predicaments separately, lack of health care and education, as well as unemployment, finding that none was solely caused by the medical condition. 73% of unemployed persons in Jamaica suffered from a visual impairment. Regarding health care alone, the heavy evidentiary burden under s. 97(1)(b)(iv) irpa could not be discharged.138 However, had the court analysed the cumulative element on which the applicant had relied, namely the lack of healthcare, education and employment, it would have likely found his visual impairment to constitute a sufficient contributing factor to his predicament upon return to Jamaica. A further example where cumulative harms were not assessed, because one of the issues was access to medical treatment, is Louis v. Canada.139 In this case the Federal Court refused the asylum claim of a man with paranoid schizophrenia from Trinidad and Tobago, who was partially unable to care for himself, to exercise his civil rights and to administer his property. The Court confirmed the officer’s finding that any risk that the applicant would face was not ‘personalised’, as there was no evidence of persecution of persons with mental illness. While he would face ‘difficulties of integration’, these were found not to amount to persecution and the applicant therefore failed to meet the threshold of s. 97(1)(b)(iv) irpa.140 However, the Court did not consider further that country background evidence on Trinidad and Tobago indicated that violence and discrimination against persons with mental illness was rife, something that would have been pertinent to a

1 37 138 139 140

Stephenson v Canada (n 124). Stephenson v Canada (n 124) at paras. 46, 51–​54. Louis v Canada 2012 fc 1055 (Federal Court of Canada). Louis v Canada (n 139) at para. 27.

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consideration of the causal link between the mental illness and the serious harm.141 Further examples of cumulative harms include the case of a Colombian man who was hearing impaired and mute, fearing death and cruel and inhuman treatment,142 a gay man with hiv from Swaziland who feared ostracism, stigma and death,143 the claim of a Mexican single mother with a son suffering from epilepsy and hyperactivity whose teacher in Mexico had issued death threats against the mother for complaining about the deplorable treatment of her son in school,144 the claim of a man from Saint Vincent and the Grenadines with membranous nephropathy and chronic kidney disease who feared discrimination and lack of employment opportunities in addition to the need for hemodialysis three times a week,145 and a Lebanese single mother with a child who had been born with spina bifida and was severely handicapped and required specialised education in addition to his medical condition.146 In all of these cases, the irb only considered the need for medical treatment and failed to take into account the cumulative effect of the various harms. While all or some of the cases may not have succeeded in the end, the issue remains that these applicants stood no chance of putting their risk of being persecuted before the judge, because decision-​makers considered that any examination of cumulative harms was excluded by statute. Instead of considering the situation in the round, courts disregarded remaining harms, once the issue of lack of medical treatment was raised.147 141 T’Shara Mills, ‘Violent Crime and Mental Illness in Trinidad and Tobago’ (2006) 11 Caribbean Dialogue; Cherisse Moe, ‘Schizophrenia –​Taking Back Control’ The Trinidad Guardian Newspaper (19 April 2012). 142 X (Re) (Colombian man with hearing impairment and mute) (2005) TA3-​22761 (irb (Canada)). 143 X (Re) (gay man with hiv from Swaziland) (2009) TA6-​16825 (irb (Canada)). 144 X (Re) (Mexican single mother with son with epilepsy) (2007) MA6-​06101 (irb (Canada)). 145 Shallow v Canada (Minister of Citizenship and Immigration) [2019] fc 911 (Federal Court of Canada). 146 X (Re) (Lebanese single mother with child born with spina bifida) (2000) T99-​00524 (irb (Canada)). 147 A similar problem can be detected in the refoulement context in Europe, where the ECtHR’s strict approach to medical refoulement cases under Art. 3 echr has led to a lack of appreciation of all the circumstances of the case, see eg SHH v United Kingdom app no 60367/​10 (ECtHR, 29 January 2013) concerning a wheelchair-​bound Afghan man to be returned to Kabul, the least of whose problems was lack of medical treatment; AS v Switzerland app. no. 39350/​13, 30 June 2015 (ECtHR) concerning a Syrian torture victim who crucially depended on the emotional support of his two adult sisters in Switzerland for his psychological stability; SJ v Belgium ( formerly known as Josef v Belgium) app no 70055/​10 (ECtHR, 27 February 2014) concerning a mother of three children suffering from

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This was criticized by the Federal Court of Canada in a more recent decision. In Ferreira v. mci148 the Federal Court of Canada considered the asylum claim of a Jamaican man suffering from schizophrenia, who had committed a number of crimes as a result of his illness. In Jamaica he feared lack of care, physical mistreatment, criminality and harsh incarceration. Due to his illness, the absence of medical treatment and the lack of family support in Jamaica, the applicant had claimed that he would be exposed to a risk of harm as a homeless, crime-​prone, mentally ill deportee, with no material resources or family support. The Federal Court remitted the case finding that the lower instance had failed to take into account that the lack of access to medical treatment did not relate to the inability of Jamaica to provide adequate medical care, but to the applicant’s inability to benefit from any care due to his personal situation and lack of family or professional support in Jamaica.149 In particular, the Federal Court placed weight on the fact that in Jamaica he would have no medical oversight or family support, whereas in Canada he had the support of his mother and a community worker who both helped ensure that he stayed on his medication.150 As a result, the claim did not merely focus on the level of healthcare in Jamaica but on other factors, such as the support network he had. In Jamaica, the Federal Court held, he would ‘likely be drawn into a life of homelessness, crime and incarceration in a country where the mentally ill endure undeniable hardship’.151 This judgment of Canada’s Federal Court demonstrates that a disability-​specific reading of s. 97(1)(b)(iv) irpa is possible in cases involving persons with disabilities and ­medical needs. In conclusion, s. 97(1)(b)(iv) irpa and Covarrubias have had the effect of a red flag in the vast majority of asylum cases involving persons with disabilities. Even where the need for medical treatment may have been a subordinate or minor aspect of the case, once it arose as an issue, this operated as a bar to the consideration of all of the harms in the case, even though there may have been

148 1 49 150 151

an advanced stage of aids and who would die shortly after her expulsion leaving her children orphaned; all of these cases were examined under the extremely restrictive test of D v United Kingdom app no 30240/​96 (ECtHR, 2 May 1997), and N v United Kingdom app no 26565/​05 (ECtHR (gc), 27 May 2008) where cases involving medical needs can only succeed in ‘very exceptional circumstances’; for the slightly lowered threshold for medical cases since then see now Paposhvili v. Belgium (n 9). Ferreira v Canada (Citizenship and Immigration) (2014) 2014 fc 756 (Federal Court of Canada). Ferreira v. Canada (Citizenship and Immigration) (n 148) at para. 14. Ferreira v. Canada (Citizenship and Immigration) (n 148) at para. 12. Ferreira v. Canada (Citizenship and Immigration) (n 148) at para. 13.

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a cumulative effect of the harms. Some criticism of this effect can, however, be detected in the Federal Court’s decision in Ferreira. A similar issue can be observed in cases where there is a general intent or motive requirement for the causal link. It is therefore instructive to look to the approach taken in Australia, where a motive or intent requirement still applies, while statutory law at the same time expressly provides for the possibility of lack of access to medical treatment as founding an asylum claim. Under s. 5J of the Australian Migration Act152 persecution involves ‘serious harm’ to the applicant (s. 5J(4)(b) Migration Act), and systematic and discriminatory conduct (s. 5J(4)(c) Migration Act). The expression ‘serious harm’ includes a threat to ‘life or liberty’ (s. 5J(5)(a) Migration Act) and the ‘denial of access to basic services, where the denial threatens the person’s capacity to subsist’ (s. 5J(5)(e) Migration Act).153 Statute law thus interprets the Refugee Convention as applying to situations involving a denial of access to basic services, provided this threatens the applicant’s ability to subsist. However, in line with the general approach in Australia it is necessary to show that disability was the intent or motive for the lack of medical treatment. In practice, the threshold for meeting the causal link requirement has been set very high. This can be illustrated by reference to the following decision of the Federal Court of Australia. In Salem Subramaniam & Ors v. Minister for Immigration & Multicultural Affairs concerning an Indian child with upper airway obstructions and developmental delay the Federal Court of Australia held that there was no causal link.154 The child required intensive educational assistance and on-​going medical treatment, for both of which resources in India were either in short supply or not available at all. It was accepted that the treatment the applicant child would face in India would violate various provisions of the crc. However, the Federal Court of Australia found that the hardship he would indisputably have to endure would not be 152 Migration Act 1958, ; this applies to protection applications decided after 16 December 2014, see The Library of Congress, ‘Refugee Law and Policy:  Australia’ . 153 This is very similar to the previous formulation in the former s. 91(R)(1) Migration Act, which provided that persecution had to involve ‘serious harm’ to the applicant (s. 91R(1) (b) Migration Act), and systematic and discriminatory conduct (s. 91R(1)(c) Migration Act), and ‘serious harm’ included, for example, a threat to life or liberty, or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist (s. 91R(2) Migration Act). 154 Salem Subramaniam & Ors v Minister for Immigration & Multicultural Affairs [1998] fca 483 (Federal Court of Australia).

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‘for reasons of’ his disability.155 It had been argued that the Tribunal had erroneously focused on some kind of intent on the part of the Indian state and that instead, it should have found the necessary link to the disability ‘in the differential impact of actions on particular persons or classes of persons’.156 In addition to this issue concerning the duty to fulfil, however, it was argued that in the Hindu belief, disabilities were attributed to Karma, so that there was societal discrimination and the state did not invest in any measures to prevent discrimination against persons with disabilities. Taking into account recent Indian legislation on the rights of persons with disabilities, the Federal Court held:157 In my opinion, the Tribunal’s approach to the matter was correct. The Tribunal concluded that there is no intention in India to ignore, harm or oppress disabled or handicapped persons. There is simply a lack of the sophisticated facilities which a country such as Australia can provide. […] The Tribunal concluded that the difficulties which Ganesh would face in India arose not from the fact that there were facilities in India of which he would not be able to take advantage, but from the fact that such facilities were not yet available in India. Thus the Federal Court focused exclusively on the question whether the lack of medical treatment was linked to a lack of resources. As the answer to this question was yes, other factors, such as the discrimination that the child would face, were not taken into account. Thus, in practice a similar approach to the one discussed above in relation to Canada can be detected in the Australian case law. Cumulative harms are ignored when medical needs are involved. In addition, in line with the approach generally adopted in Australia, discriminatory effect is not taken into account at all. The fundamental problem with the restrictive approaches set out above, either in statutory law or in practice, is that the resulting approach to asylum claims denies protection to a majority of persons with disabilities who are being persecuted in their countries of origin. On the one hand, it imposes an intentional requirement for the causal link, which in practice is virtually impossible to meet in cases involving omissions to fulfil. On the other, a red flag approach to refugee cases involving medical needs results in the risk of disregard of cumulative harms and discrimination, and thus a failure to properly 1 55 Salem Subramaniam & Ors v Minister for Immigration & Multicultural Affairs (n 154). 156 Salem Subramaniam & Ors v Minister for Immigration & Multicultural Affairs (n 154). 157 Salem Subramaniam & Ors v Minister for Immigration & Multicultural Affairs (n 154).

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assess the issue of causal link in the round. As the next subchapter demonstrates, this approach imposes an impermissibly restrictive standard under the nexus clause. Inability to Fulfil, Omissions, Discriminatory Effect and a Disability-​ Specific Approach In the cases set out in the previous subchapter, the causal link requirement was regularly not met, because the state’s inaction was not due to some motive or intent concerning the person’s disability, but due to a lack of resources. In other words, the lack of medical treatment was not due to unwillingness on the part of the state, but due to inability. In many of the cases, the applicants found themselves in a situation which was accepted to amount to ‘being persecuted’, but they could not establish that this situation was sufficiently linked to their Convention ground, their disability. As has already been pointed out at the beginning of Chapter v.C, inability on the part of the state cannot satisfy the nexus requirement, where the state inaction relates to the duty to fulfil rather than the duty to protect. Where a state is incapable of fulfilling certain human rights and a particular group is more vulnerable to this, there is a discriminatory effect. Even though in many of the cases set out above it was accepted that the lack of medical treatment had a discriminatory effect on the applicants, there was no intent. Therefore, the causal link requirement was not met. While the cases set out above related always to medical needs, similar issues arise in cases involving socio-​economic rights other than the right to health. Financial constraints in the country of origin have in practice acted as a bar to asylum claims based on socio-​economic rights.158 This requirement of intent or motive to satisfy the causal link in the refugee definition is not an outlier. It still constitutes the prevailing approach in many jurisdictions (see further on this below in this subchapter on state practice). However, certain jurisdictions have shifted away from an intent or motive requirement and adopted an approach, which acknowledges that a sufficient causal connection exists, when there is a discriminatory effect on the applicant. This approach has been termed ‘the predicament approach’.159 Under the predicament approach, the causal link is established when the Convention ground is closely linked either to the state’s failure to protect or fulfil relevant socio-​economic rights or to the applicant’s predicament of being 4

1 58 Foster (n 98) 139. 159 Hathaway and Foster (n 42) 376 et seq; Foster (n 98) 270 et seq.; Pobjoy (n 66) 160 et seq.

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persecuted.160 Although not usually formulated as such, the predicament approach can be seen as a variant of the bifurcated approach. It shares one prong with the bifurcated approach, namely that the link may exist between the failure of state action and the Convention ground, even in the absence of intent or motive on the part of the state. However, the second prong differs. Under the bifurcated approach, the second prong relates to the persecutory acts of non-​state actors. There needs to be an element of intent involved in the persecution at the hands of non-​state actors, if intent or motive is not involved in the state inaction. Under the predicament approach, however, the second prong does not relate to the acts of persecution but rather to the predicament the applicant finds herself in. It is then sufficient that there is a discriminatory effect on the applicant, without it being necessary that there is a discriminatory motive or intent underlying this predicament. This raises the question whether a predicament approach (or discriminatory effect approach) is warranted in the light of the vclt and the crpd in cases concerning persons with disabilities. In relation to the ordinary meaning of the refugee definition, there is a forceful argument that the wording of the refugee definition indicates that the focus lies on the applicant’s predicament rather than the acts of the persecutor. The Refugee Convention defines refugee status not on the basis of a risk ‘of persecution’ but rather ‘of being persecuted’. Indeed, the grammatical form used in a treaty may form an important basis for the interpretation of a term.161 The New Zealand rsaa has pointed out at an early stage that the ‘employment of the passive voice (“being persecuted”) establishes that the causal connection required is between a Convention ground and the predicament of the refugee claimant’.162 For the language of ‘being persecuted’ ‘draws attention to the fact of exposure to harm, rather than to the act of inflicting harm’.163 Hathaway also points out that the use of the passive voice 160 Hathaway and Foster (n 42) 376–​382; Foster (n 98) 270–​286; Pobjoy (n 66) 160–​164; ‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (n 71). 161 Oliver Dörr, ‘Article 31:  General Rule of Interpretation’ in Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties (Springer Verlag 2012) 542 mn 42, referring to Application of cerd (Georgia v Russian Federation) (Preliminary Objections) icj Reports 2011, 70 (icj) at para. 135, and Chile  –​Price Band System and Safeguard Measures Relating to Certain Agricultural Products (2002) wt/​d s207/​a b/​R (wto Appellate Body) at para. 206. 162 Refugee Appeal No. 72635/​01 (n 20) at para. 168; ac (Russia) (2012) [2012] nzipt 800151 (nzipt) para. 77. 163 Refugee Appeal No. 72635/​01 (n 20) at para. 168; in the official German version the terms used are ‘persecution’ (Verfolgung) rather than the passive voice, which again constitutes an inaccurate translation from the authoritative texts.

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‘signals the need to demonstrate a predicament of risk that calls for surrogate international protection’.164 Once it is accepted that the causal link needs to exist between the Convention ground and an applicant’s predicament, no requirement of intent or motive applies. For the predicament means that a persecutory effect, a discriminatory predicament, will suffice. As has been noted above in relation to context in subchapter B.3, the Preamble’s reference to fundamental rights supports a wide and inclusive interpretation of the refugee definition. However, it is also clear that this general formulation cannot serve as a basis for an ever-​wider interpretation of the refugee definition.165 Particularly in the context of the nexus requirement, which clearly has a limiting function, caution may be necessary. Yet, as regards the relevance of the preambular statement as context, it is important to recognise that the ‘widest possible enjoyment of fundamental rights’ suggests that the standards applicable in international human rights law are pertinent to the threshold for the interpretation of the causal link in Art. 1A(2) Refugee Convention. As the Canadian Supreme Court held in Ward, the non-​discrimination principle forms ‘the basis for the international refugee protection initiative’.166 The causal link requirement is the aspect of the refugee definition, which imports a discriminatory requirement (see on this above subchapter B.3). The prohibition of discrimination is recognised in international human rights law and has been interpreted in detail by international human rights bodies (see further below in this subchapter). The Preamble of the Refugee Convention thus indicates that the approach to the prohibition of discrimination adopted in international human rights law properly informs the refugee definition’s causal link requirement. An intent requirement is not compatible with this (on international human rights standards, see further below). Indeed, as Laws lj observed in Sepet and Bulbul, if the motive or intent of the persecutor were the single reference point for the causal link, it ‘would confine the scope of the Convention in a straitjacket so tight as to mock the words’ in the Refugee Convention’s Preamble.167

164 Hathaway, James C., ‘Refugees and Asylum’, Foundations of International Law (Cambridge University Press 2012) 185. 165 David James Cantor, ‘Defining Refugees: Persecution, Surrogacy and the Human Rights Paradigm’ in Bruce Burson and David James Cantor (eds), Human Rights and the Refugee Definition  –​Comparative Legal Practice and Theory (Brill/​Martinus Nijhoff Publishers 2016) 370 et seq. 166 Canada (Attorney General) v Ward [1993] 2 scr 689 (Supreme Court of Canada). 167 Sepet and Bulbul v Secretary of State for the Home Department (n 61) at para. 92, cited in Symes and Jorro (n 61) 256 mn 4.33.

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Regarding object and purpose of the causation requirement in the refugee definition, it has already been pointed out in subchapter B.3 above, that the underlying rationale is the prohibition of discrimination. This non-​discriminatory goal of the nexus clause also supports the predicament approach. Discrimination exists where there is either discriminatory intent or discriminatory effect. An approach to the causal link, which requires intent or motive as a prerequisite, and cannot be satisfied by discriminatory effect, is not compatible with the principle of non-​discrimination. The predicament approach is thus necessary, if this non-​discriminatory object and purpose of the nexus clause is to be given effect.168 Indeed, the object and purpose of international refugee law as a surrogate protection regime for human rights abuses clearly supports the predicament approach.169 As regards the travaux préparatoires, it has already been noted above in subchapter B.3 that there were no discussions during the drafting process of the Refugee Convention suggesting any intent requirement on the part of the persecutor.170 The question may, however, be whether this may be imputed to the circumstances at the time, particularly the aftermath of World War ii.171 However, it is equally arguable that any requirement of intent is ‘disconsonant with the concerns properly to be imputed, as a matter of interpretation, to the framers of the Convention’.172 Either way, there is no unequivocal authority on what the drafters may have intended. The position remains that there is nothing in the travaux indicating that the drafters considered motive or intent a necessary prerequisite for the nexus clause. While not being the strongest aspect in favour of the predicament approach, the drafting history thus also tends to support it. As regards unhcr practice, which is also pertinent as supplementary means of interpretation, the predicament approach is now firmly established in unhcr guidance. In its Handbook of 1979 (reprinted in 2011), unhcr did not clarify the nature of the causal link yet, merely stating that the risk of being

1 68 Cook (n 22) 242 et seq. 169 ‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (n 71)  at para. 6. 170 Goodwin-​Gill and McAdam (n 16) 101. 171 Hathaway and Foster (n 3) 467 mn 23–​24 argue that the historical intent of the drafters was to address intentional situations, but that the modern day protection needs of refugees would have to be balanced against this; however, in their more recent publication, they no longer refer to this argument, see Hathaway and Foster (n 42) 373–​376. 172 NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] fca 1554 (Federal Court of Australia) at para. 58 (Madgwick J).

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persecuted had to be ‘related to’ a Convention ground.173 In its more recent International Protection Guidelines No. 9 on lgbti asylum claims, unhcr now clarifies that intent or motive of the persecutor is ‘not a prerequisite’ to establishing the causal link and that the ‘focus is on the reasons for the applicant’s feared predicament within the overall context of the case, and how he or she would experience the harm rather than on the mind-​set of the perpetrator’.174 Most recently, in its International Protection Guidelines on armed conflict, unhcr expressly recognises that discriminatory impact or effect also satisfies the nexus clause:175 32. […] A  causal link may also be established by the strategies, tactics or means and methods of warfare of the persecutor, by the inability or unwillingness of the state to provide protection, or by the effect(s) of the situation of armed conflict and violence. The question to guide decision-​ makers is: do the reasons for the person’s feared predicament, within the overall context of the country, relate to a Convention ground? 33. Situations of armed conflict and violence may be rooted in, motivated or driven by, and/​or conducted along lines of race, ethnicity, religion, politics, gender or social group divides, or may impact people based on these factors. As regards state practice, this is clearly not unanimous or consistent on the issue of intent or motive.176 Nevertheless, it is possible to draw on the state practice of certain states only as supplementary means of interpretation, provided that this state practice can assist in establishing the meaning of the causal nexus clause,177 and is based on the underlying principles of refugee protection 173 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 4) at paras. 20–​21. 174 unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 48) at para. 39. 175 unhcr, Guidelines on International Protection No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence under Article 1A(2) of the 1951 Convention and/​ or 1967 Protocol Relating to the Status of Refugees and the Regional Refugee Definitions (un Doc hcr/​g ip/​16/​12, 2 December 2016) at paras. 32–​33 (emphasis added). 176 Hathaway and Foster (n 42) 382 and see the summary of case law of various jurisdictions at 376–​381. 177 Oliver Dörr, ‘Article 32:  Supplementary Means of Interpretation’ in Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties (Springer Verlag 2012) 581 mn 26.

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and human rights.178 The probably most prominent proponent of the predicament approach is New Zealand. It was recognised early that an applicant did not need to establish that she would be ‘singled out or targeted’.179 In 2002, the rsaa adopted the predicament approach:180 The Convention defines refugee status not on the basis of a risk “of persecution” but rather “of being persecuted”. The language draws attention to the fact of exposure to harm, rather than to the act of inflicting harm. The focus is on the reasons for the claimant’s predicament rather than on the mindset of the persecutor … More recently, in ac (Russia), the New Zealand ipt confirmed that the question was whether ‘the predicament is linked to one of the five Convention grounds’ or whether it ‘arises out of’ a Convention ground.181 Similarly, the jurisprudence in Canada recognises that a ‘persecutory effect’ suffices and that there is no requirement for persecutory intent.182 It is ironic and at the same time evident, that it was against this background that the Canadian legislator considered it necessary to exclude the predicament approach in cases involving medical treatment. However, as has been pointed out above, with its interpretation of s. 97(1)(b)(iv) irpa in Covarrubias, the Federal Court of Canada has introduced an even higher threshold than a mere intent requirement for the causal link, requiring evidence of the denial of health care being based on ‘persecutorial grounds or similar bases’,183 in practice thus imposing a persecutory intent test. It is highly questionable that as a matter of principle this limitation of the predicament approach in cases involving medical needs can be justified in light of the vclt rules of interpretation (see below subchapter C.4), but it certainly appears that the decision in Covarrubias has gone even beyond the legislators’ intention. In addition, it is inconsistent with

1 78 Goodwin-​Gill (n 87) 209–​210. 179 Refugee Appeal No 71462/​99 [2000] inlr 311 (New Zealand rsaa) at para. 69. 180 Refugee Appeal No. 72635/​01 (n 20)  at para. 168 (Rodger Haines presiding) (original emphasis). 181 ac (Russia) (n 162) at paras. 77–​78; in the context of an Albino, see ac (Egypt) [2011] nzipt 800015 (New Zealand ipt) at para. 113. 182 Cheung v Canada (Minister of Employment and Immigration) (n 42); Naseem v Canada (Minister of Citizenship and Immigration) (n 42) para. 7; and see further Hathaway and Foster (n 42) 380 fn 99 referring however to conflicting decisions in the context of military conscription, but also noting that the nexus requirement is little discussed in those cases. 183 Covarrubias v Canada (n 117) para. 32.

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a disability-​specific interpretation of the refugee definition as set out in this subchapter. In Australia, the case law appears to be inconsistent in relation to discriminatory effect. Generally, issues of discriminatory effect have arisen with particular acuteness in cases concerning military conscription, as these concern laws of general application with a potentially discriminatory effect on a particular group of people, namely conscientious objectors. In Erduran v. Minister for Immigration and Multicultural Affairs, Gray J of the Federal Court of Australia held that it was ‘well-​established that, even if a law is of general application, its impact on a person who possesses a Convention-​related attribute can result in a real chance of persecution for a Convention reason’, thus focusing on the discriminatory impact.184 In relation to criminal laws of general application, Merkel J of the Federal Court held:185 Before such a conclusion [that a law of general application does not constitute persecution] can be reached in a particular case the circumstances of the individual concerned must be considered. That consideration will usually occur in the context of an inquiry into the nature of the law, the motives behind the law, whether the law is selectively or discriminatorily enforced or impacts differently on different people. Similarly, in the case of nacm the Federal Court of Australia referred to discrimination law as a basis for the ‘for reasons of’ clause and held that ‘[d]‌iscrimination law, both nationally and internationally, treats as uncontroversial the proposition that discrimination may be legally established where either the intent or the effect of conduct is discriminatory’.186 However, as has been pointed out in subchapters B.2 and B.3 above, other decisions still clearly continue to rely on an intent or motive requirement and this continues to be the

184 Erduran v Minister for Immigration & Multicultural Affairs [2002] fca 814 (Federal Court of Australia) at para. 28; see also SZAOG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] fcafc 316 (Federal Court of Australia) at para. 19 (North J dissenting); Applicant N 403 of 2000 v Minister for Immigration & Multicultural Affairs [2000] fca 1088 (Federal Court of Australia) 403; for a detailed discussion see Hathaway and Foster (n 42) 377 fn 87. 185 Wang v Minister for Immigration & Multicultural Affairs [2000] fca 1599 (Federal Court of Australia) at para. 63 (emphasis added). 186 NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (n 172) at para. 59 (Madgwick J).

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predominant approach in Australia.187 There is thus some inconsistency in Australia’s approach. In the UK, the jurisprudence is also inconsistent. However, there is strong authority to the effect that intent or motive are not a prerequisite to establishing causal link.188 In Shah and Islam Lord Hoffmann considered the situation where someone was being persecuted and not protected by the state for lack of resources:189 there are much more difficult cases in which the officers of the State neither act as the agents of discriminatory persecution nor, on the basis of a discriminatory policy, allow individuals to inflict persecution with impunity. In countries in which the power of the State is weak, there may be intermediate cases in which groups of people have power in particular areas to persecute others on a discriminatory basis and the State, on account of lack of resources or political will and without its agents applying any discriminatory policy of their own, is unable or unwilling to protect them. He considered that such cases would have to be decided on a case by case basis, but that the issue did not arise before him as there was evidence of ‘institutionalised discrimination’. Several judgments and guidance in the UK indicate that the test for the ‘for reasons of’ clause is whether there is a discriminatory element, but not expressly requiring discriminatory intent or motive.190 187 Australian Administrative Appeals Tribunal, Migration and Refugee Division, Guide to Refugee Law –​Chapter 5: Refugee Grounds and Nexus (August 2017) 8 stating that ‘it is the motivation of the oppressor that is important’; and see e.g. Ram v Minister for Immigration and Ethnic Affairs (n 40) (Burchett J) requiring motivation on the part of the persecutor; Mehenni v Minister for Immigration and Multicultural Affairs (n 40) at paras. 21–​22 (Lehane J) concerning military conscription; Minister for Immigration v Haji Ibrahim (2000) 204 clr 1 (hca) at paras. 70, 102 (McHugh J). 188 Sepet and Bulbul v Secretary of State for the Home Department (n 59) at para. 92, this was not overturned in the ukhl, as it was not relevant, see Sepet and Bulbul v Secretary of State for the Home Department [2003] 1 wlr 856 (UK House of Lords) at para. 21 (Lord Bingham) and para. 54 (Lord Hoffmann). 189 Islam v SSHD; R v IAT, ex p. Shah (n 60) (Lord Hoffmann). 190 Islam v SSHD; R v IAT, ex p. Shah (n 60) Lord Millett dissenting (but not on this point) stated that if persecution was ‘for reasons of’ it ‘of necessity must be discriminatory’; see also the formulation in the UK Home Office, Asylum Policy Instruction: Assessing Credibility and Refugee Status (6 January 2015) 32 which simply states that it is necessary to show ‘that the State authorities discriminated against them in the protection afforded’ without further specifying whether discrimination requires intent or whether effect would be sufficient; sb (psg, Protection Regulations, Reg 6) Moldova cg [2008] ukait 00002 (UK Asylum and Immigration Tribunal) at paras. 78–​79.

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In the US, there is a general tendency to still require intent (as noted above in subchapters B.2 and B.3). However, the more recent jurisprudence has reflected a reorientation away from a subjective and motivational assessment towards a more objective analysis of nexus.191 As regards EU asylum law, the EU Recast Qualification Directive requires a connection between the Convention ground and either the failure of state protection or the acts of persecution. Acts of persecution are defined in Art. 9(1)(b) as including ‘an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner’ as a violation of non-​derogable rights. Further, in Art. 9(2)(b)-​(d) the Directive refers to various examples of persecutory measures, such as legal or judicial measures, which constitute persecution if they are discriminatory or disproportionate. While the discriminatory element is thus rooted in the definition of persecution (rather than the nexus requirement in Art. 9(3) of the Directive), the fact that measures which are discriminatory may amount to persecution indicates that the Directive also envisages situations of omissions to fulfil, provided these are sufficiently severe to reach the gravity threshold of persecution and are ‘discriminatory’. As it is not specified that the term ‘discriminatory’ is limited to situations of intent and given that generally in EU law the concept of discrimination is interpreted widely so as to include discriminatory effect,192 this formulation ought to cover both discriminatory intent and effect. It appears that the wording of the EU Recast Qualification Directive is thus sufficiently open-​ended in order to allow for the predicament approach, provided the stricter definition of acts of persecution is met. Furthermore, international human rights law may also serve as a supplementary means of interpretation. In particular, when it comes to the interpretation in light of the prohibition on discrimination it is instructive to look to international human rights law.193 The UN Human Rights Committee considers that discrimination should be:194 191 Anker (n 29) 375–​376, referring in particular to Marroquin-​Ochoma v Holder (2009) 574 F.3d 574 (United States Court of Appeals for the Eigth Circuit) 577; Lukwago v Ashcroft (2003) 329 F.3d 157 (United States Court of Appeals for the Third Circuit), and Rodrigues Morales v Attorney-​General (2007) 488 F.3d 884 (United States Court of Appeals for the Eleventh Circuit) 890. 192 See e.g. EU Fundamental Rights Agency, ‘Handbook on European Non-​Discrimination Law’ 29–​31. 193 See also on this Rebecca Dowd, ‘Dissecting Discrimination in Refugee Law: An Analysis of Its Meaning and Its Cumulative Effect’ (2011) 23 ijrl 28, 50. 194 Human Rights Committee, ‘ccpr General Comment No. 18: Non-​Discrimination’ un Doc hri/​g en/​1/​Rev.1 at 26 (1994) (10 November 1989) at para. 7 (emphasis added).

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understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. In a similar vein, the UN Committee on Economic, Social and Cultural Rights has defined discrimination as follows:195 discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights. The Committee further specifies that both direct and indirect discrimination are prohibited under the icescr. Indirect discrimination is defined as ­follows:196 (b) Indirect discrimination refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination. For instance, requiring a birth registration certificate for school enrolment may discriminate against ethnic minorities or non-​ nationals who do not possess, or have been denied, such certificates. In the context of persons with disabilities, the cescr Committee has stressed that both ‘de jure and de facto discrimination against persons with disabilities have a long history and take various forms’.197 More subtle forms of discrimination include ‘segregation and isolation achieved through the imposition of physical and social barriers’.198 These can occur through ‘neglect, ignorance,

195 cescr, ‘General Comment No. 20: Non-​Discrimination in Economic, Social and Cultural Rights (Art. 2, Para. 2, of the International Covenant on Economic, Social and Cultural Rights)’ un Doc E/​C.12/​GC/​20 (2 July 2009) at para. 7 (emphasis added). 196 cescr (n 195) at para. 10 (emphasis added). 197 cescr, ‘General Comment No. 5: Persons with Disabilities’ un Doc E/​1995/​22 (9 December 1994) at para. 15. 198 cescr (n 197) at para. 15.

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prejudice and false assumptions, as well as through exclusion, distinction or separation’ and are ‘particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services’.199 The Committee has further pointed out that anti-​discrimination legislation is but one step in the fight to eradicate discrimination against persons with disabilities. In addition, their needs ‘must be made the basis for the planning of societies’ and ‘all resources must be employed in such a way as to ensure, for every individual, equal opportunity for participation’.200 Similarly, domestic non-​discrimination laws now generally recognise that discrimination does not depend on the existence of an intentional act, but is recognised to exist in situations where the effect of an act, practice, policy or preference is to discriminate against a particular group of persons, whether or not that effect was intended.201 As has been pointed out in subchapter B.3, the same pertains in relation to the prohibition of discrimination in Arts. 2 and 5 crpd. Further, in X v. Tanzania, the crpd Committee recalled that ‘discrimination can result from the discriminatory effect of a rule or measure which does not intend to discriminate, but that disproportionately affects persons with disability’.202 In fact, as has been pointed out in Chapter iii of this book, the prohibition of torture may also apply to such situations. Indeed, in his Interim Report specifically addressing torture and ill-​treatment against persons with disabilities, the then UN Special Rapporteur for Torture or Cruel, Inhuman or Degrading Treatment, Manfred Nowak, stated in relation to a requirement of intent:203 Furthermore, the requirement of intent in article 1 of the Convention against Torture can be effectively implied where a person has been discriminated against on the basis of disability. This is particularly relevant in the context of medical treatment of persons with disabilities, where serious violations and discrimination against persons with disabilities may be masked as “good intentions” on the part of health professionals. Purely

1 99 200 201 202

cescr (n 197) at para. 15. cescr (n 197) at para. 17. Hathaway and Foster (n 3) 469 paras. 30–​31. X v United Republic of Tanzania un Doc crpd/​c /​18/​d /​22/​2014, 31 August 2017 (crpd Committee) at para. 8.3. 203 UN General Assembly, ‘Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Note by the Secretary-​General’ un Doc A/​63/​175, 28 July 2008 at para. 49 (emphasis added).

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negligent conduct lacks the intent required under article 1, and may constitute ill-​treatment if it leads to severe pain and suffering. Thus, even negligent conduct may satisfy the rather strict intent requirement in the definition of torture under Art. 1 cat, if perpetrated in the context of discrimination against persons with disabilities. If the most severe form of persecution, torture, can be satisfied by such a relaxed intent requirement, it is my view that it is the correct approach that this also applies in the context of the causal link in the refugee definition. In international human rights law it is clearly recognised that not only situations involving discriminatory intent, but also those involving discriminatory effect are prohibited under the prohibition of discrimination. 5 Conclusion on Omissions and Discriminatory Effect The cases set out in subchapter C.3 above illustrate the lack of willingness on the part of decision-​makers to engage with asylum cases involving omissions. The fundamental problem with the restrictive approaches set out above, either in statutory law or in practice, is that as a result asylum seekers with disabilities who are being persecuted in the context of socio-​economic rights in their countries of origin are typically denied protection as refugees. On the one hand, the imposition of an intentional requirement for the causal link is in practice virtually impossible to meet in cases involving omissions to fulfil. On the other, a red flag approach to refugee cases involving medical needs results in the risk of disregard of cumulative harms and discrimination, and thus a failure to properly assess the issue of causal link in the round. However, subchapter C.4 has set out how an interpretation of the nexus clause in light of the vclt and in a disability-​specific manner would require an approach to the discriminatory element of the refugee definition which is in line with international human rights law. The various aspects considered in subchapter C.4 above support an interpretation of the causal link which includes situations of discriminatory effect, and not only those where motive or intention can be demonstrated. The predicament approach does more justice to the language, context and object and purpose of the Refugee Convention, as well as to the reality of persons with disabilities.204 The focus is then on the reason why the applicant finds herself in the predicament that she is in.205 If discriminatory laws, policies or practices, that apply to everyone but have a

2 04 Hathaway and Foster (n 42) 378–​379. 205 Foster (n 98) 270.

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discriminatory effect on persons with disabilities, lead to a person with disabilities being persecuted, this is covered by the refugee definition. Contrarily, an approach which requires some sort of intent or motive is overly restrictive and lets persons who are being persecuted in an indirect way fall through the net. In many medical asylum claims, this causal link test in line with the predicament approach would be met. However, the floodgates concern remains, namely that such cases would have immense financial implications for countries of asylum. As the Federal Court of Canada stressed, there is no ‘freestanding right to health care for all of the people of the world who happen to be subject to a removal order in Canada’.206 However, adopting the somewhat more generous predicament approach would not mean that every medical asylum claim would automatically succeed. Rather, the focus of the analysis would shift to the question whether the lack of medical treatment constitutes persecution (see further on this Chapter iii of this book). Thus, it would still be necessary to show that the predicament is one of being persecuted and is in violation of the duty of progressive realisation. A second concern is whether an assessment of the underlying reasons for the lack of health care ought to be the task of refugee decision-​makers. A fear of human rights imperialism appears to be behind this. For instance, the Federal Court in Covarrubias was anxious to stress:207 To interpret the exclusion as the appellants suggest would oblige a prra officer to engage in an unseemly analysis of another state’s medical system in relation to its fiscal capacity and current political priorities. It would effectively require a finding that another country’s public policy decision not to provide a certain level of health care is inadequate by Canadian standards. As the Board stated in the decision under review in Travers [at paragraph 16], “it is not for the panel to judge the health care delivery system in the context of Canada or to attach blame for its shortcomings when the contributing forces are many and complex.” The problem with this reasoning is that it erroneously takes the view that refugee law is concerned with condemning other countries’ human rights violations. However, as has been stressed by scholars and judges alike, the purpose of the international refugee law regime is not to punish or prosecute states,

2 06 Covarrubias v Canada (n 117) at para. 36. 207 Covarrubias v Canada (n 117) para. 35.

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but to provide ‘surrogate protection’.208 Its ‘sole objective is to identify those needing and deserving international protection’.209 This protective rather than punitive aim speaks in favour of a generous, rather than restrictive, interpretation of the definition of who is a refugee under Art. 1A(2) Refugee Convention, and in particular in favour of the predicament approach.210 Furthermore, if the international protection of refugees is to be aligned with international human rights law, and the causal link requirement is to reflect the discriminatory standards which are now widely understood to apply as a matter of international human rights law, then the predicament approach is to be adopted. In addition, a crpd-​compatible understanding of discrimination also requires that discriminatory effect is included in the nexus requirement in Art. 1A(2) Refugee Convention. In conclusion, the predicament or discriminatory effect approach is required if a disability-​specific interpretation of the refugee definition is to be given effect. D

Mixed Causes

Introduction 1 The third issue which underlies the refusal of many asylum claims of persons with disabilities is whether the applicant’s disability needs to be the sole cause of the predicament of being persecuted or whether there may be several causes of an applicant’s predicament. And if there may be more than one cause, whether the Convention ground, the disability, needs to be the main or central cause, or whether it can only be ‘an effective cause’ or a contributing cause. What if there are limited resources, but these are being distributed discriminatorily, with a discriminatory impact on the human rights of persons with disabilities? Under a mixed causes approach, the Convention ground may be one of several causes leading to the risk of being persecuted, and may simply constitute one of the contributing causes. The cases set out above in Chapter v.C invoking the lack of medical treatment also illustrate this problem in relation to mixed causes. While for instance in Canadian law, a situation of mixed causes can in principle meet the 2 08 Hathaway and Foster (n 42) 378. 209 Deborah Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harvard Human Rights Journal 133, 135. 210 Hathaway and Foster (n 42) 376–​382; Goodwin-​Gill and McAdam (n 16) 100–​102; Cook (n 22) 242; Pobjoy (n 66) 160–​164; Zimmermann and Mahler (n 14) 374.

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causal nexus requirement,211 once financial resource constraints pertain, no other causes are taken into account. As soon as financial resource constraints apply to the country of origin, it appears that decision-​makers again see the red flag and fail to take account of possible mixed causes. The issue of a ‘sole cause test’ does not only arise in the context of medical asylum claims but more generally in the context of socio-​economic asylum claims. As Foster notes decision-​makers ‘continue to display a tendency to focus on non-​Convention (economic) factors as a method of dismissing claims’.212 Decision-​makers tend to ‘reduce a complex predicament … to a simple ‘economic’ explanation’.213 This effectively operates as a ‘sole cause’ test, with decision-​makers leaping at an economic motive as the sole cause of the persecutory treatment. There are many situations where multiple causes may lead to someone’s predicament of being persecuted. Multiple causes can be either multiple independent causes or multiple cumulative causes.214 The following subchapter will examine how a sole or dominant cause test has barred refugee cases of persons with disabilities from succeeding. 2 Mixed Causes in Cases of Persons with Disabilities The different cases set out in subchapter C.3 above serve as a good illustration of how cases involving socio-​economic rights and resource constraints lead to a blocking out of all other reasons which may underlie state inaction concerning socio-​economic rights. For instance, in Canada the effect of s. 97(1)(b)(iv) irpa and the judgment in Covarrubias is to require the Convention ground of a medical condition or disability to be the sole cause, rather than a contributing factor to the lack of medical treatment. Unless the denial of medical care is based solely on persecutorial grounds or similar bases (rather than also inability), the causal link cannot be established.215

211 See e.g. Salibian v Canada (Minister of Employment and Immigration) (1990) 11 Imm lr (2d) 165 (Federal Court of Canada) at paras. 17–​19 and see further below. 212 Foster (n 98) 248. 213 Foster (n 98) 248–​249. 214 Hathaway and Foster (n 3) 471 mn 36. 215 A similar issue arose in the New Zealand ipt case of co (South Africa) [2019] nzipt 801569 (New Zealand ipt) in which the ipt had found that the applicant feared serious harm in the form of violence and abuse at the hands of his sister, but which was refused on the basis that there was ‘no suggestion’ that South Africa’s policies on socio-​economic rights for vulnerable groups fell short because ‘it intended to cause any particular sector of society harm’, at para. 69.

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Yet, it is a well-​established principle both in international refugee law and in Canadian law that the nexus requirement can be satisfied where there are mixed causes.216 For instance, in X (Re) concerning a Zimbabwean man suffering from hiv and fearing discrimination and lack of medical treatment the irb found that the applicant would be a victim of a ‘generalized deterioration of services caused by a complex combination of factors’, including political and economic instability and drought.217 However, according to the irb there was no evidence of a discriminatory lack of resource allocation regarding hiv treatment, even though Zimbabwe is known for the discrimination against persons suffering from hiv.218 The difference this makes can be illustrated by reference to the refugee case of a person with disabilities who did not require any medical treatment. Jeyaseelan v.  Canada concerned a Tamil applicant who suffered from polio and mobility impairments as a result.219 The question in the case was whether the applicant was being persecuted in the then civil war because the war impacted disproportionately and discriminatorily on the applicant due to her disability. The Federal Court came to the conclusion that the irb had failed to properly assess the causal link requirement in the case. While there were mixed causes of her predicament, civil war being one of them, she was at a disproportionate risk of death or injury as a result of her disability. The Federal Court summarised the case as follows:220 In particular, counsel for the applicant at the Board hearing had asked the applicant about a new bombing campaign against Tiger positions which had been reported by the bbc, and the applicant indicated that the people would try to get to a bunker or go into the temple but because of her disability she could not run and would have to immediately lie on the ground when the bombing started. The Board, therefore, did have credible evidence that should have been looked at in connection with the changed country conditions to determine whether the applicant had

216 Salibian v Canada (Minister of Employment and Immigration) (n 211) at paras. 17–​19 and for further case references see below subchapter D.3; Foster (n 98) 247–​253; Hathaway and Foster (n 42) 382–​383. 217 X (Re) (Zimbabwean man with hiv) (n 125). 218 Médecins Sans Frontières (n 125). 219 Jeyaseelan v Canada (Minister of Citizenship and Immigration) 2002 fct 356 (Federal Court of Canada). 220 Jeyaseelan v Canada (Minister of Citizenship and Immigration) (n 219) at para. 7.

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an objective fear. […] There should have been an assessment of whether she was at a high level of risk in light of her disability. This is a reviewable error and the matter must be returned to a differently constituted board for redetermination. The Federal Court thus clearly applied a mixed causes approach, accepting that the disability was a contributing cause of the applicant’s risk of being persecuted. How the mixed causes approach would apply in the context of an asylum claim involving medical needs can be illustrated with the following example from the Irish High Court. The case of E.M.S. v. The Minister for Justice Equality and Law Reform221 concerned a South African hiv-​positive applicant who had claimed that a lower level of healthcare was provided to hiv sufferers than to other ill persons in South Africa constituting a discriminatory denial of health care. The High Court set out the test for causation in such a case as follows: While it is not material whether the level of health care in the country of origin is lower than in the country of asylum, it is significant that a lower level of health care is provided to a particular group of persons. If there is a degree of discrimination against a particular social group in the lack of health care provision and ‘the treatment of that group from a health perspective may be regarded as discriminatory to a significant degree’ so as to give rise to a claim for persecution.222 The Court continued that it was ‘at least arguable that some of this material [concerning the provision of health care to persons with hiv in South Africa] could give rise to a conclusion that by virtue of a view taken by the authorities within South Africa the level of treatment being given to persons suffering from aids within that jurisdiction falls below the level which could reasonably be expected having regard to the seriousness of the problem of aids within South Africa and the resources available within that country’. Clarke J of the High Court held:223 I am satisfied that there is, at the least, an arguable case that the materials go further and show a possible basis for arguing that the level of health care is such that it is sufficient to establish the following matters:

221 EMS v The Minister for Justice Equality and Law Reform [2004] iehc 398 (High Court of Ireland). 222 EMS v The Minister for Justice Equality and Law Reform (n 221) per Clarke J. 223 EMS v The Minister for Justice Equality and Law Reform (n 221).

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(a) that aids sufferers are, having regard to the level of resources available within South Africa, treated in a discriminatory manner; and (b) that the above is at least in part due to a policy view in relation to aids taken by the South African authorities. It was thus sufficient that the government may have taken a policy view which had contributed to the lower level of health care for hiv-​/​a ids-​sufferers.224 While it could be argued that this is different from many of the cases set out above, because South Africa is one of the wealthier states on the African continent, there is always a need to examine discriminatory resource allocation, even in states subject to more serious financial constraints. The next subchapter will now consider whether a mixed causes approach is warranted under the vclt and in light of the crpd. 3 Mixed Causes and a Disability-​Specific Approach As has been pointed out above, mixed causes often arise in cases involving a denial of socio-​economic rights and thus pose a particular problem for the asylum claims of persons with disabilities. A sole or predominant cause test ‘appears to impose a stricter nexus requirement on an applicant from a poor country’.225 It is also often difficult to separate various contributing factors to a person’s predicament, ‘since Convention and non-​Convention factors are often ‘inextricably linked’’.226 This subchapter explores whether an interpretation of the causal nexus clause which takes account of mixed causes and does not require the Convention ground to be the sole or dominant cause is justified in line with the vclt rules and, in a disability-​specific manner, in line with the crpd. As has been pointed out in subchapter B.3 above, the ordinary meaning of the formulation ‘for reasons of’ implies a less direct causal link than formulations such as ‘because of’, ‘on account of’ or ‘but for’. Indeed, ‘for reasons of’ provides for the possibility that several reasons can simultaneously lead to one result. On the other hand, formulations such as ‘because of’, ‘on account of’ or ‘but for’ imply a direct causal link between the cause and the result. This means that with the ‘for reasons of’ formulation the link between each reason and the result is normally less direct and immediate, than if there was just a single or one main operative cause of the result. Several reasons may simultaneously 224 For unexplained reasons, Clarke J continued to refer to aids-​rather than hiv-​sufferers, even though according to the summary of the claim at the beginning of the judgment, the claim was formulated as that of an hiv-​sufferer. 225 Foster (n 98) 261. 226 Foster (n 98) 255.

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contribute to the result without one single reason being the sole or main operative reason. As an outlier to the scholars cited above in subchapter B.3, Zimmermann and Mahler argue that the terms ‘for reasons of’ indicate that the respective acts of persecution ‘must have been triggered’ by the fact that the person belongs to one of the protected groups under the Convention grounds.227 The use of the word ‘trigger’ suggests that the Convention ground is at least the dominant, if not the sole, cause of the persecution. Whether such an interpretation is warranted in the light of the remaining vclt rules will be further considered below. In any event, it is questionable how thoroughly Zimmermann and Mahler have thought about the issue of the ordinary meaning of ‘for reasons of’, given that they use the formulation ‘for reasons of’ interchangeably with ‘because of’ and rely in different passages on a restrictive interpretation of the causal link without expressly acknowledging or justifying their approach of using the two formulations interchangeably.228 However, as already pointed out above, the consensus amongst scholars is that a close examination of the ordinary meaning of the ‘for reasons of’ clause indicates a more generous causal requirement, with a sole cause approach being too restrictive.229 Concerning the context of the refugee definition, it has already been pointed out in subchapters B.3 and C.4 above, that the Preamble indicates that the nexus clause ought to be read in line with international discrimination law (see further on this below). Similarly, the object and purpose of the causal link supports such a reading as has been pointed out above. In addition, the protective aim supports a reading of the ‘for reasons of’ clause, which allows for mixed causes. As the Australian High Court stressed in Chen Shi Hai ‘many acts lend themselves to ready assignment to different “reasons”. Human conduct is rarely, if ever, uni-​ dimensional’.230 Indeed, persecution, such as ‘incarceration, persecution and torture frequently results from mixed or multiple motives’.231 Therefore, if a sole or dominant cause test is applied, many applicants will not be recognised 2 27 Zimmermann and Mahler (n 14) 372 mn 325. 228 Zimmermann and Mahler (n 14) 374 mn 330, 374–​375 mn 336. 229 Goodwin-​Gill and McAdam (n 16) 101; Hathaway and Foster (n 42) 471; Pobjoy (n 66) 160 et seq.; see also ‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (n 71). 230 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (n 35)  (at para. 69 Kirby J). 231 Ukashu Nuru v Gonzales (2005) No. 03-​71391 (United States Court of Appeals for the Ninth Circuit) at para. 15 (Reinhardt J).

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as refugees under the Refugee Convention. A sole or dominant cause approach excludes what should be considered valid asylum claims. A persecutor who is motivated ‘by equal parts greed, anger, and racism’ is nevertheless someone for whom the racist motive was a central cause.232 The protective aim of the refugee law regime in providing surrogate protection is thus better realised, where mixed causes are admissible. The travaux préparatoires do not appear to shed any further light on this question (see the discussion of this above in subchapters B.3 and C.4). Further, as regards supplementary means, in unhcr practice, it was recognised already in the unhcr Handbook that the ‘Convention ground must be a relevant contributing factor, though it need not be shown to be the sole, or dominant, cause’.233 More recently, this was confirmed in unhcr’s International Protection Guidelines No. 9:234 As with other types of refugee claims, the well-​founded fear of persecution must be “for reasons of” one or more of the five grounds contained in the refugee definition in Article 1A(2) of the 1951 Convention. The Convention ground should be a contributing factor to the well-​founded fear of persecution, though it need not be the sole, or even dominant, cause. State practice on this issue is not entirely consistent, with the prominent exception being Australia. However, several jurisdictions have considered the question closely and adopted a ‘contributing cause’ approach, not requiring the Convention ground to be the sole, main or dominant cause of an applicant’s predicament of being persecuted. For instance, in line with the Michigan Guidelines on Nexus235 the rsaa has observed that:236 2 32 Hathaway and Foster (n 3) 474 mn 43. 233 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (n 4) at para. 20. 234 unhcr, Guidelines on International Protection No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 48)  at para. 38 (emphasis added). 235 ‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (n 71)  at para. 13 states that the only proper conclusion to be drawn from the language, object and purpose of the Refugee Convention is that the Convention ground need not be shown to be the sole, or even the dominant, cause of the risk of being persecuted. It need only be a contributing factor to the risk of being persecuted’. 236 Refugee Appeal No. 72635/​01 (n 20) at para. 177; Refugee Appeal No 76044 [2008] nzar 719 (New Zealand rsaa) at para. 68.

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the only proper conclusion to be drawn from the language, object and purpose of the Refugee Convention is that the Convention ground need not be shown to be the sole, or even a dominant, cause of the risk of being persecuted. It need only be a contributing factor to the risk of being persecuted. If, however, the Convention ground is remote to the point of irrelevance, refugee status should not be recognised. The language employed by the courts when considering several causes for persecution indicates that the Convention ground may only be a contributing cause. For instance, language such as ‘in part’ or ‘a factor’ implies that the Convention ground need not be a main, primary or significant cause, but it suffices if it is a contributing cause.237 This was for instance applied in a case concerning an Egyptian albino man who also suffered from a visual impairment and was considered disabled.238 The New Zealand ipt held that ‘[h]‌is status as a disabled person in Egypt has further contributed to his predicament as it underscores the failure by the Egyptian state to comply with the positive obligations it owed to him under affirmative action legislation’.239 Similarly, the United Kingdom jurisprudence accepts that the Convention ground only has to be a contributing cause, provided it is effective or operative. As Lord Bingham stated in K and Fornah:240 The ground on which the claimant relies need not be the only or even the primary reason for the apprehended persecution. It is enough that the ground relied on is an effective reason. […] What matters is the real reason. In deciding whether the causal link is established, a simple “but for” test of causation is inappropriate: the Convention calls for a more sophisticated approach, appropriate to the context and taking account of all the facts and circumstances relevant to the particular case. Provided that the Convention ground is ‘one of the motives’ and that the applicant’s fear ‘relates to persecution on that ground’ this is sufficient to establish the causal link.241 2 37 238 239 240

Foster (n 41) 285. ac (Egypt) (n 181). ac (Egypt) (n 181) at paras. 112–​113. K and Fornah v Secretary of State for the Home Department (n 93)  at para. 17 (Lord Bingham). 241 Suarez v SSHD [2002] ewca Civ 722 (UK Court of Appeal) at para. 29 (Potter LJ); R v Secretary of the State for the Home Department, ex p Sivakumar [2003] ukhl 14 (Lord Rodger); see also Hathaway and Foster (n 3) 462–​263 mn 10.

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In Canada, the courts have also held that mixed causes can satisfy the causal link requirement.242 The Canadian Federal Court has stated that ‘it is enough for the existence of political motivation that one of the motives was political’.243 If ‘at least one of the motives can be related to a Convention ground, nexus may be established’.244 In EU asylum law the wording of Art. 9(3) rqd is sufficiently open-​ended to permit that the Convention ground may be just one out of many causes, being described as ‘a connection’.245 In the US, there is also no requirement that the Convention ground be the sole or main cause of the risk of being persecuted. The legislative provision reads that the Convention ground has to be ‘a central reason’, which was changed from ‘the’ to ‘a’ thereby codifying a mixed motives approach.246 However, provided the Convention ground is a central reason, there is no enquiry into the weight that is attached to it beyond it being central: ‘whether one of those central reasons is more or less important than another is irrelevant’.247 It simply needs to be ‘of some significance’,248 playing ‘more than a minor role in motivating a persecutor’.249 The dominant cause approach has been expressly rejected as the risk of being persecuted ‘need not be solely, or even predominantly, on account of’ the Convention ground.250 However, while the previously listed jurisdictions all accept mixed causes (or in the case of the US, still requiring motive or intent, mixed ‘motives’) as a basis for meeting the causal link requirement in the refugee definition, an 2 42 Foster (n 98) 247–​253; Hathaway and Foster (n 42) 382–​383. 243 Zhu v Canada (1994) 1994 acwsj lexis 68679 (Federal Court of Canada). 244 Katwaru v Canada (Minister of Citizenship and Immigration) 2007 fc 612 (Federal Court of Canada) at para. 12; see also Minister for Citizenship and Immigration v B344 2013 fc 447 (Federal Court of Appeal) at para. 45; Minister for Citizenship and Immigration v B377 2013 fc 320 (Federal Court of Appeal) at para. 23; Salibian v Canada (Minister of Employment and Immigration) (n 211)  at paras. 17–​19; Nara v Canada (Minister for Citizenship and Immigration) 2012 fc 364 (Federal Court of Canada) at para. 38; Jeyaseelan v Canada (Minister of Citizenship and Immigration) (n 219) at para. 8. 245 In Germany for instance, a mixed causes approach is accepted, see Hathaway and Foster (n 3) 382–​383 with further references; see also ‘The Causal Nexus in International Refugee Law (‘the Michigan Guidelines’)’ (n 71) at para. 13; in Switzerland, mixed causes are also accepted Caroni and others (n 110) 258. 246 Anker (n 29) 372. 247 Ndayshimiye v Attorney General (2009) 557 F 3d 124 (United States Court of Appeals for the Third Circuit) 129–​130, cited in Anker (n 29) 373–​374. 248 Anker (n 29) 374. 249 Shaikh v Holder (2012) 702 F.3d 897 (United States Court of Appeals for the Seventh Circuit) 902. 250 Marroquin-​Ochoma v. Holder (n 191) 577.

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important exception to this practice is Australia, where a clear legislative limitation on mixed causes pertains. The Australian Parliament changed the approach to causation in the Migration Legislation Amendment Act (No 6) 2001. This was introduced in response to Australia’s Federal Court’s decision in mima v. Sarrazola holding that ‘it is sufficient if one of the reasons for which persecution is feared is a Convention ground’.251 Australian law now stipulates that the causal link is only met were the Convention reason is ‘essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution’ (s. 5J(4)(a) of the Migration Act and formerly s. 91R(1) (a) of the Migration Act). The explanatory material to s.91R(1)(a) Migration Act stated that this makes it more difficult to make asylum claims based on more than one motive:252 Over recent years the interpretation of the definition of a refugee by various courts and tribunals has expanded the interpretation of the definition so as to require protection to be provided in circumstances that are clearly outside those originally intended. Persecution for mixed reasons will not satisfy the relevant test unless a Convention reason or reasons constitutes at least the essential and significant motivation for the persecution feared. Ironically, as Hathaway and Foster point out, Australian domestic anti-​discrimination law recognizes that a discriminatory act may be done for two or more reasons, with one of them being a prohibited ground (namely race, colour, descent or national or ethnic origin, s. 18 of the Australian Racial Discrimination Act).253 However, as regards the refugee definition’s causal nexus, a stricter test now applies. The law on causal nexus is fairly complex, with decision-​makers applying the statutory test strictly in certain cases, and not so strictly –​more as an essential reason test –​in others.254 Insofar as the test is applied strictly, it 251 Sarrazola v Minister for Immigration & Multicultural Affairs (1999) 107 F.C.R. 184 (Federal Court of Australia) 196 (Heerey J). 252 The Information and Research Services, Migration Legislation Amendment Bill (No. 6) 2001, Bills Digest No. 55 2001-​02 at 1. Migration Legislation Amendment Bill (No. 6) 2001, Revised Explanatory Memorandum, “Outline” at para. 3, see also Hathaway and Foster (n 3)  473 mn 40; Susan Kneebone, ‘The Australian Story:  Asylum Seekers Outside the Law’ in Susan Kneebone (ed), Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press 2009) 224–​225. 253 Hathaway and Foster (n 3) 475 mn 48. 254 Kneebone (n 252)  224–​226; for a case in which a mixed causes approach was applied, see RRT Case No 1400685 (Coptic Egyptian woman with cognitive, physical and psychiatric

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is highly questionable that such interpretation is compatible with the refugee definition. For instance, it has led to the refusal of a case which is closely analogous to Lord Hoffmann’s oft-​cited example of the Jewish shopkeeper getting attacked by the Aryan gang (cited above in subchapter C.2),255 concerning a wealthy Hindu businessman who was persecuted by extortion both because of his wealth and his religion.256 Given the conflicting decisions on the interpretation of the statutory limitation, however, the precise impact of this limitation remains unclear.257 It is therefore of limited guidance as a supplementary means of interpretation for the question of mixed causes for causal nexus. As regards international human rights law, it is well-​recognized that the principle of non-​discrimination also applies to multiple causes of discrimination, so that the prohibited ground may be one amongst several causes. In particular, the crpd Committee has made it clear that multiple causes for discrimination will still be in breach of the right to non-​discrimination in Art. 5 crpd, provided that one cause is the person’s disability; both intersectional discrimination and multiple discrimination are prohibited:258 Discrimination can be based on a single characteristic, such as disability or gender, or on multiple and/​or Intersecting characteristics. “Intersectional discrimination” occurs when a person with a disability or associated to disability suffers discrimination of any form on the basis of disability, combined with, colour, sex, language, religion, ethnic, gender or other status. Intersectional discrimination can appear as direct or indirect discrimination, denial of reasonable accommodation or harassment. For example, while the denial of access to general health-​related information due to inaccessible format affects all persons on the basis of disability, the denial to a blind woman of access to family planning services restricts her rights based on the intersection of her gender and disability. In many cases, it is difficult to separate these grounds. States parties must address

255 256 2 57 258

disabilities) [2015] rrta 265 (rrt (Australia)) at para. 37 in which the tribunal held that she would be persecuted ‘both because she is not Muslim and as a means of preventing her from complaining about [her persecutor’s] failure to serve the sentence ordered but never served’. Islam v SSHD; R v IAT, ex p. Shah (n 60) (Lord Hoffmann), cited in Symes and Jorro (n 61) 255 mn 4.32; as well as Hathaway and Foster (n 42) 373–​374. SZAIZ v Minister for Immigration [2004] fmca 22 (Raphael J) (Federal Magistrates Court of Australia) (Raphael J); also discussed in Kneebone (n 252) 225. Kneebone (n 252) 226. crpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ (n 80) at para. 19.

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multiple and intersectional discrimination against persons with disabilities. “Multiple discrimination” according to the Committee is a situation where a person can experience discrimination on two or several grounds, in the sense that discrimination is compounded or aggravated. Intersectional discrimination refers to a situation where several grounds operate and interact with each other at the same time in such a way that they are inseparable and thereby expose relevant individuals to unique types of disadvantage and discrimination. Finally, the principle of effectiveness in treaty interpretation also tends to support a mixed causes approach. A sole or dominant cause test requires applicants to demonstrate the relative weight of his persecutor’s motivations, a requirement which is difficult to meet.259 Such quantification of different factors playing on a persecutor’s mind may not even be considered possible and involve an active exercise of second-​guessing what might have gone on in a persecutor’s mind. Hathaway and Foster rightly question the ethical or principled basis for limiting the protection of the Refugee Convention based on the ‘weight’ that is to be attributed to one factor on the persecutor’s mind as opposed to another, all in the hypothetical situation of a future eventuation of the risk.260 In addition, it creates a real risk of inconsistent refugee status decision-​making in relation to similarly situated asylum claims.261 Conclusion on Mixed Causes 4 The examples in subchapter D.2 above have sought to illustrate the importance that mixed causes assume in the context of asylum claims of persons with disabilities. Particularly when socio-​economic rights are also at stake, financial reasons are often considered the main reason for the risk of being persecuted. The person’s disability may be a contributing factor, which often does not get taken into account in the light of the more dominant financial considerations. However, as has been set out in subchapter D.3 above, a disability-​ specific approach to the refugee definition requires that mixed causes can meet the causal link requirement and that the Convention ground need not be the sole or dominant cause of the risk. It is necessary to consider in the

2 59 Hathaway and Foster (n 3) 473 mn 42. 260 Hathaway and Foster (n 3) 474 mn 44. 261 Hathaway and Foster (n 3) 474 mn 44.

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context of the causal link, whether the person’s disability is one of the factor’s contributing to the applicant’s predicament. If it is, the nexus criterion is ­satisfied. But the question whether the state is unable to provide medical treatment to an applicant is not irrelevant, it becomes pertinent under the analysis of ‘being persecuted’. Only a denial of socio-​economic rights which is either discriminatory or retrogressive or otherwise fails to comply with the duty of progressive implementation under the icescr and the crpd amounts to a violation of the human right to health care. The benefit of this shift in analysis is that it provides a more principled and adequate framework in which to analyse an asylum claim. E

Conclusion on Causal Link

This chapter has sought to highlight those aspects of the causal link requirement, which cause the most fundamental concern for persons with disabilities. In particular, an approach to the causal link which requires either persecutory intent or even just discriminatory intent, regularly results in cases not being recognised for lack of nexus. However, if a disability-​specific approach to the refugee definition is adopted, it is necessary to abolish any intent or motive requirement. The causal nexus clause must be seen against the background of international discrimination norms. Its aim was to single out those groups of persons who are the most marginalised in society. International human rights law, and particularly the crpd, recognises today that specific groups may be marginalised both by way of direct action and discrimination and by way of indirect action and discriminatory effect. If the nexus clause is read in light of this international non-​discrimination standard, persecutory effect and mixed causes must be considered as sufficient bases to meet the causal link requirement in the refugee definition. Further, the above analysis has illustrated the reluctance on the part of decision-​makers to deal with asylum cases involving medical treatment. Yet, if the refugee law regime is to finally catch up with the developments in international human rights law regarding the rights of persons with disabilities, and to embrace the paradigm shift away from the medical model that the crpd has sought to bring about, then medical treatment may no longer be seen as a red flag. This approach focusing solely on the need for medical treatment, whenever this is raised as one of the issues, is reflective of the medical model viewing persons with disabilities as essentially persons with medical needs requiring treatment. Rather, such cases regularly involve cumulative harms, with

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societal discrimination, marginalisation and ostracism, and sometimes violence, being just as important factors. A human rights based approach to the causal link, which is disability-​specific, reflects the reality of such excluding societal barriers and takes account of all of the human rights of persons with disabilities, including the right to non-​discrimination.

chapter vi

Convention Ground –​‘Particular Social Group’ Each of [the Convention] grounds Because persons with disabilities share “a history of persecution, individuals describes persecution aimed at with disabilities have common an immutable characteristic: a immutable characteristics”. characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity arlene kanter and kristin or conscience that it ought not be dadey, ‘The Right to Asylum for required to be changed. People with Disabilities’2 us bia in Matter of Re Acosta1 A

Introduction

The Refugee Convention sets out five grounds, on which a refugee may be persecuted. Asylum claims based on disability have generally been assessed on the basis of the Convention ground of ‘membership of a particular social group’. Given that persons with disabilities are a group of persons with very different biographies and personal characteristics, it is perhaps surprising that this has proved to be the least significant hurdle for asylum claims of persons with disabilities. None of the cases studied here were refused solely on the basis that the membership of a particular social group was not established. In those cases, in which the asylum claims were refused on the basis of a lack of a Convention ground, other elements of the refugee definition were always additionally not met, such as the causal link, the failure of state protection or the absence of serious harm.3 In fact, as will be demonstrated below in subchapter B.2, decision-​makers have accepted

1 Matter of Acosta (1985) I. & N. Dec 211 (US Board of Immigration Appeals). 2 Arlene Kanter and Kristin Dadey, ‘The Right to Asylum for People with Disabilities’ (2000) 73 Temple Law Review 1117, 1153. 3 See eg Subermani Gounder v Minister for Immigration & Multicultural Affairs [1998] fca 1080 (Federal Court of Australia) (additional finding of lack of causal link); X (Re) (South Korean with mental health issues) (2014) TB1-​19714; TB1-​19741; TB1-​19747; TB1-​19748 (irb (Canada))

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004427303_007

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in numerous cases that persons with disabilities were members of a ‘particular social group’. However, certain disabilities and situations have caused difficulty in the recognition of a particular social group and these will be discussed in more detail in Chapter vi.B. One relates to the recognition of persons with intellectual, psychosocial or cognitive disabilities as a particular social group, as their disability may fluctuate and change with medication. A second issue relates to persons with disabilities who are subject to a law of general application and are thus, on one view, not being perceived as a cognisable social group different from other persons. A third aspect, which arises in these cases relates to persons with hiv and their membership of a particular social group. Fourth, imputed disability and disability by association, or family members of persons with disabilities, is considered here. Chapter vi.C will elaborate a disability-​specific interpretation of the requirement of membership of a particular social group against the background of the vclt rules of interpretation and the crpd. In Chapter vi.D, I conclude what a disability-​specific interpretation requires. B

Persons with Disabilities and Membership of a ‘Particular Social Group’

Introduction 1 A particular social group is a group of persons who share a common characteristic, which is innate, immutable or fundamental to identity, or which is perceived as a social group in society and which is not solely defined by their risk of being persecuted.4 In certain jurisdictions, these two elements have been considered to be required cumulatively. This has had ramifications for the recognition of persons with disabilities as members of a particular social group, as will be set out below. Two approaches exist in the case law and scholarly writings. One is described as the ‘personal characteristics’ approach, originally expounded by the United States Board of Immigration Appeals in Re Acosta.5 The Board explained that (additional finding of no failure of state protection); Raffington v ins (2003) F.3d 720 (US Court of Appeals for the Eighth Circuit) finding that there was no pattern of persecution. 4 See for instance unhcr, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ Within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (un Doc hcr/​g ip/​02/​02, 7 May 2002) at para. 11. 5 Matter of Acosta (n 1).

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each of the Convention grounds, for instance religion or race, refers to ‘an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed’.6 Thus, the ground of membership of a particular social group has to be interpreted by reference to the same class or genus of the other terms listed together with it.7 The ‘personal characteristics’ approach has influenced the approach to particular social group in many asylum states and has been described as ‘the dominant approach’ across the developed world.8 The second approach has been referred to as the ‘social perception’ approach. This requires that the group can also be identified as a cognisable social group in the applicant’s country of origin.9 The jurisdictions studied in this book follow these two different approaches to the definition of particular social group, as will be further seen in the following subchapter. 2 ‘Particular Social Group’ in Cases with Disabilities In most of the decisions that have been considered as part of this book, the question whether the applicant was a member of a particular social group was not in issue, meaning that it was rarely contested on appeal. Indeed, Hathaway and Foster note that this ‘is not a heavily litigated issue’.10 Decision-​ makers accepted that either disability in general, or the applicant’s specific type of disability, met the requirements for membership of a particular social group. More specifically, it has been found or accepted that the applicants were members of a particular social group as persons with disabilities,11 persons with intellectual or psychosocial disabilities,12 persons with 6 7 8 9 10 11

12

Matter of Acosta (n 1) 233, cited in James C Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, Cambridge University Press 2014) 426. Hathaway and Foster (n 6) 426. Hathaway and Foster (n 6) 426. See for instance Applicant A v Minister for Immigration and Ethnic Affairs High Court of Australia [1997] hca 4 (Kirby J). Hathaway and Foster (n 6) 451. Ampong v Canada (Citizenship and Immigration) 2010 fc 35 (Federal Court of Canada), at para. 43; X (Re) (uasc from Poland with disability) (2001) TA0-​05472 (irb (Canada)); X (Re) (Burkinabe with disability) (2002) MA1-​08719 (irb (Canada)); Louis v Canada 2012 fc 1055 (Federal Court of Canada); X (Re) (Nigerian child with physical and mental disabilities) (2015) TB4-​12468; TB4-​12210 (irb (Canada)); Reference 1728413 (Zimbabwean with disability) aata Migration and Refugee Division (Australia) [2018] aata 4665, 18 October 2018. Liaqat v Canada [2005] fc 893 (Federal Court of Canada) at para. 29; X (Re) (South Korean with mental health issues) (n 3); X (Re) (Korean single mother suffering from schizophrenia) (2008) VA7-​02101 (irb (Canada)) at para. 20; X (Re) (Lebanese single woman with mental illness) [2000] irb (Canada) A99-​01121; X (Re) (Ethiopian woman with mental health

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hiv,13 children of persons with intellectual disabilities,14 parents of children with disabilities,15 or spouses of persons with hiv.16 In South African asylum law, disability has even been listed in statute law as one instance of a particular social group in the South African Refugee Act 1998, s.1(xxi), which states:17 “social group” includes, among others, a group of persons of particular gender, sexual orientation, disability, class or caste. As regards the requirement of an innate or immutable characteristic, it has generally been accepted that while not all disabilities are innate or inherent, they are usually immutable or at least the impairment is.18 As regards physical disabilities, for instance persons with visual impairments, persons with hearing impairments and deaf/​mute persons have been found to each share an immutable characteristic.19 In relation to physical disabilities in

13

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issues) [2007] irb (Canada) TA5-​11242; Olga Denissenko v Christine Haskett and Minister for Immigration and Ethnic Affairs [1996] fca 1513 (Federal Court of Australia), at para. 30; RRT Case No 1219395 (Ghanaian with mental health problems) [2013] rrta 633 (rrt (Australia)) at para. 20; Matter of Ricardo de Santiago-​Carrillo 6 June 2000 (US Board of Immigration Appeals) 6–​7; Tchoukhrova et al v Gonzalez No. 03-​71129, 21 April 2005 (US Court of Appeals for the Ninth Circuit) at para. 2; at para. 10 IPJ (Re) No. A99-​01121, [2000] crdd No. 141, 11 September 2000 (Refugee Protection Division (Canada)). Omar Antonio Chalita Gonzalez v The Minister of Citizenship and Immigration 2011 fc 1059 (Federal Court of Canada) (where this was not raised as an issue); TNL (Re) T95-​ 07647, [1997] crdd No. 251 (irb (Canada)); Deri v Canada (Citizenship and Immigration) 2015 fc 1042 (Federal Court of Canada) at para. 8; Kuthyar v Minister for Immigration & Multicultural Affairs [2000] fca 110 (Federal Court of Australia) at para. 74; Matter of _​_​(ij 20 December 2000), reported in 78 Interpreter Releases 233, 15 January 2001 (US); Matter of _​_​ US A71-​498–​940, (ij 31 October 1995), reported in 73 Interpreter Releases 901, 8 July 1996; Okado v Attorney General [2005] US Court of Appeals for the Third Circuit 04–​3698; GPE (Re) No. U96-​02717, [1997] crdd No. 215, 16 September 1997 (Refugee Protection Division (Canada)) at para. 12. X (Re) (Korean single mother suffering from schizophrenia) (n 12) at para. 47; X v Canada (ethnic Russian single mother from Kyrgyzstan with mental health problems [2001] irb (Canada) T98-​03164. Tchoukhrova et al v Gonzalez (n 12) at para. 2; Sadiq v Canada (Minister of Citizenship and Immigration) [2020] fc 267 (Federal Court of Canada). SZUFQ & Anor v Minister for Immigration & Anor (2015) [2015] fcca 3406 (Federal Circuit Court of Australia) at paras. 84–​85. South African Refugee Act 1998  . Tchoukhrova et al v Gonzalez (n 12) at para. 2. BOG (Re) No. VAO-​03441, [2001] crdd No. 121, 16 July 2001 (Refugee Protection Division (Canada)) (visual impairment); H (gy) (Re) Nos. T94-​05654 and T94-​05655, [1995] crdd No. 70 4 based on the ‘profound congenital deafness and inability to verbally communicate’,

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general, it has been held that persons who are physically disabled share an immutable characteristic, as the condition is permanent and unchangeable.20 In certain cases, courts have been more willing to accept disability as a particular social group, where there were cumulative bases including more common categories. While there must be a causal connection to at least one Convention ground, it is no obstacle for refugee recognition that there is a causal link between the persecution and several bases for the persecution.21 Indeed, several Convention grounds may overlap.22 For instance, in Tchoukhrova, it was accepted that children with disabilities are members of a particular social group.23 The US Court of Appeals for the Ninth Circuit held both in relation to a personal characteristic and a social perception approach:24 Disabled children in Russia share not only common characteristics but a common experience as well. Their mistreatment by the state and society in general is well-​documented before us, by explicit discussion in both the State Department Report and a Human Rights Watch Report devoted to the issue. Russian children who are disabled experience permanent and stigmatizing labeling, lifetime institutional internaty, denial of education and medical care, and constant, serious, and often violent harassment. All of this evidence supports our conclusion that in Russia disabled children constitute a particular social group.

both cited in Michelle Foster, International Refugee Law and Socio-​Economic Rights  –​ Refuge from Deprivation (Cambridge University Press 2009)  319; SZHCU v Minister for Immigration & Anor [2006] fmca 1146 (Federal Magistrates Court of Australia) (concerning a Mongolian deaf-​mute person who was found to be a ‘member of a cognisable social group in Mongolia’, but whose claim was refused for lack of serious harm). 20 X (Re) (uasc from Poland with disability) (n 11). 21 James C Hathaway and Michelle Foster, ‘The Causal Connection (“Nexus”) to a Convention Ground  –​Discussion Paper No. 3  –​Advanced Refugee Law Workshop International Association of Refugee Law Judges –​Auckland, New Zealand, October 2002’ 15 International Journal of Refugee Law 461, 462. 22 Francesco Maiani, ‘La Définition de Réfugié Entre Genève, Bruxelles et Berne  –​ Différences, Tensions, Ressemblances’, Schweizer Asylrecht, EU-​Standards und internationales Flüchtlingsrecht: Eine Vergleichsstudie (Stämpfli Verlag ag 2009) 41; on the shared duty of fact-​finding between the applicant and the fact-​finder see also Hathaway and Foster (n 21) 426 mn 6. 23 Tchoukhrova et al v Gonzalez (n 12) at para. 3. 24 Tchoukhrova et al v Gonzalez (n 12) at para. 3.

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Cumulative bases have also been applied in the context of gender and disability or domestic violence victims and disability.25 Further, in the context of hiv, the cumulative bases of sexual identity and hiv have been found to result in membership of a particular social group. For instance, in the case of opk (Re) the Canadian irb based itself on the fact that sexual identity could found a particular social group and concluded from this that ‘Singapore homosexuals who have aids’ constituted a particular social group.26 Further, in Subramaniam, the Federal Court of Australia confirmed the tribunal’s finding that the applicant was a member of a particular social group ‘on the basis of his disability or caste, or these factors combined’.27 Furthermore, in a few of the decisions studied here, membership of a particular social group was recognised not on the basis of the disability, but based on some other personal characteristic, such as being a child or a person with albinism.28 Disability has also been imputed in some decisions. This was for instance the case in the decision of Pitcherskaia concerning a Russian lesbian who was considered to be mentally ill by the Russian authorities because of her sexual identity.29 In relation to intellectual, psychosocial or cognitive disabilities (in the case law often summarised as ‘mental health issues’), it has also generally been accepted that they can found a particular social group. For instance, it has been accepted that children with autism share an immutable characteristic.30 25

See eg X (Re) (Ethiopian woman with mental health issues) (n 12); X (Re) (Brazilian woman with disabilities and domestic violence victim) (2014) TB4-​08626 (irb (Canada)) at para. 16 finding her to be a member of the particular social group of ‘abused women with physical disabilities’; Tchoukhrova et al v Gonzalez (n 12) (concerning a child with disabilities); X (Re) (Lebanese single woman with mental illness) (n 12) accepting ‘the grounds of her membership in the particular social group mentally handicapped persons and, as well, in association with her membership in the particular social group women’. 26 opk (Re) No. U95-​04575, [1996] crdd No. 88, 24 May 1996 (Refugee Protection Division (Canada)) at para. 31. 27 Salem Subramaniam & Ors v Minister for Immigration & Multicultural Affairs [1998] fca 483 (Federal Court of Australia). 28 Exceptions are the decision re Czech Roma boy with disability in segregated school based on being a child, and af (Ghana) [2015] nzipt 800796 (New Zealand ipt) based on person with albinism. 29 lla Konstantinova Pitcherskaia v Immigration and Naturalization Service (1997) 95–​70887 (United States Court of Appeals for the Ninth Circuit). 30 ‘ins Grants Asylum to Autistic Child Persecuted Due To Disability’ (2001) 78 Interpreter Releases 604; X (Re) (Nigerian child with physical and mental disabilities) (n 11) the applicant boy was granted asylum on the basis of autism at first instance, while this was overturned on appeal as the medical evidence indicated that he was not autistic, the correctness of the legal evaluation of this was not challenged.

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However, persons with intellectual, psychosocial or cognitive disabilities have sometimes not been recognised as members of a particular social group, particularly in Australia and the US. They have encountered the following two problems. The first issue which has arisen in the case law relates to the fact that the social group of ‘persons with mental health issues’ is considered to be a group which is ‘too large and diverse to qualify’ as a particular social group.31 However, the precision with which claimants can be identified as members of a ‘particular social group’ has been problematic. There is no reason why membership of a particular social group needs to be defined widely as persons with mental health issues. Instead, it may include for instance only persons suffering from schizophrenia or from cognitive disabilities as the case may be. In particular, unrepresented applicants frequently fail to articulate their claims, let alone their ‘particular social group’. This is even more problematic, where a person suffers from intellectual, psychosocial or cognitive disabilities and is therefore even less likely to be able to self-​identify as a particular social group. However, decision-​makers share the burden of proof.32 The second issue concerns the mutability of particular psychosocial disabilities. While they may fluctuate in severity with treatment and other circumstances, it is outside the person’s control to change them.33 The membership of a particular social group of a person with psychosocial disabilities was however rejected by the US Board of Immigration Appeals in Kholyavskiy.34 The Board had held that persons with mental health problems were not a particular social group because their illness is not ‘immutable’ as ‘it can be treated with medication such that by his own actions he will be able to avoid persecution’.35 However, on appeal, the US Court of Appeals for the Seventh Circuit reversed this finding. It found that based on the medical evidence in the case,

31

32 33 34 35

Raffington v I.N.S. (n 3) 723 it was also found that the fact ‘that Jamaica devotes limited resources to treating those who are mentally ill [did] not establish a pattern of persecution on account of this disability’; see also Disha v Gonzales (2006) 207 Fed. Appx. 694 (US Court of Appeals for the Seventh Circuit) in which it was considered ‘doubtful’ that persons with mental health issues in Albania constituted a particular social group. Udara Jayasinghe and Sasha Bagley, ‘Protecting Victims of Human Trafficking Within a “Non-​Refoulement” Framework: Is Complementary Protection an Effective Alternative in Canada and Australia?’ (2011) 23 International Journal of Refugee Law 489. Liaqat v. Canada (n 12) at para. 14; X (Re) (South Korean with mental health issues) (n 3); X (Re) (Korean single mother suffering from schizophrenia) (n 12). Kholyavskiy v Mukasey No. 07-​1020, 28 August 2008 (US Court of Appeals for the Seventh Circuit). Kholyavskiy v. Mukasey (n 34).

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there was an immutable characteristic. The medical evidence gave the applicant a ‘prognosis for remaining comfortable but disabled’ if he remained on the medication.36 Therefore, he was a considered to be a member of a particular social group.37 Both the personal characteristic and the social perception approach were satisfied in the case of a Ghanaian man suffering from mental illness as constituting a particular social group by the Australian rrt. The Tribunal held that societal structures clearly indicated that persons suffering from mental illness were distinct from society at large:38 In this case, I am satisfied that persons suffering mental illness in Ghana have a characteristic common to all members –​their mental illness. This characteristic is an illness and not the shared fear of persecution. Finally the possession of that characteristic distinguishes the group from society at large. This is reflected in the fact that there are particular hospitals and prayer groups for people who fall into this group, as well as a stigma attached to them. A further issue for persons with disabilities has arisen in the context of laws of a general application, which do not distinguish between persons with disabilities and non-​disabled persons. This was considered, for instance, in the case of a law permitting the forced institutionalisation of non-​disabled and disabled persons in X (Re) concerning a South Korean woman suffering from borderline personality disorder, depression and bipolar disorder (this case has already been mentioned in Chapters iii and iv of this book). The Canadian irb held that the applicant was not a member of a particular social group, because there was no discrimination.39 This finding was based on the fact that the law concerning forced institutionalisation was a law of general application and was therefore not ‘persecutory in relation to a Convention ground’.40 A similar analysis was undertaken in the Australian Federal Court decision in the context of a general lack of adequate health care in Gounder v Minister for Immigration concerning a Fijian man suffering from renal failure.41 The Court held that the applicant was seeking to ‘create a particular social group 36 37 38 39 40 41

Kholyavskiy v. Mukasey (n 34). Kholyavskiy v. Mukasey (n 34). RRT Case No. 1219395 (Ghanaian with mental health problems) (n 12) at para. 20. X (Re) (South Korean with mental health issues) (n 3). X (Re) (South Korean with mental health issues) (n 3) at para. 57 and see also paras. 55–​56. Subermani Gounder v Minister for Immigration & Multicultural Affairs (n 3).

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out of the discriminatory effect [of the lack of medical treatment] on such persons, not the discriminatory intention, of a government policy which is neutral in terms of definition’.42 Both of these decisions display a lack of appreciation for state obligations regarding the prohibition of discrimination as well as the predicament of persons with disabilities. By merely relying on the persecutory harm, they wholly fail to appreciate the everyday impact that the disabilities had on the applicants, resulting in their likely exclusion from society or inability to enjoy and fully participate in life (see Art. 1 crpd), which in itself should have been considered sufficient to set them apart from other persons as a cognisable social group. A further issue which has arisen in the case law is whether persons with hiv constitute a particular social group. A particularly controversial decision is the case of X (Re) concerning a man with hiv from Swaziland who feared discrimination and lack of medical treatment.43 The Canadian irb held that the applicant was not a member of a particular social group. They found that because he had contracted hiv later in his life, it could not be described as ‘an innate or unchangeable characteristic’ and he also did not belong to a group whose members voluntarily associated or who shared historical association.44 This analysis is clearly ill-​conceived, which is illustrated by the following example. In the earlier Canadian decision of Re T.N.L. concerning an applicant who was hiv positive from Poland, the opposite conclusion had been reached.45 In this case, the irb held that hiv clearly amounted to an immutable characteristic:46 While having a medical disability is not necessarily an ‘innate’ characteristic, once a condition such as being hiv-​Positive has developed, [it] is not something within the power of an individual to change. It thus becomes an ‘unchangeable characteristic’ for the purposes of refugee determination. In line with this analysis, persons with hiv have now been recognised in several cases as constituting members of a particular social group.47 42 43 44 45 46 47

Subermani Gounder v Minister for Immigration & Multicultural Affairs (n 3). X (Re) (gay man with hiv from Swaziland) (2009) TA6-​16825 (irb (Canada)). X (Re) (gay man with hiv from Swaziland) (n 43) at para. 13. T.N.L. (Re) (n 13). T.N.L. (Re) (n 13) at para. 17. For instance see Kuthyar v Minister for Immigration & Multicultural Affairs (n 13) at para. 74 where the Federal Court of Australia considered that ‘it could be reasonably found that

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A group of persons where it has been unclear, whether they qualify as disabled, are persons with albinism.48 In the case law, they have either been subsumed as persons with disabilities or as a particular social group (persons with albinism). In ac (Egypt) concerning an Egyptian with albinism, the ipt held that albinism is an immutable characteristic:49 It is his physical appearance as an albino which has in substantial measure driven the discrimination he has encountered in society. Albinism is an immutable characteristic which is beyond the power of the appellant to change. It is an internal defining characteristic which serves to define the group independently of the persecution. Albinos are properly considered a particular social group in Egypt. As regards the question whether albinism also constituted a disability, the ipt held:50 Although albinism itself does not appear to be considered a disability per se, its physical effects are treated as such in Egypt. His status as a disabled people who are hiv-​positive might constitute a particular social group’; Omar Antonio Chalita Gonzalez v. The Minister of Citizenship and Immigration (n 13) (where this was not raised as an issue); Deri v. Canada (Citizenship and Immigration) (n 13) at para. 8; Matter of _​_​ (n 13); Matter of _​_​(n 13); Okado v. Attorney General (n 13); Manani v Filip (2009) 552 F.3d 894, 903 (US Court of Appeals for the Eighth Circuit); gpe (Re) (n 13) at para. 12; Reference V95/​03256 9 October 1995 (rrt (Australia)); Reference N94/​04178 10 June 1994 (rrt (Australia)); Reference V5/​03396 29 November 1995 (rrt (Australia)); Reference V94/​ 02084 23 February 1996 (rrt (Australia)); Reference N98/​21471 21 September 1998 (rrt (Australia)); Reference N03/​45504 1 July 2003 (rrt (Australia)); Simioni v Holder (2012) 476 Fed. Appx. 920 (US Court of Appeals for the Second Circuit); Jean-​Pierre v Attorney General (2006) 192 Fed. Appx. 92, 95 (US Court of Appeals for the Third Circuit); see also Human Rights Watch, ‘Returned to Risk: Deportation of HIV –​Positive Migrants’ 10 . 48 See Makatengkeng v Gonzalez (US Court of Appeals for the Eigth Circuit) where the court was ‘troubled by the ij’s finding that a person with albinism is a member of a particular social group’’’, cited in Deborah Anker, Law of Asylum in the United States (Thomson Reuters 2015) 526 fn 30; for the argument that they may also fall within the particular social group of persons with an imputed disability see Stephanie A  Motz, ‘The Persecution of Disabled Persons and the Duty of Reasonable Accommodation: An Analysis under International Refugee Law, the EU Recast Qualification Directive and the ECHR’ in Bauloz, Céline and others (eds), Seeking Asylum in the European Union: Critical Perspectives on the Second Phase of the Common European Asylum System (Brill/​Martinus Nijhoff Publishers 2015) 165 fn 118; and Hathaway and Foster (n 6) 452. 49 ac (Egypt) [2011] nzipt 800015 (New Zealand ipt) at para. 111. 50 ac (Egypt) (n 49) at para. 112.

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person in Egypt has further contributed to his predicament as it underscores the failure by the Egyptian state to comply with the positive obligations it owed to him under affirmative action legislation. The failure of the local officials to employ any disabled person for 12 years implies they are strongly conditioned by prevailing societal attitudes towards persons with disability. It may be that as a disabled person he forms part of a wider social group in Egypt, but having regard to the finding that his predicament is being contributed to by his membership of a narrower social group, namely albinos, it is unnecessary to reach any final conclusion on this point. This analysis was further developed in the subsequent ipt decision of af (Ghana) concerning a Ghanaian man with albinism who had been discriminated against and ostracised throughout his life.51 The ipt considered whether albinism amounted to a disability and held that ‘the visual impairment associated with the condition’ meant that albinism had been categorised also as a disability.52 However, the ipt eventually confined the particular social group to ‘persons with albinism’:53 The Tribunal finds that the appellant’s predicament is contributed to by his membership of a particular social group in Ghana, namely persons with albinism. The second principle issue is therefore answered in the affirmative. It will be further considered below, in subchapter vi.B.3 how the crpd Committee has assessed the question of albinism under the crpd. A further question which arises in cases of persons with disabilities is whether family members of persons with disabilities constitute a particular social group.54 This was considered in Tchoukhrova in which the US Circuit Court for the Seventh Circuit held that they do:55 We further hold that Russian parents who provide care for their disabled children are properly included in the particular social group. Parents who 51 52 53 54 55

af (Ghana) (n 28). af (Ghana) (n 28) at para. 51. af (Ghana) (n 28) at para. 114. Family members are generally recognised as constituting a particular social group see Hathaway and Foster (n 6) 445–​449. Tchoukhrova et al v Gonzalez (n 12) at para. 4.

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resist the harms inflicted by the Russian government upon their children often express a political opinion while doing so, and thus may be entitled to asylum on that basis as well. But, in providing care for their disabled children, parents are doing something more fundamental than engaging in politics: They are acting out of love and devotion for their children. However, the matter was remitted on further appeal on this point as the first instance had not had an opportunity to deal with this question, the point of appeal only relating to the question whether the harms to the parents and the child could be considered cumulatively, but the family was eventually granted asylum.56 In addition, children of persons with intellectual or psychosocial disabilities have also been recognised as constituting a particular social group. In X v. Canada the irb held that a ‘family including two minor children led by a single parent female with serious mental health problems’ constituted a particular social group.57 A particular issue of imputed or perceived membership of a particular social group in the context of family members concerns spouses of persons with hiv. This raises the question whether the spouse of a person with hiv may constitute a member of the particular social group of persons with imputed hiv status. This was raised in the case of szufq and Anor v. mia.58 Given that the husband’s claim did not rise to the required level of persecution, it was found that the wife’s claim also did not attain the level of serious harm.59 However, the Federal Court did not exclude the possibility that the spouse could have claimed ‘to fear harm, as a woman married to an hiv sufferer, who claimed to fear discrimination and stigma on return to Fiji’.60 This summary of case law has demonstrated that persons with disabilities are generally recognised as constituting a particular social group. Issues have however arisen in the context of the ‘social perception’ approach. The compatibility of the ‘social perception’ approach, as currently interpreted by the Australian courts in particular and some courts in the US, with a disability-​specific understanding of the refugee definition will be considered in the following

56 57 58 59 60

Anker (n 48) 525 fn 25. X v Canada (ethnic Russian single mother from Kyrgyzstan with mental health problems (n 14); see also X (Re) (Korean single mother suffering from schizophrenia) (n 12) at para. 47. szufq & Anor v Minister for Immigration & Anor (n 16) at paras. 84–​85. szufq & Anor v Minister for Immigration & Anor (n 16) at para. 89. szufq & Anor v Minister for Immigration & Anor (n 16) at para. 87; see also the case of YHI (Re), No T95-​07066 [1996] crdd No. 65, 16 August 1996 (rrt (Australia)) concerning the particular social group of family member of a Romanian with aids.

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subchapter. In particular, I will examine whether the ‘personal characteristics’ or the ‘social perception’ approach or a combination of the two most appropriately conform to a disability-​specific interpretation of ‘particular social group’. 3 ‘Particular Social Group’ and a Disability-​Specific Approach As regards the ordinary meaning of the formulation, particularly the Australian courts have placed emphasis on the literal meaning of the term ‘membership of a particular social group’ when examining the refugee definition. In the case of Applicant A, Brennan cj relied on the ordinary meaning in developing a social perception approach stating that the ordinary meaning of ‘particular group’ meant ‘a group identifiable by any characteristic common to the members of the group’ and ‘social group’ meant ‘a group the members of which possess some characteristic which distinguishes them from society at large’.61 He continued:62 The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. This literal approach has formed the basis of the social perception approach. However, it is necessary to also consider the remaining rules of the vclt in order to evaluate which approach best conforms to the true meaning of the term. As part of the context it is necessary to take into account the entire formulation of the refugee definition and the ‘for reasons of’ clause. As Hathaway and Foster have pointed out, the membership of a particular social group ground may not be transformed into a ‘catch-​all’ category, as it ‘would effectively render the nexus clause superfluous’.63

61 62 63

Applicant A v Minister for Immigration and Ethnic Affairs (n 9) (Brennan cj). Applicant A v Minister for Immigration and Ethnic Affairs (n 9) (Brennan cj). Hathaway and Foster (n 6) 424, referring to Applicant A v Minister for Immigration and Ethnic Affairs (n 9) 260 (Kirby J) where it was pointed out that it would have been easier for the drafters to delete the for reasons of clause altogether; see also R v Secretary of State for the Home Department, ex p Adan [1999] 3 wlr 1274 (UK Court of Appeal); Islam v SSHD; R v IAT, ex p Shah [1999] 2 ac 629 (UK House of Lords) 643 (Lord Steyn) both also cited by Hathaway and Foster.

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As regards the object and purpose, the Canadian Supreme Court stressed in Ward that ‘the meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the defence of human rights and antidiscrimination that form the basis for the international refugee protection initiative’.64 The UK House of Lords further explained in Shah that the genus of the ejusdem generis approach to ‘particular social group’ ‘is to be found in the fact that the other Convention reasons are all grounds on which a person may be discriminated against by society’.65 Indeed, the drafters’ inclusion of the Convention ground of membership of a particular social group confirms the evolutionary character of the refugee definition, which must adapt to changing times and circumstances, with its interpretation not being a ‘static one’ or ‘fixed by historical appreciation’.66 The purpose of including this Convention ground was ‘to expand the other heads of persecution which, of their nature, are more specific’.67 The object and purpose of the ‘particular social group’ thus support a wider and more flexible interpretation of the particular social group category. However, the primary rules of interpretation do not provide for a clear or unambiguous approach to this category, thus necessitating recourse to the supplementary means of interpretation. As regards the travaux préparatoires, Goodwin-​Gill and McAdam have pointed out that there was no substantive debate about the meaning of the concept during the drafting of the Convention. The concept was simply proposed by the Swedish delegate and accepted.68 However, they note that the lack of debate indicates that contemporary examples at the time of drafting, such as landowners, capitalist class members, the middle classes and their families may have been on the mind of the drafters.69

64 65 66 67

68 69

Canada (Attorney General) v Ward [1993] 2 scr 689 (Supreme Court of Canada) 739, cited in Hathaway and Foster (n 6) 427. Islam v SSHD; R v IAT, ex p. Shah (n 63) 656. Applicant A v Minister for Immigration and Ethnic Affairs (n 9) (Kirby J). Applicant A  v Minister for Immigration and Ethnic Affairs (n 9)  (Kirby J), cited in Jane McAdam, ‘Interpretation of the 1951 Convention’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011) 102 mn 81. Guy Goodwin-​Gill and Jane McAdam, The Refugee in International Law (3rd edn, Oxford University Press 2007). Goodwin-​Gill and McAdam (n 68) 74.

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The practice of unhcr has been the focus of considerable debate. unhcr proposed the following definition in its International Protection Guidelines No. 2 on Membership of a Particular Social Group:70 a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights. While this has been welcomed as a ‘coherent, general approach’,71 the dual nature of the definition, embracing both the personal characteristics and the social perception approaches,72 has caused some confusion. In fact, these two alternative approaches have resulted in a cumulative test under the Qualification Directive and its Recast in EU law (see further below).73 unhcr did not however intend to introduce the two approaches as a cumulative requirement, but as alternatives, which are intended to complement each other:74 A holistic approach would in effect accept the validity of both of the approaches described above. This would best ensure protection for those legitimately in need of it. It would include those who cannot change their innate or historic characteristics, and those who should not be required to renounce them, as well as those in the first category, that is, those members of groups which are perceived by the persecutor to be in opposition, or to pose a threat. Where the persecutor acts or is likely to act against the member of the group on that perception, the potential victim may be protected on this ground on account of the perception of

70 71 72

73 74

unhcr, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ Within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 4) at para. 11. Goodwin-​Gill and McAdam (n 68) 84–​85. unhcr, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ Within the Context of Article 1A(2) of the 1951 Convention and/​or Its 1967 Protocol Relating to the Status of Refugees (n 4) at para. 10 stating that the two approaches ought to be reconciled. Hathaway and Foster (n 6) 429. unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ April 2001 at para. 28  .

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the persecutor, which imputes motives or characteristics to the victim as a member of the group. unhcr has clarified its position in several amicus curiae briefs in the meantime, stating unequivocally that the two approaches are alternative, not cumulative bases for recognition of membership of a particular social group.75 It has further stressed that the ‘personal characteristics’ approach is to be preferred.76 As regards disability, unhcr has twice recommended the inclusion of disability in the context of membership of a particular social group as an express basis.77 In addition, unhcr has observed that it is ‘now generally agreed that imputed or perceived grounds’ can form the basis of a refugee claim.78 As regards state practice, the personal characteristics or ejusdem generis approach has been described as the dominant approach to membership in a particular social group in common law jurisdictions,79 and in civil law jurisdictions.80 This includes Canada and New Zealand, where a ‘personal characteristics’ or ejusdem generis approach is being applied.81 However, the most important divergent state practice is that of Australia, which embraces the social perception approach. The Australian approach requires that the person can demonstrate that they are a member of a cognisable social group. The legal test for this social perception approach has 75 76 77

78

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Jason Pobjoy, The Child in International Refugee Law (Cambridge University Press 2017) 174–​175. Pobjoy (n 75) 174–​175. Clara Straimer, ‘Vulnerable or Invisible? Asylum Seekers with Disabilities in Europe’ (University of Oxford 2010) UNHCR, New Issues in Refugee Research, Research Paper No 194 541 ; referring to unhcr, unhcr Response to the Green Paper for the Future of the Common European Asylum System (September 2007); and unhcr, unhcr Annotated Comments on the ec Council Directive 2004/​38/​EC (28 January 2004) 23. unhcr, ‘The International Protection of Refugees:  Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ (n 74)  at para. 25; see for instance Art. 10(2) of the Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/​9, 20 December 2011. Foster (n 19) 295. Andreas Zimmermann and Claudia Mahler, ‘Article 1 A, Para. 2’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (Oxford University Press 2011) at paras. 395–​420. Canada (Attorney General) v Ward (n 64); AC (Russia) (2012) [2012] nzipt 800151 (nzipt) at para. 78.

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been summarised by the High Court of Australia in the case of Applicant S as ­follows:82 First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. The Federal Court of Australia has stressed in the case of Ram v Minister for Immigration and Ethnic Affairs that ‘[t]‌here must be a common unifying element binding the members together before there is a social group of that kind’.83 As pointed out above in subchapter B.2, this approach has led to persons with disabilities sometimes being excluded from membership of a particular social group, where their disability was not recognised to be a sufficiently unifying element. A further proponent of the social perception test is the US, although practice between the different circuit courts is inconsistent on this point.84 After the US Board of Immigration Appeals had decided Re Acosta founding the ‘personal characteristics’ approach, the US also began to rely on the unhcr International Protection Guidelines in order to introduce a cumulative second test.85 Courts generally now rely on a social visibility or social perception test, which considers the extent to which members of a society perceive those with the characteristic in question as members of a particular social group.86 However, certain Board of Immigration Appeals decisions have now expressly rejected the more restrictive social perception or visibility test.87 As has already been mentioned, a further instance of this cumulative approach to membership of a particular social group can be found in EU asylum law in the EU Recast Qualification Directive. Its Art. 10(1)(d) provides (emphasis added): 82 83 84 85 86 87

Minister for Immigration and Multicultural Affairs v Applicant S [2002] fcafc 244 (High Court of Australia) at para. 36 (Gleeson CJ, Gummow and Kirby JJ), cited in Hathaway and Foster (n 6) 428. Ram v Minister for Immigration and Ethnic Affairs [1995] fca 1333 (Federal Court of Australia) (Burchett J). Hathaway and Foster (n 6) 431 fn 456–​458 noting that the 3rd and the 7th Circuit courts do not adopt a social perception test. Anker (n 48) 443. Anker (n 48) 443–​445. Anker (n 48) 449–​450.

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a group shall be considered to form a particular social group where in particular: – members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and – that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. However, approximately 10 EU member states currently accept that either one of the two grounds is sufficient.88 In addition, the highest court of the UK has also expressed doubt that the criteria can be applied cumulatively and in violation of the standard applicable in international refugee law.89 Indeed, in UK practice, the cumulative social perception requirement does not normally lead to a more restrictive approach to particular social group. The UK Asylum Policy Instruction refers to the cumulative requirement for membership of a particular social group and states that once an immutable or innate characteristic is established, the social perception test should normally not result in a denial of a particular social group:90 In practice, the two features will generally go together. Groups with a common immutable characteristic which is externally obvious (for example being male/​female) will usually have a distinct identity within their home societies. Even if an immutable characteristic shared by a group is not externally obvious (for example, being gay), the group will quickly

88

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European Legal Network on Asylum, The Impact of the EU Qualification Directive on International Protection (elena 2008)  20  listing these as Austria, Greece, Hungary, Ireland, Luxemburg, the Netherlands, Norway, Portugal, Romania, Sweden. However, the UK has in its case law also accepted this, see K and Fornah v Secretary of State for the Home Department [2007] 1 ac 412 (hl) (House of Lords) at para. 16 (Lord Bingham). See the obiter dicta of Lord Bingham in K and Fornah v Secretary of State for the Home Department (n 88) at para. 16 observing that ‘If, however, this article were interpreted as meaning that a social group should only be recognised as a particular social group for purposes of the Convention if it satisfies the criteria in both of sub-​paragraphs (i) and (ii), then in my opinion it propounds a test more stringent than is warranted by international authority’. UK Home Office, Asylum Policy Instruction:  Assessing Credibility and Refugee Status (6 January 2015) 31.

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become recognised as distinct within society if, for example, there is a recognisable gay community or the authorities take steps to ban activity. The question which arises in light of this divergent state practice is which approach best conforms to a vclt-​compliant reading of the requirement of ‘membership of a particular social group’. The principle of effectiveness has been advanced in order to criticise the social perception approach as overly broad with no meaningful delimitation of a group, introducing a lack of clarity and uncertainty.91 In addition, it has been argued that the cumulative test in the Qualification Directive is incompatible with the inclusive object and purpose of the particular social group category. ecre has raised that:92 Maintaining the cumulative test for the definition of a particular social group is liable to lead to common categories of particular social groups potentially being excluded from the Qualification Regulation; young men facing military recruitment could be an example. ecre therefore urges for the definition of particular social group to be adapted accordingly. However, before reaching a conclusion on this matter it is necessary to have regard to international human rights standards. The grounds of discrimination, which are recognised in international human rights law, serve as an important reference point for the definition of ‘particular social group’.93 As Hathaway and Foster observe, the ‘personal characteristics’ approach to the interpretation of particular social group grounds it in the principled framework of non-​discrimination of universal applicability.94 Carlier further stresses that in international human rights law, the grounds of discrimination have been extended to cover further grounds beyond those expressly recognised in 1951 in the Refugee Convention.95 He expressly refers to Art. 21 of the EU Charter of Fundamental Rights and Freedoms which includes disability as one of the prohibited grounds. Carlier is of the view that each of the prohibited grounds

91 92 93 94 95

Hathaway and Foster (n 6) 432–​435. European Council on Refugees and Exiles, ECRE Comments on the Commission Proposal for a Qualification Regulation COM(2016) 466 (ecre 2016)  8  . Jean-​Yves Carlier, ‘Et Genève Sera … La Définition Du Réfugié : Bilan et Perspectives’, La Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés 50 Ans Après : Bilan et Perspectives (Bruylant 2001) 83. Hathaway and Foster (n 6) 427. Carlier (n 93) 82–​83.

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listed in Art. 21 of the Charter could easily be interpreted into the definition of ‘particular social group’ in Art. 1A(2) Refugee Convention. Disability as a prohibited ground of discrimination has now gained the most official recognition with the conclusion of the crpd, which is founded on the prohibition of discrimination against persons with disabilities. According to Art. 1 crpd: Persons with disabilities include those who have long-​term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. This has been described as a ‘non-​definition’ or ‘open description’ of disabilities.96 It was a deliberate choice of the drafters to include this description in Art. 1 crpd as part of the Purpose of the crpd rather than with the list of definitions in Art. 2 crpd. For the drafters considered that defining disability could potentially open up avenues for a legalistic analysis of medical conditions97 and thus undermine ‘the Convention’s commitment to the social model of disability’.98 In addition, the word ‘include’ was used in order to avoid limiting the crpd’s reach in the light of an evolving view of disability.99 Finally, the enshrinement of the disability description in the article on the crpd’s purpose means that ‘States cannot enter permissible reservations to the normative contents of this article’.100 In the crpd, disability is recognised as ‘an evolving concept’ (see preambular recital (e) to the crpd) and a dynamic approach must be taken towards 96

Marianne Schulze, Understanding The UN Convention On The Rights Of Persons With Disabilities (Handicap International 2010) 22, also cited in Valentina Della Fina, ‘Article 1 [Purpose]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities:  A Commentary (Springer 2017) 97. 97 Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse Journal of International Law and Commerce 563, 594; see also Motz (n 48) 145 fn 17. 98 Arlene S Kanter, ‘Disability Rights: Convention on the Rights of Persons with Disabilities’ in David P Forsythe (ed), Encyclopedia of Human Rights, vol 2 (Oxford University Press 2009) 47. 99 Kanter (n 98) 47. 100 Michael Ashley Stein and Janet E Lord, ‘Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 25.

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it.101 The crpd Committee has clarified that the human rights-​based model of disability requires the diversity of persons with disabilities to be taken into account, with particular emphasis on the interaction between individuals with impairments and attitudinal and environmental barriers.102 In the context of international refugee law, however, it has been noted that it would be the impairment, not the disability, which would properly be characterised as ‘immutable’.103 One of the questions which has been raised in Chapter vi.B.2 above, is whether persons with hiv qualify as persons with disabilities. While persons with hiv or aids are not per se disabled, they ‘may develop impairments as the disease progresses, and may be considered to have a disability when social, economic, political or other barriers hinder their full and effective participation in society on an equal basis with others’.104 In certain instances, hiv may constitute a disability. However, in many instances it will in any event fall within the head of imputed disability, as it is a ‘perceived characteristic’ of disability for which persons are discriminated against.105 In addition, ‘persons with hiv’ may constitute their own particular social group not only on the basis of a personal characteristics, but also a social perception approach. For in many countries, persons with hiv still face widespread stigma and discrimination.106 A further issue discussed above is the question whether persons with albinism fall within the definition of disability. The crpd Committee has addressed

1 01 Della Fina (n 96) 97. 102 SC v Brazil un Doc crpd/​c /​12/​d /​10/​2013, 28 October 2014 (crpd Committee) at para. 6.3; Y v United Republic of Tanzania un Doc crpd/​c /​20/​d /​23/​2014, 31 August 2018 (crpd Committee) at para. 7.5. 103 Mary Crock, Christine Ernst and Ron McCallum, ‘Where Disability and Displacement Intersect: Asylum Seekers and Refugees with Disabilities’ (2012) 24 International Journal of Refugee Law 735, 44. 104 UN Office of the High Commissioner for Human Rights, World Health Organization and UN AIDS, ‘Disability and hiv Policy Brief’ (April 2009) 1 . 105 Rachele Cera, ‘Article 2 [Definitions]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer 2017) 112. 106 Children are for instance discriminated against by their own families and their environment, see Médecins Sans Frontières, ‘Fighting HIV and Stigma in Epworth, Zimbabwe’ (20 November 2014)  ; see also Melissa Neuman, Carla Makhlouf Obermeyer and The MATCH Study Group, ‘Experiences of Stigma, Discrimination, Care and Support among People Living with HIV: A Four Country Study’ (2013) 17 aids and Behaviour 1796.

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this question in its recent decision in X v. Tanzania.107 The Committee considered it ‘necessary to clarify that albinism falls within the definition of disability as enshrined in article 1 of the Convention’.108 It based this assessment on the following arguments:109 The Committee further recalls that “albinism is a relatively rare, non-​ contagious, genetically inherited condition that affects people worldwide regardless of ethnicity or gender. It results from a significant deficit in the production of melanin and is characterized by the partial or complete absence of pigment in the skin, hair and eyes. […] The most common and visible type [of albinism] is oculocutaneous albinism, which affects the skin, hair and eyes. […] Lack of melanin in the eyes results in high sensitivity to bright light and significant vision impairment, with the level of severity varying from one person to another. This vision impairment often cannot be completely corrected. In addition, one of the most serious health implications of albinism is vulnerability to skin cancer, which remains a lifethreatening condition for most persons with albinism.” A human rights-​based model of disability requires the diversity of persons with disabilities to be taken into account … The discrimination which is prohibited in the crpd can be directed not only against persons with disabilities but also against persons associated with them, such as relatives or caregivers. This is termed ‘discrimination by association’ and arises where ‘someone is discriminated against not so much on account of their own characteristics but on account of their relations with someone else’,110 such as carers of persons with disabilities who are discriminated against because of their caregiving responsibilities.111 The prohibition of discrimination in Art. 2 crpd extends ‘both to individuals perceived as having a disability, as well as to non-​disabled individuals associated with disabled persons’.112 This is in line with Art. 5 crpd prohibiting discrimination against ‘any person’ on the basis of disability, rather than only against individuals with

107 X v United Republic of Tanzania un Doc crpd/​c /​18/​d /​22/​2014, 31 August 2017 (crpd Committee). 108 X v. United Republic of Tanzania (n 107) at para. 7.6; this was subsequently confirmed in Y v. United Republic of Tanzania (n 102) at para. 7.5. 109 X v. United Republic of Tanzania (n 107) at para. 7.6. 110 Cera (n 105) 112. 111 Cera (n 105) 112–​113. 112 Stein and Lord (n 100) 26.

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disabilities, which the crpd Committee has clarified includes persons ‘associated with a person with a disability’.113 Art. 5 crpd thus extends its protection to persons who have been discriminated against because they have mistakenly been regarded as having a disability or due to their association with a disabled person.114 The protection against discrimination in the crpd thus supports an understanding of particular social group which includes persons with an imputed disability or who are associated with a person with disabilities. As regards the ‘personal characteristics’ and ‘social perception’ approaches, it appears that the crpd does not support an approach which is based on the perspective of society, rather than the person with disabilities. A social perception approach, which takes a societal perspective as its starting point, thus appears irreconcilable with the definition of disability in the crpd. However, most importantly, it is arguable that the crpd constitutes an international recognition that disability now clearly constitutes a prohibited ground of discrimination, rendering it a clear example of a Convention ground like the other grounds already enumerated in the Convention, such as race, political opinion or religion. C

Conclusion on Persons with Disabilities as a ‘Particular Social Group’

In conclusion, the meaning of ‘membership of a particular social group’ is contentious in state practice, with certain jurisdictions embracing a ‘personal characteristics’ approach, and others embracing a ‘social perception’ approach. The ‘social perception’ approach has led to cases of persons with disabilities being refused, which was illustrated in Chapter vi.B above. A vclt-​compliant interpretation of ‘membership of a particular social group’ also does not provide a clear answer. While the ordinary meaning of the term supports the more restrictive ‘social perception’ approach, particularly the object and purpose of the refugee definition and of the Convention grounds indicates that disability, as an internationally recognised prohibited ground of discrimination, must be considered as a sufficient basis for membership of a particular social group. Disability discrimination is not only prohibited in the crpd, but also in the EU Charter of Fundamental Rights. Even if the EU Qualification Directive and its Recast make no reference to disability, 113 crpd Committee, ‘General Comment No. 6 (2018) on Equality and Non-​Discrimination’ un Doc crpd/​c /​g c/​6, 26 April 2018 at para. 20. 114 Stein and Lord (n 100) 28.

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the EU Charter provides authoritative support for disability constituting the basis for recognition of membership of a particular social group.115 Clearly, a disability-​specific reading of ‘membership of a particular social group’ which takes account of the developments at the level of international human rights law, requires the adoption of a personal characteristics approach recognising that the innate or immutable nature of disability is sufficient. However, even if a social perception approach is being adopted, this can be interpreted in a way as to conform to a disability-​specific reading of the refugee definition. As has been seen from the analysis of Art. 1 crpd, disability exists where a ‘long-​term physical, mental, intellectual or sensory impairment’ (an innate or immutable characteristic) comes into interaction with societal and other barriers and thus prevents the person from fully and actively participating in society on an equal basis with others. Disability often results in being excluded from society and deprived of work, education, freedom, privacy, autonomy, friendship and social relations.116 This is part of the meaning of ‘disability’. In addition, persons with disabilities share ‘a history of persecution’.117 In fact, the existence of a disability should create a presumption that persons with disabilities constitute a cognisable social group. Such a reading enabling a disability-​specific reading of the social perception approach would in my view be possible if a presumption of being a cognisable social group exists for persons with disabilities. In conclusion, a disability-​specific reading of the Convention ground of ‘membership of a particular social group’ is consistent with the personal characteristics approach. It is also compatible with a social perception approach, provided a presumption of persons with disabilities as constituting a cognisable social group is accepted. 115 Clara Straimer, ‘Between Protection and Assistance: Is There Refuge for Asylum Seekers with Disabilities in Europe?’ (2011) 26 Disability & Society 537, 546–​547 noting that the lack of any mention of disability in the Recast Qualification Directive is at least ‘partially a product of the failure of member states to jointly shift in practice to a human-​rights-​ based and social model approach to disability’. 116 Kanter and Dadey (n 2) 1153. 117 Kanter and Dadey (n 2) 1153.

chapter vii

Conclusion A

Summary

In this book on the refugee status of persons with disabilities, I  have developed a disability-​specific approach to the refugee definition. I have sought to bridge the currently existing gap between international refugee law and the internationally recognised human rights of persons with disabilities under the crpd. My book is structured according to the individual elements of the refugee definition. A chapter each has been dedicated to the elements of ‘serious harm’ of being persecuted (Chapter iii), failure of state protection (Chapter iv), the causal link (Chapter v) and the Convention ground of particular social group (Chapter vi). All of these aspects of the definition have raised disability-​ specific questions, which I have addressed by developing a legally and practically sound basis for a disability-​specific refugee definition. At the beginning of this book, I have set the scene for this research in the Introduction. Persons with disabilities suffer some of the most severe forms of ill-​treatment, are being persecuted in many countries of this world and often seek protection elsewhere (an estimated 20% of the refugee and internally displaced population is disabled). While persons with disabilities were already persecuted during the Third Reich, they were not expressly mentioned in the Refugee Convention, notwithstanding their inevitable presence on the drafters’ minds after the end of World War ii. I have argued in the Introduction that this lapse may be due to the then prevailing approach to persons with disabilities in general, with the eugenics movement having influenced policies on persons with disabilities across the developed world well into the first half of the 20th century. In fact, until very recently an express recognition of the dignity and human rights of persons with disabilities was missing from international human rights treaty law. The crpd constitutes the most recent group rights treaty at UN level, having been concluded in 2006 and entered into force in 2008. The crpd has paved the way for a new approach to the dignity and rights of persons with disabilities. It has brought about a paradigm shift from the ‘medical model’ of disability, viewing disability as a medical problem to be solved by medical means, to the rights-​based ‘social model’, recognising disability as an interaction between a medical impairment and disabling barriers created by society. The crpd spells out the human rights of persons with disabilities in considerable

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detail and lays down specific guidance for states how to combat and eradicate discrimination against persons with disabilities in the public and the private sphere. The crpd enjoys widespread support among states, being the second most widely ratified UN human rights treaty after the crc with 181 states having ratified it at the time of writing this book. This important paradigm shift, which has taken effect in the field of international human rights law, has yet to reach international refugee law. Today, refugees with disabilities are still less equal than others. The protection of persons with disabilities who are persecuted for reasons of their disability is still very much lacking in most asylum states. The potential impact, which the paradigm shift under the crpd could have on the refugee definition, can be gleaned from areas of other UN group-​rights treaties. In the case of women and children, for instance, once their rights were recognised in cedaw and the crc, this has had a direct influence on the understanding of the refugee definition and led to the development of gender-​and child-​specific approaches to it. However, the crpd has had no discernible impact on the interpretation of the refugee definition in cases of persons with disabilities yet. Refugee decision-​making still appears to be based on the view that persons with disabilities are objects of charity, best catered for by medical treatment, thus echoing the medical model of disability. In refugee law, decision-​makers still fail to recognise that discriminatory attitudes of the state and society lie at the core of the disability. The shift to a rights-​based social model is still a paradigm shift-​in-​waiting in the area of refugee law. This book has set out how the paradigm shift of the crpd can also reach the protection of refugees under the Refugee Convention, developing a starting point for a disability-​specific refugee definition. Before embarking on this enquiry, I have laid the theoretical groundwork for it in Chapter ii, in which I set out the interpretive rules for this book. The vclt forms the international law framework for an interpretation of the refugee definition. A closer examination of the vclt rules has revealed that the sources, which are today predominantly relied on in interpreting the refugee definition, –​ namely unhcr guidance, state practice and international human rights law –​are all most appropriately viewed as supplementary means rather than primary means of interpretation.1 However, it has also been demonstrated across Chapters iii to vi that the ordinary meaning, context as well as object and purpose of the refugee definition are ambiguous, thus permitting recourse to supplementary means in each case.

1 State practice normally fails to meet criteria of consistency but may very rarely fall within the scope of Art. 31(3)(b) vclt.

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As a human rights treaty, the Refugee Convention is subject to an evolutionary interpretation. Such an evolutionary interpretation mandates that the prevailing circumstances at the time of interpretation are taken into account. Particular attention has been given, at the end of Chapter ii, to the crpd and its relevance as a generally accepted norm of international law to the interpretation of the refugee definition. Being one of the most widely ratified human rights treaties, the crpd enjoys the necessary global support to ‘form an integral part of the human rights framework relevant to’ the refugee definition.2 Chapters iii to vi have exposed the challenges in refugee status determination, which persons with disabilities who have had to flee their countries of origin face. In order to develop a disability-​specific refugee definition, I have relied on the case law of four jurisdictions in particular –​Australia, Canada, New Zealand and the US –​, which have considerable experience in assessing asylum claims of persons with disabilities. The starting point of each of the substantive chapters of this book has been an analysis of the existing case law from these jurisdictions on persons with disabilities. This has served to highlight areas of particular importance and concern. In a second step, I have drawn on the vclt rules of interpretation, on general principles of international refugee law and on the crpd to develop a disability-​specific approach to the refugee definition. This book has navigated the substantive requirements of the refugee definition by placing a particular focus on those aspects of the definition, which have given rise to disability-​specific issues in the jurisprudence of the studied states. The focus of this enquiry has been entirely on the substantive aspects of refugee status determination, leaving procedural issues aside for a separate exploration. Chapter iii represents the core of this book. It considers the requirement that an applicant has a well-​founded fear of ‘serious harm’ in her country of origin. This is one of the two constitutive elements of ‘being persecuted’, as serious harm together with a failure of state protection –​the second element –​ constitutes persecution. Chapter iii has demonstrated that a disability-​specific understanding of ‘serious harm’ is often completely missing from asylum decisions. The elaboration of different disability-​specific forms of harm in Chapter iii has highlighted that many of the situations arising in asylum claims of persons with disabilities clearly fall within the scope of the most egregious human rights violations, such as torture and inhuman and degrading treatment, once their concrete circumstances are correctly appreciated. One of the areas of most immediate concern to persons with disabilities is the outlawing 2 af (Ghana) [2015] nzipt 800796 (New Zealand ipt) at para. 52.

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of their forced institutionalisation through the crpd. The crpd provides that persons with disabilities may never be detained on the basis of their disability. While the fear of forced institutionalisation and forced treatment has arisen frequently in asylum cases, persons with disabilities have rarely succeeded in establishing that such treatment constitutes ‘serious harm’. This stands in stark contrast to the evaluation of forced institutionalisation and treatment at the level of international human rights law. Successive UN Special Rapporteurs on Torture and various UN treaty bodies have pronounced themselves on forced institutionalisation and forced treatment and called attention to the fact that these practices regularly amount to torture or ill-​treatment. An important contribution of UN reports on persons with disabilities also consists in the recognition that persons with disabilities frequently find themselves in a situation of powerlessness, which can form the background to torture. The example of institutionalisation also serves to illustrate a second argument which emerges from Chapter iii. Asylum-​decision making in general, and in cases of persons with disabilities in particular, often draws a line between harms which involve civil and political rights such as torture or deprivation of liberty, and those which involve socio-​economic rights such as health or work. However, the prohibition of discriminatory institutionalisation of persons with disabilities highlights the interconnected and interrelated nature of the different types of human rights. While persons with disabilities have a right to liberty on an equal basis with others, some of them require support in order to be able to live independently in the community. The right to liberty of persons with disabilities in Art. 14 crpd is a civil and political right and thus must be implemented immediately. However, the right to live independently and be included in the community, has significant socio-​economic components with financial implications and mainly has to be realised progressively. In fact, the right to live independently and be included in the community in Art. 19 crpd can be seen as the socio-​economic flipside of the civil and political rights coin of the right to liberty in Art. 14 crpd. This serves as a powerful illustration of the interconnectedness and interrelatedness of civil and political rights on the one hand and socio-​economic rights on the other. While a person with disabilities has a civil and political right to liberty, her life in the community will likely require the investment of financial resources in community-​based mental health care programs and other programs of support and assistance. In addition to forced institutionalisation and treatment, I have set out the human rights standards for persons with disabilities concerning violations such as the denial of health care, of work, of education or of legal capacity in Chapter iii. Based on a vclt-​compliant interpretation of the term ‘serious

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harm’, I argue that a disability-​specific understanding of serious harm requires the following three steps. First, asylum decision-​making needs to catch up with developments at the international human rights level, where many forms of harm are already recognised as severe forms of ill-​treatment. Secondly, it is important to recognise that the sharp division between civil and political rights and socio-​economic rights can rarely be drawn in cases involving persons with disabilities. Indeed, many denials of socio-​economic rights for persons with disabilities involve the prohibition of discrimination, which itself is a civil and political right and must be guaranteed immediately. Thirdly and drawing on this, a disability-​specific approach to ‘serious harm’ recognises that every human rights violation, except for those which are de minimis, whether of a civil and political right or of a socio-​economic right, constitutes ‘serious harm’ to persons with disabilities. In Chapter iv I have examined the second element of persecution, the requirement that there is a failure of state protection so that an applicant cannot avail herself of the protection of her country of origin, therefore requiring the protection of the asylum state. This relates to a further area of particular concern to persons with disabilities, namely that of state and societal discrimination. In many countries, persons with disabilities still face systematic discrimination by state agents when accessing public services, such as hospitals or schools, coupled with stigma, marginalization and violence by society or even their own families. States frequently turn a blind eye to the discrimination and persecution of persons with disabilities. I have analyzed the level of protection which is expected of a state in refugee law. Only where a state fails to protect the applicant from serious harm, is it established that the applicant fears persecution. Refugee law does not require countries of origin to be able to provide perfect protection against harm and human rights violations, as no state is able to do so. However, states are under a duty to prevent and remedy any harm that is caused by state officials. In addition, states have to take measures against private actor persecution. The level of protection which needs to be provided against private actor persecution is disputed in the case law. Certain jurisdictions apply a more restrictive ‘due diligence’ approach, which presumes that a state has provided sufficient protection when it has taken due diligence measures. The more lenient approach is the ‘real risk’ approach, which only finds sufficiency of state protection, where protection is such as to eliminate a real risk of serious harm. The analysis in Chapter iv has demonstrated that in cases involving persons with disabilities, decision-​makers often adopt an approach which is even stricter than the ‘due diligence’ approach finding sufficient state protection where states have not even taken due diligence measures, such as investigating, prosecuting or

Conclusion

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remedying violence at the hands of state officials. An exposition of state obligations under the crpd has illustrated that states have far-​reaching obligations of due diligence in international human rights law. If a disability-​specific reading of the required level of state protection is adopted, which takes full account of state duties under the crpd, a much higher level of protection would be required of countries of origin leading to an effective protection of persons with disabilities from any real risk of serious harm. In Chapter v, I have considered what may be described as the crux in many asylum claims of persons with disabilities, the requirement of a causal link or the ‘for reasons of’ clause. This clause introduces the discriminatory element to the refugee definition, clarifying that a person can only qualify as a refugee if she is being persecuted ‘for reasons of’ a Convention ground. First, while persecutory intent on the part of a persecutor is still sometimes required in the case law, it cannot be a prerequisite for the causal link. For a requirement of persecutory intent is not only inconsistent with prevailing practice in refugee law, it also directly contravenes international human rights standards. This is of acute relevance to the refugee claims of persons with disabilities. Many forms of serious harm are today being perpetrated against persons with disabilities in the belief that these practices cure or heal them. Secondly, I have argued that in order to align the causal link requirement with international human rights law and the crpd, not only persecutory situations involving a discriminatory intent on the part of the persecutor, but also those involving discriminatory effect must be recognised as sufficient to meet the causal link requirement. In Chapter vi, I have examined the case law in relation to ‘membership of a particular social group’, which is one of the Convention grounds limiting the reach of the refugee definition to particularly marginalised groups. In the case law under review, persons with disabilities have generally been accepted as being members of a particular social group, namely that of persons with disabilities and sometimes more specific sub-​groups such as persons suffering from schizophrenia. However, in a number of cases, courts have found, based on a social perception approach, that persons with disabilities were not perceived as a separate group in society, therefore not falling within the Convention ground of ‘particular social group’. I have argued in this book that a disability-​ specific approach to this Convention ground recognises that the definition of disability already carries the acknowledgement of a separate social group in it. Persons with disabilities have an innate or immutable characteristic, their impairment, which renders them members of a particular social group. The recognition of disability as a prohibited ground of discrimination in international human rights law further demonstrates, in my view, that persons with disabilities constitute a particular social group to be protected under the Refugee

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Convention. However, even on a more restrictive reading of the ‘particular social group’ element, namely under a social perception approach requiring persons with disabilities to constitute a cognisable social group, persons with disabilities should generally be recognised as members of a particular social group. Disability consists of the combination of a medical or other impairment with societal barriers, which hinder the full and effective participation in life. As such, persons who have a disability have by definition an isolated position in society, thus confirming their perception as a particular social group. The interpretation of each of the elements of the refugee definition set out above in a disability-​specific manner taken together forms the basis of a disability-​specific approach to the refugee definition. An interpretation which gives effect to the paradigm shift to the rights-​based social model, to a refugee law regime which respects the human rights and dignity of persons with disabilities, should lead to the recognition of persons with disabilities as refugees when they are being persecuted in their countries of origin for reasons of their disability. B

Outlook

This book could be said to propose a revolution of the way in which asylum claims of persons with disabilities are being assessed. Introducing the rights-​ based social model into the refugee law sphere may be considered just as revolutionary as the conclusion of the crpd was for international human rights law. Indeed, as Gerard Quinn has pointed out, the shift away from viewing persons with disabilities as objects of charity to be cared for is a revolution that ‘should not be underestimated’:3 It brings into play a different way of seeing the reality of the lives of persons with disabilities, a different set of values with which to judge existing social arrangements and wholly new policy prescriptions to bring about improvements. Sceptics, however, may raise various objections to this proposed revolution. One of the probably most common concerns is a floodgates argument. Even if 3 Gerard Quinn, ‘Resisting the “Temptation of Elegance”: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (Martinus Nijhoff Publishers 2009) 216.

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the objection that asylum states cannot become the hospitals of the world is clearly based on a medical approach to disability viewing disability primarily as a medical problem rather than one imposed by society (as I have argued throughout this book), there may nevertheless be financial implications to accepting persons with disabilities as refugees. First of all, floodgates are never a valid argument against upholding international human rights and refugee law. Secondly, however, this objection brings a further aspect of the crpd into the spotlight, which is of central importance to the whole treaty. The crpd, like all other UN human rights treaties, recognises that where states do not have sufficient resources to realise all socio-​ economic rights immediately, these may be realised progressively. Thus, even on a disability-​specific approach to the refugee definition, countries of origin do not have to provide for the perfect realisation of all rights of persons with disabilities. As long as non-​discrimination is guaranteed, they may implement the socio-​economic rights under the crpd progressively. In addition, this book has highlighted that a country of origin’s financial resources are not solely determined by reference to its own resources. With its mandate to make even international aid disability-​inclusive, the crpd ‘offers opportunities for donor governments seeking to facilitate Convention implementation in less developed countries to do so responsibly, and in step with legal and cultural contexts whilst seeking alignment with the Convention framework and obligations’.4 A further objection is whether the disability-​specific approach set out in this book is asking too much from asylum decision-​makers. Can they be required to be aware both of disability rights and of socio-​economic conditions in the country of origin? The answer this book has given to this question is a clear ‘yes’. In relation to the first element, refugee decision-​makers in the major asylum states with formalised asylum procedures are from countries which have either signed or ratified the crpd (for instance, the states studied here –​Australia, Canada, New Zealand, the UK and the US –​have all at least signed the crpd). As agents of the state, decision-​makers in these countries both at the first instance level and at the judicial level are bound by the human rights obligations their states have entered into and it is high time that they acquaint themselves with the crpd standards, if they have not done so already. In relation to the second aspect of the question concerning a familiarity with socio-​economic conditions in countries of origin, again the answer 4 Michael Ashley Stein and Janet E Lord, ‘Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities’ in Oddny Mjöll Arnardóttir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, vol 100 (Martinus Nijhoff Publishers 2009) 37.

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must be straightforward. While it is undoubtedly challenging, the assessment of asylum claims requires the decision-​maker to engage not only with domestic legal standards but also with those pertaining in countries of origin as well as the practical circumstances that pertain there. As unhcr has pointed out almost 16 years ago now, decision-​makers ‘need to have both a full picture of the asylum-​seekers’ personality, background and personal experiences, as well as an analysis and up-​to-​date knowledge of all the relevant objective circumstances in the country of origin’.5 In my view, a disability-​specific assessment of asylum cases concerning persons with disabilities will lead to a deeper engagement with the actual issues that arise in these cases. This will very much be in accordance with the object and purpose of the crpd to protect persons with disabilities against actual forms of serious harm. Finally, there may be a ‘nobody is perfect’ objection. I have stated at several junctures of this book that the persecution of persons with disabilities is prevalent in many countries around the world. Even when their situation does not amount to being persecuted, the discrimination of persons with disabilities is ubiquitous. No country, no society today perfectly or almost perfectly lives and breathes the obligations under the crpd.6 Everywhere in this world today, persons with disabilities are still being denied their human rights in fundamental ways. The crpd is a recent addition to international human rights law and its full implementation will take many years or rather decades to come. Does this mean that persons with disabilities cannot be recognised as refugees? Does this prevent decision-​makers from finding that other states are persecuting persons with disabilities, when the asylum state itself is still wanting in its implementation of disability rights? The answer this book has given is a distinct ‘no’. This can be illustrated by reference to gender-​specific asylum claims. Women can be recognised as refugees, even though they face discrimination with widespread sexual harassment still forming part of the social fabric in many asylum states today. Nevertheless, the serious harm they face in other countries around the world is regularly the basis for successful refugee claims. Just like the refugee definition has grown more and more gender-​specific over the past couple of decades, it is necessary for a disability-​specific approach

5 unhcr, ‘The International Protection of Refugees: Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ April 2001 2 mn 8 . 6 UN Special Rapporteur on Disability, ‘Statement to Mark the 10th Anniversary of the UN Convention on the Rights of Persons with Disabilities: It Is Time to Move from Law to Practice in the Implementation of the Rights of Persons with Disabilities’ 13 December 2016 .

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set out in this book that the refugee definition will become more disability-​ specific in the years to come. This would bring international refugee law in line with the States parties’ obligations under the crpd. It is well-​established that the refugee law regime is a system of surrogate protection. It offers protection to those, whose own states have failed them, exposing them to serious and discriminatory harm because of who they are or what they believe. The same must be true for persons with disabilities when they flee serious harm, which they face for reasons of their disability, and their state meets this with sheer indifference at best and complicity at worst. They deserve of the protection which the Refugee Convention offers. As Quinn has observed, human rights –​referring in particular to the right to legal c­ apacity under the crpd –​are like a ‘sword’ we possess in order ‘to forge our own way’ in this world.7 The sword of legal capacity is something that non-​disabled persons normally take for granted, but persons with disabilities often lack. In many countries around the world, persons with disabilities are today left not only without sword, but also without armour and without human rights or dignity. A disability-​specific refugee definition will provide persons with disabilities with the shield –​the surrogate protection –​which they require when their sword or armour has been taken from them. 7 Gerard Quinn, Personhood & Legal Capacity: Perspectives on the Paradigm Shift of Article 12 CRPD (hpod Conference, Harvard Law School, 20 February 2010) 10.

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Index Access to justice 181, 224 Accessibility, right to  crpd Art. 9 10, 149n359, 161, 174, 219 See also crpd, Art.9 Cumulative denial 110, 112–​113, 113–​114 Disability-​specific right 8 Employment 10, 107, 113, 171, 175 Health care facilities 142, 169, 235n215 Information 174 Natural disasters 242 Personal mobility 175, 229 Promotion of accessibility 228 Public transport 113–​114, 148 Situation of war 178–​179 Social inclusion 9 Afghanistan  shh v United Kingdom (ECtHR) 169n451, 273n147 African Charter on Human and People’s Rights: see Organisation of African States Age as a basis for social group membership 309 Albinism  As a disability 109n145, 313–​314, 324–​325 As a particular social group 309, 313 crpd Committee decisions and communications 164–​165, 185, 224–​225 Egypt 108–​109, 198–​199 Ghana 94 Mental integrity 94, 98 Persecution of persons with albinism 1, 85–​86, 93–​94, 108–​109, 164–​165, 224, 242 State protection 224 Alienage /​outside the country of his nationality 19–​20 Arrest and detention  Ban on coercive measures in places of deprivation of liberty 155 crpd prohibition of deprivation of liberty based on disability 148, 150–​151 ECtHR case law 150 Forced Institutionalisation: see Forced institutionalisation and forced treatment

Non-​discriminatory 159 On the basis of disability in Indonesia 88–​89 Situated in different theoretical human rights approaches 130, 135, 141 Deprivation of liberty 140, 153, 155, 159, 183, 187, 331 Persecution 132, 183 Private detention centres 217 Reasonable accommodation 158–​159 Serious harm 140–​141, 187 Australia  Migration Act 75, 91n55, 142, 275, 299 Migration Legislation Amendment Act (No 6) 2001 (Australia) 299 Racial Discrimination Act 299 State practice on causal link 244, 247–​250, 251n48, 260, 264, 267, 275–​276, 280n172, 283–​284, 295–​296, 299–​300 State practice on failure of state protection 210–​212, 215 State practice on internal relocation alternative 234–​236 State practice on membership of particular social group 319–​320 State practice on serious harm 140–​143 Autonomy, right to 82 see also crpd, Art. 3 Forced interventions 157 Health care 168 Integrity of the person 163 Living independently and being included in the community 160–​162 Training on accessibility 174–​175 Social perception approach 327 Bangkok Principles 1966 43 Beijing Declaration on the Rights of Persons with Disabilities in the New Century 6 Bifurcated approach (risk of harm /​failure to protect) 91, 263–​266, 278 Bolivia  Refugee Appeal No. 76015 (New Zealand)  112–​113

362 Canada  Immigration and Refugee Protection Act 2001 199n42, 236, 267–​272, 274, 282, 291 State practice on causal link 244, 250–​252, 265, 267–​275, 279, 282, 291–​293, 298 State practice on failure of state protection 210–​212, 215 State practice on internal relocation alternative 234–​236 State practice on membership of particular social group 319 State practice on serious harm  140–​143 Cartagena Declaration of 1984 43 Causation /​Causal Link /​Causal nexus: see “for reasons of” clause cedaw  Civil and political rights and socio-​ economic rights 134, 136 Domestic violence asylum claims 231n203 Human rights approach to the refugee definition 72n315, 74, 77, 131, 329 cedaw Committee, General Recommendations  No. 18 5n26 No. 25 166 cerd  Civil and political rights and socio-​ economic rights 134, 136 Human rights approach to the refugee definition  72n315, 77, 131 Treaty interpretation 57, 278n161 see also icj, Application of cerd cescr General Comments  No. 3 136n294, 221n152, 221n154, 221n157 No. 5 1n1, 5n26, 107nn133–​134, 167n448, 169n451, 173–​174nn468, 177n492, 219n142, 221n155, 227n189, 286–​287nn197 No. 12 136n294 No. 13 221nn158–​159 No. 14 169n452 No. 20 286nn195–​196 Charter on Inclusion of Persons with Disabilities in Humanitarian Action 93n62, 119n200, 180n503

Index Child  Children with disabilities 9, 81–​82, 84–​86, 89, 92, 99, 106, 109 Childhood as basis for social group membership 309 UN Convention on the Rights of the Child 4, 60 Children’s rights 11, 176 Child-​sensitive refugee definition 10, 75–​76 Child refugee claims 11n58, 86, 87, 92, 106, 109, 115 Right to inclusive education: see right to education Civil and political rights 128, 130, 134, 136, 173, 187, 220, 230, 331 Interdependence 133, 135, 159–​160, 184, 187 Overlap with socio-​economic rights  135–​136, 147, 159, 162, 184, 186, 225, 332 cjeu judgments  Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland 215nn122–​123 Bundesrepublik Deutschland v B and D 73n324 Centre public d’action sociale d’Ottignies-​ Louvain-​La-​Neuve v Moussa Abdida 186n520 CK and Ors v Supreme Court of Republic Slovenia 186n520 K v Bundesasylamt 170n458 Mohamed M’Bodj v État belge 186n520 MP v Secretary of State for the Home Department 170n458, 186n520 Committee Against Torture Concluding Observations  Czech Republic (2004) 166n444 Peru (2006) 166n444 Committee Against Torture General Comment No. 2: Implementation of Article 2 by States Parties 218n137 Committee on the Protection of the Rights of All Migrant Workers Joint Statement with crpd Committee 13nn65–​68 Context (vclt Art.31(1))  Evolutionary approach 35 Preamble 34–​35

Index Council of Europe Declaration on Territorial Asylum of 1977 43 Council of Europe Commissioner for Human Rights 82n6, 82n8–​9, 82n11, 115n178, 161, 178, 227n187 Country of nationality 143, 19–​20, 244n15 Country of origin, evidence relating to  Discrimination 97, 101, 102, 105, 114, 193, 268n125, 272, 284 Education 118 Employment opportunities 112–​113 Institutionalisation 90, 91, 251n52 Intent of the persecutor 245, 255, 262, 282 Medical services 100–​101, 104, 105, 106, 121, 193, 200, 235–​236, 247, 248, 268n125, 271 Particular social group 308 Persecution 97, 110, 272, 293 Resource constraints 292 Risk in situations of armed conflict 120 Ritual murders of persons with albinism 86–​87 State protection 194, 196, 199, 200, 211–​213, 252 crc General Comment No. 9: The Rights of Children with Disabilities 223n170, 225nn177–​178, 229n201 crc State Party Report: Eritrea (2002) 88n31 Credibility 101, 114, 235, 248n190, 292 crpd 8, 11–​12, 15, 17, 19, 27, 59, 63, 74, 84, 90, 92, 94, 96, 134, 184, 188–​189, 191, 243, 252, 262, 278, 290, 294, 305, 328–​329, 331, 333–​335 Art. 1 9, 312, 323–​324, 327 Art. 2 113, 151, 172, 222, 256–​258, 287, 323, 325–​326 Art. 3 9, 111, 114, 148, 163 Art. 4 10, 216–​217, 220, 225–​226, 228, 229n200 Art. 5 95, 151, 216–​217, 219, 221, 224, 225, 257–​258, 287, 300, 325–​326 Art. 6 165–​166, 168, 257 Art. 7 167–​168 Art. 8 219–​220 Art. 9 10, 113, 174–​175, 179n497, 219 Art. 10 150

363 Art. 11 18, 178, 179n496, 180, 242n11 Art. 12 10, 121, 152, 164, 180–​182 Art. 13 181 Art. 14 150–​151, 152, 159, 162, 331 Art. 15 94, 152–​153, 159, 162, 164, 165, 222, 225 Art. 16 162, 223–​224 Art. 17 162–​166, 225 Art. 19 10, 159–​162, 187, 226–​227, 111, 159–​162, 187, 226–​227, 331 Art. 20 175, 229 Art. 23 166, 257 Art. 24 9, 176–​177, 257 Art. 25 162, 164, 168, 170n455, 171, 228, 302 Art. 26 10, 170, 228 Art. 27 10, 113, 171, 174, 257 Art. 28 173–​174 Art. 29 161 Art. 30 95, 161 Adjudication 185–​186 As supplementary means of interpretation 60, 66, 253 Drafting history 5n30, 7–​8, 149n360, 220 Due diligence 218, 230, 238 see also due diligence EU accession 8, 146–​147 Human rights approach 76–​82, 95–​96, 324 Optional Protocol 7–​8 Persons with hiv 98 Preamble 6n34–​35, 166 Positive obligations 218, 222 Ratification by country of origin 102, 109 Ratification rates 8, 136, 330 Refugees 13–​14, 18, 180 Relationship with existing human rights 148–​149, 219–​220 Social model of disability 9, 18 Socio-​economic rights 10, 134–​135, 137, 147, 220 Progressive realisation 10 crpd Committee Concluding Observations  Armenia (2017) 179n498 Austria (2013) 227n186 Azerbaijan (2014) 180n501 Bosnia and Herzegovina (2017) 179n498, 180n501 China (2012) 227n186 Colombia (2016) 180n504

364 crpd Committee Concluding Observations (cont.) Cook Islands (2015) 153n383 Croatia (2015) 153n383 Cyprus (2017) 179n498 Czech Republic (2015) 153n383 Ethiopia (2016) 179n498 European Union (2015) 179n498 Gabon (2015) 179n498 Germany (2015) 153n383 Guatemala (2016) 179n498 Honduras (2017) 179n498 Kenya (2015) 179n498 Portugal (2016) 179n498 Qatar (2015) 179n498 Republic of Moldova (2017) 179n498 Serbia (2016) 179n498, 180n501 Slovakia (2016) 180n501 Spain (2011) 152n374 Thailand (2016) 179n498 Tunisia (2011) 152n374 Uganda (2016) 179n498 Ukraine (2015) 180n501 United Arab Emirates (2016) 179n498, 180n501 crpd Committee decisions  Al Adam v Saudi Arabia 153n381 hm v Sweden 173n467, 257n76 Marie-​Louise Jungelin v Sweden 173n467 Mr F v Austria 175n480 Noble v Australia 158n409 Nyusti and Péter Takács v Hungary 173n467 ooj and Others v Sweden 148 sc v Brazil 324n102 X v Argentina 158n409 X v United Republic of Tanzania 165nn437–​439, 224, 225n176, 287, 325 Y v United Republic of Tanzania 165n439, 324n102, 325n108 Zsolt Bujdosó and five others v Hungary 148n356 crpd Committee  Joint Statement with Committee on the Protection of the Rights of All Migrant Workers and Members of their Families 13nn66–​68

Index crpd General Comments  No. 1 (2014): Article 12: Equal Recognition before the Law 16n75, 181n505 No. 2 (2014): Article 9: Accessibility 10n54, 174n474, 175n478, 179n497 No. 3 (2016): Article 6: Women and Girls with Disabilities 93nn62–​63, 166n442 258n80 No. 5 (2017): Living Independently and Being Included in the Community 149n359, 160n413 No. 6 (2018): Equality and Non-​ Discrimination 220n147, 138n224, 258–​259nn80, 300n258, 326n113 Customary international law  Opinio juris 25n42 Relevant rules of international law applicable between the parties 51 vclt rules of interpretation as customary international law 28–​29 Death, risk of 85, 87–​88, 292 Declaration of States Parties to the 1951 Convention and /​or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States parties, Geneva, Switzerland, 12–​13 December 2001 42, 64, 70, 127 Democratic Republic of Congo (drc)  Mwayuma et al v Canada (Canada) 195n18 Diallo (Republic of Guinea v Democratic Republic of Congo) (icj) 44, 45n153 Armed Activities on Territory of Congo (Democratic Republic of Congo v Uganda)(icj) 28n59 Differential treatment 276, 286 Indirect discrimination: see Indirect discrimination Disability  Cognitive disability 2, 15, 16nn74–​75, 236–​237 Definition 9, 324–​325 Intellectual disability 1, 2n6, 4n22, 9, 15, 16n74, 81, 84–​85, 87n29, 88, 91, 93, 95n73, 104n120, 116–​117, 120, 148n356, 151, 155, 158n409, 167n445, 174n473, 177,

Index 181n511, 196, 223, 258, 306–​307, 309–​310, 315, 323, 327 Albinism as disability 85, 109n145, 313–​314, 324–​325 hiv as disability 98–​99 Physical disability 4, 9, 84, 86–​87, 102, 104, 109–​110, 111, 116–​117, 143, 235, 236–​237, 306–​309, 323, 327 Psychosocial disability 2, 81, 88, 91, 120, 152–​153, 158, 194, 196, 223, 241, 305, 306, 310, 315 Disability as basis for social group membership 306–​316 Cumulative bases 308–​309, 272 Family members of persons with disabilities 307, 314–​315 Imputed disability 309 Parents of children with disabilities 307  Persons with albinism 313–​314 Persons with disabilities 306 Persons with hiv 307, 312 Persons with intellectual or psychosocial disabilities 306, 309–​310 Disability-​specific approach, see: Disability-​ specific refugee definition Disability-​specific refugee definition 12, 14–​15, 63, 92, 95, 117, 120, 135, 263, 328–​329, 330, 337 Disability-​specific approach to causal link 302–​303 Disability-​specific approach to persecution in situations of war 120 Disability-​specific approach to serious harm 122, 135, 184–​188 Incompatibility with persecutory intent 263 Discrimination, prohibition of  Causal nexus 256 crc 117 crpd 219, 221–​222, 256–​258, 262, 323 Direct discrimination 258 Discriminatory effect 288 Education 178 icescr 286 Indirect discrimination 258, 262, 268, 300 Individuals associated with disabled persons 325 In relation to socio-​economic rights 105, 118, 134

365 Reasonable accommodation 173, 175 Refugee Convention 21 Revised European Social Charter, Art. E 229 State obligations 105, 312 Domestic violence  Asylum claims 136, 141, 183, 190n4, 231, 235, 264–​265, 309 Due diligence standard of protection 202 Australia 212 Canada 211–​212 cjue 215 International human rights law 205–​206, 207, 215, 216, 230, 238, 333 Lower protection 204–​205, 230 Non-​state actor persecution 211–​212, 219 Positive state obligations under crpd 222–​225, 231, 238 Presumption of state protection 202, 211–​212 State practice 332 unhcr 209–​210 echr judgments  Al‑Adsani v the United Kingdom 54n221, 55n225 as v Switzerland 273n147 Aswat v United Kingdom 12n61 Babar Ahmad and Others v United Kingdom 163n430 Banković v Belgium and others 54n221 Bensaid v United Kingdom 163n430 Bureš v The Czech Republic 151n369, 223n166, 224n172 D v United Kingdom 12n61, 273n147 Demir and Baykara v Turkey 54n223, 55n225 Fogarty v the United Kingdom 54n221 Golder v the United Kingdom 54n221 Keenan v United Kingdom 163n430 Kuttner v Austria 151n367 Loizidou v Turkey (Merits) 54n221 Marckx v Belgium 54n223 McElhinney v Ireland 54n221 N v United Kingdom 12n61, 169n451, 273n147 Öcalan v Turkey 50 Paposhvili v Belgium 12n61, 169n451 Paposhvili v Belgium (gc) 242n9, 273n147

366 echr judgments (cont.) Pretty v United Kingdom 157n403 Rantsev v Cyprus and Russia 55nn225–​226 shh v United Kingdom 12n61, 169n451, 273n147 Siliadin v France 55n225 sj v Belgium ( formerly known as Josef v Belgium) 273n147 Soering v United Kingdom 50 Sørensen and Rasmussen v Denmark 55n225 Wemhoff v Germany 61–​62 X v Finland 151n369 Yoh-​Ekale Mwanje v Belgium 169n451 echr medical decisions in the context of refoulement 169n451, 273n147 ecosoc 6nn31–​33, 24n38, 119n203 Education, right to  Best interest of the child 167 Denial of education 115–​116 Evidence of the denial of education  118–​119 Human rights law 21, 82, 117–​118, 148, 170, 174, 257 Implementation of the right to education 177–​178, 188 Inappropriate education 116–​118 Inclusive education 115–​119, 176–​178 Persecution 80, 81, 99, 116, 128, 141, 143–​144, 184 Private actors 238 Roma children in Hungary, Slovakia, Czech Republic 92, 106, 117 Segregated schooling 119 State obligations 199, 225, 229 unhcr Handbook, Guidelines 116, 138, 139–​140, 147 Effectiveness principle 36, 57, 207, 262, 301, 322 Good faith interpretation 20n14, 29–​31, 36, 61, 64, 124 Egypt  ac (Egypt) (New Zealand) 74n330, 78, 108–​109, 113, 185, 198–​199, 201, 216n126, 282n181, 297, 313–​314 rrt (Coptic Egyptian woman with cognitive, physical and psychiatric disabilities)(Australia) 236–​237, 299n254

Index Ejusdem generis principle 317, 319 Employment, right to: see Work, right to England: see United Kingdom Ethiopia 179 X (Re) (Ethiopian woman with mental health issues)(Canada) 103–​104, 306n12, 309n25 EU Recast Qualification Directive 8n48, 15, 18n6, 48, 73, 77, 82n10 Practice on causal link 260–​261, 265, 285, 298 Practice on failure of state protection 214–​215 Practice on membership of particular social group 313n48, 320–​321 Practice on serious harm 145–​147 European Committee of Social Rights decisions  Autism-​Europe v. France 177, 229 Mental Disability Advocacy Centre (mdac) v. Bulgaria 177 European Council of Refugees and Exiles (ecre) 321n88, 322 European Asylum Support Office  Survey of iarlj 73 European Social Charter (1961)  Persons of unsound mind 5n25 Prohibition of discrimination 177, 229 Right of persons with disabilities to independence, social integration and participation 229 Right of children and young persons to social, legal and economic protection 177, 229 Evolutionary interpretation  Methods of interpretation used by courts 27, 58, 60 Refugee Convention 14, 30–​33, 63–​67, 330 vclt factors and interpretive elements 27, 35, 36, 40, 57, 62–​63 Failure of state protection 189–​240 Ability and willingness to protect 190, 193, 264 Able and willing distinguished 190, 194–​195, 195, 199 crpd 216 Due diligence: see Due diligence approach

367

Index Failure to seek protection 190n4 Health professionals as state agents 200, 217 Inability to protect 199, 211, 218, 222, 231, 272, 302 Internal protection alternative: see Internal protection alternative In relation to persecution 83 Predicament approach 277–​283, 285, 288–​290 Presumption of inability or unwillingness to protect 209 Real risk approach: see Real risk approach Standard of protection 190, 198, 198–​199, 200, 201–​207 Surrogate protection 125–​127, 131, 280, 290, 296, 337 Unwillingness to protect 190–​191, 193, 195, 200, 201, 210–​211, 218, 230, 268–​269 Fiji  bg(Fiji)(New Zealand) 68n291, 141n323, 214 EZA17 v Minister for Home Affairs (Australia) 97n89 Subermani Gounder v Minister for Immigration & Multicultural Affairs (Australia) 247n31, 311 szufq & Anor v Minister for Immigration & Anor (Australia) 105, 315 Forced abortion/​sterilisation as serious harm 140, 163, 166–​167 Forced institutionalisation and forced treatment  As serious harm 81, 88–​92, 99, 121, 150–​153, 160, 162, 182, 187, 311, 331 As torture 153–​159, 331 X (Re) (South Korean with mental health issues) 195–​198 X (Re Korean single mother suffering from schizophrenia) 198 “for reasons of” clause  Contributing cause 241, 290, 293, 296–​297 Cumulative harm 271–​273, 276, 288, 302 Discrimination 246, 247–​248, 256–​258 Discriminatory effect 242, 247n31, 252, 258, 262, 266, 276, 277–​280, 283, 285, 287–​288, 288–​290, 302 Discriminatory intent 247n31, 266, 267, 271, 280, 284, 285, 288, 302

Due diligence approach: see due diligence standard of protection Effective cause 290 Indirect discrimination 258, 262, 268 Internal protection alternative 233 Real risk approach 264, 332–​333 Michigan Guidelines 256n71, 261, 278n160, 280n169, 295n229, 296, 298n245 Mixed causes 241, 242, 290–​302 Omission 241–​242, 263, 266, 276, 285, 288 Persecutory intent 241, 243–​252, 252–​262, 282, 302, 333 Private actors 248, 263, 265, 278 Refugee Convention 252–​254 Socio-​economic rights 250 Sole cause 290, 291, 295 State practice 19n12, 244–​247, 247–​250, 250–​252 unhcr approach 259–​260, 261, 262, 264, 280–​281, 296 Freedom of movement 10, 132n268 Ghana 84–​85, 108N.141 af(Ghana)(New Zealand) 94–​96, 185, 242n10, 309n28, 314, 330n2 Ampong v Canada (Canada) 101–​102, 270–​271 Deri v Canada (Canada) 101 rrt(Ghanaian with mental health problems)(Australia) 91, 121, 195, 221, 306n12, 311 Good faith interpretation  As general rule of interpretation 29–​31 Holistic approach 124, 204, 241n4, 318 Multiple authentic language versions 61 Principle of effectiveness 36 Greece 89, 321n88 Aegean Sea Continental Shelf Case (Greece v Turkey)(icj) 32n82 Mavrommatis (Greece v Britain)(pcij) 61n270 Health, right to  Forced treatment 156 hiv: see hiv Limited financial resources 104 Non-​discrimination 168–​171

368 Health, right to (cont.) Progressive realization 105–​107 Right to health care 168–​171, 289, 302 Scope 142 State protection 200 hiv, persons with  As a disability 98, 324 As members of a particular social group 305, 306–​307, 309, 312, 315 Criminalization of transmission 98–​99 Discrimination 81, 98, 100, 101, 105, 170, 248, 268, 292, 293–​294 Discussion of resource allocations 101, 104, 228, 247, 270, 292, 294 Evidence of lack of necessary treatment 268, 271 Linked to albinism 93 Progressive realization 105 State protection 100, 192–​194, 200 Housing, right to adequate  Disability-​based discrimination 219, 286 Denial and loss of housing 100, 139, 144 icescr 96, 173 see also: Right to adequate standard of living Human rights-​based model (of disability)  12, 14, 96, 106, 111–​112, 114, 116, 122, 324–​325, 328–​329, 334 Human rights approach  Carlier 129–​131, 133 Foster 130, 133–​136 Hathaway 130 Hathaway and Foster 136–​137, 147, 184, 203 Goodwin-​Gill and McAdam 132–​133 To persecution 128, 183 To refugee definition 67–​75, 128 Human Rights Committee; see UN Human Rights Committee Human Rights Watch 80, 88–​89, 152n376, 153n379, 227n190, 240n2, 241nn5–​8, 312n47 Hungary 321n88 ae(Hungary)(New Zealand) 81n4 Gabčikovo-​Nagymaros Project (Hungary/​ Slovakia)(icj) 28n59, 31n71, 70 Nyusti and Péter Takács v Hungary (crpd) 173n467

Index X (Re) (Hungarian Roma minor with disability)(Canada) 92, 106n130 Zsolt Bujdosó and five others v Hungary (crpd) 148n356 iccpr 54–​55, 66, 69, 73–​74, 77, 128, 131–​132, 135, 136, 141, 159 Art. 6 150 Art. 7 91, 94, 153 Art. 15 95 Art. 18 95, 134 Art. 26 95 As first and second category rights 130 icescr 54, 66n284, 69, 77, 95, 113, 128, 130–​131, 134, 136, 141, 286, 302 Art. 9 174 Art. 10 161, 167 Art. 11 173–​174 Art. 12 169 Art. 13 176 As third-​category rights 130 icj judgments  Aegean Sea Continental Shelf Case (Greece v Turkey) ( Judgment) 32n82 Application of cerd(Georgia v Russian Federation) (Preliminary Objections) 57n245, 278n161 Arbitral Award of 31 July 1989 (Guinea-​ Bissau v Senegal) ( Judgment) 28n59, 36n106 Border and Transborder Armed Actions (Nicaragua v Honduras), Jurisdiction and Admissibility ( Judgment) 30n69 Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic  of Congo), Merits ( Judgment) 45n153 Case Concerning Armed Activities on Territory of Congo (Democratic Republic of  Congo v Uganda) ( Judgment) 28n59 Case Concerning Kasikili/​Sedudu Island (Botswana/​Namibia) ( Judgment) 28n59 Case Concerning the Dispute Regarding Navigational and Related Rights (Costa  Rica v Nicaragua) ( Judgment) 32n82

Index Certain Expenses of the United Nations (Advisory Opinion) 31n76 Constitution of the Maritime Safety Committee of the Intergovernmental Maritime  Consultative Organization (imco) (Advisory Opinion) 31n76 Gabčikovo-​Nagymaros Project (Hungary v Slovakia) ( Judgment) 28n59, 31n71, 70 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections ( Judgment) 30n69 Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) ( Judgment) 31n76 Legal Consequences for States of the Continued Presence of South Africa in Namibia  (South West Africa) (Advisory Opinion) 31n71, 31–​32, 70n304 Oil Platforms (Iran v US) Merits ( Judgment) 28n59 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) ( Judgment) 28n59 Ill-​treatment: see Torture, prohibition of Independent living and inclusion in the community, right to (Art. 19 crpd) 10, 159–​162, 187, 226–​227  See also crpd, Art.19 Community-​based health care 226 Indonesia 88–​89, 241 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) (icj) 28n59 Inhuman, cruel or degrading treatment: see Torture Institutionalisation: see Liberty of person, right to and crpd Internal protection alternative 232–​237 Accessibility 233 Human rights violations 233, 237 Personal circumstances 232, 233, 239 Reasonableness of internal relocation alternative 190–​191, 231n203, 233, 234–​236 Safety of internal relocation alternative 233

369 International Association of Refugee Law Judges (iarlj) 16n75, 47, 74, 126n231, 240n3, 308n21 European Chapter 16n74, 73, 77 International Labour Organisation (ilo)  Convention No. 159 5n27 Recommendation No. 99 5 Recommendation No. 168 5n27 International Law Commission (ilc) 44, 62 Draft Articles on the Law of Treaties (1966) 28n58 Reports of the Commission to the General Assembly (1964) 30n66 Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law 26n49, 29n61, 31n79, 52n208, 52n212, 53n215, 54n221, 65n279, 67n287 Irish High Court  E.M.S. v. The Minister for Justice Equality and Law Reform 293–​294 Lebanon  rrt(Lebanese woman with physical and intellectual disabilities) (Australia) 104 X (Re) (Lebanese minor with Tyrosinemia and adhd)(Canada) 118n196 X (Re) (Lebanese single mother with child born with spina bifida)(Canada) 273 X (Re) (Lebanese single woman with mental illness)(Canada) 96, 98, 185n519, 306n12, 309n25 Legal capacity, right to  Access to justice 224 cprd 8, 10, 151, 164, 337 Denial of legal capacity 120–​121, 155, 180–​181, 182, 224 Institutionalisation 151–​153 Informed consent 157, 163 Supported and substituted decision-​ making 10, 16n75 Liberty of person, right to, see: crpd, Art. 18, see also: Arrest and detention Life, right to 128–​129, 148, 150 Literal interpretation 30, 31, 33, 202, 316

370 Medical model 9, 12, 82, 90–​91, 92, 101, 106, 111, 302, 328–​329 Objects of charity, persons with disabilities as 9 Membership of particular social group 14, 20, 240–​241, 264, 304–​327 Cumulative bases 309 Disability as membership: seeDisability as basis for social group membership Ejusdem generis approach 306, 317, 319 Immutable characteristic 73, 304–​306, 333 Personal characteristics approach  305–​306, 308, 311, 316, 318–​320, 322, 324, 326–​327 Social perception approach 306, 308, 311, 315–​316, 318–​322, 324, 326–​327 Mexico  Covarrubias v Canada (Canada) 267n117, 268 Dena Hernandez v Canada (Canada) 116 Matter of Ricardo de Santiago-​Carrillo (US) 90n48, 306n12 Omar Antonio Chalita Gonzalez v Canada (Canada) 200, 268n125 Saldivar Soto v Canada (Canada) 234–​235 X (Re) (Mexican man suffering from kidney failure)(Canada) 269n126 X (Re) (Mexican single mother with son with epilepsy)(Canada) 117–​118, 199, 273 Mongolia  szhcu v Minister for Immigration & Anor (Australia) 111–​112, 308 Natural disasters 178, 242 New Zealand  State practice on causal link 256, 265, 278, 282, 297 State practice on failure of state protection 210–​211, 215–​216 State practice on internal relocation alternative 234 State practice on membership of particular social group 319 State practice on serious harm 140–​143 Non-​state actors as agents of persecution 65, 76, 83, 91, 165, 192, 201, 202, 203n56, 213, 216, 219, 222, 223, 227, 238, 263–​264, 265, 278 travaux préparatoires 206

Index Opinio juris 25n42 Organisation of African States  African Charter of Human and Peoples’ Rights 44 African Commission on Human and Peoples’ Rights 44 Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) 43 Pakistan  Liaqat v Canada (Canada) 89n42, 194 X (Re) (Pakistani minor with disability) (Canada) 118n196 Particular social group, see membership of particular social group Personal mobility, right to, see: crpd, Art. 20 Poland 4 tnl(Re)(Canada) 100, 307n13, 312 X (Re) (uasc from Poland with disability) (Canada) 190n4, 265n108, 306n11, 308n20 Qualification Directive, Recast (2011) 15, 48–​49, 73, 77 Causal link 265, 285 Failure of state protection 214–​215 Lack of mention of disability 327n115 Membership of a particular social group 318, 320–​322, 326 Serious harm 145–​146 Real risk approach to failure of state protection 202, 206, 211, 214–​215, 231–​232, 238, 332 Refugee Convention  1967 Protocol  Principle of surrogacy  Refugee definition  Rights-​based approach to disability  Serious harm /​persecution  Bifurcated approach  Human rights as benchmark  Sexual violence  Sexual orientation/​gender identity  unhcr guidelines  Situations of war 119–​120, 178–​180, 182, 233, 292

Index Slovakia 180n501 X (Re) (Slovakian Roma child with disabilities)(Canada) 106, 117 Gabčikovo-​Nagymaros Project (Hungary v Slovakia) (Judgment) (icj) 28n59, 31n71, 70 Social inclusion, right to  crpd 9–​10, 331 Right to be included in the community 10, 159–​160 Positive state obligation 226 See also forced institutionalisation and forced treatment See also right to work Socio-​economic rights  Core content 142 Cumulative discrimination/​violations  100, 109, 137, 144, 147, 162, 168–​171, 241–​ 242, 291 Causal nexus 250–​251, 266, 277–​278, 29, 294 Discrimination 110, 118, 173, 175, 188, 199, 221, 229, 277, 293, 332 Henry Shue 135–​136 International aid money 227 Progressive realisation 10, 105–​106, 118, 134, 147, 173, 196, 199, 220–​221, 229–​230, 266, 335 Resource constraints and budget 113, 118, 191, 195, 199, 222, 231, 292, 301 Violations as persecution/​serious harm  80, 129, 133, 139, 141, 183–​184, 302, 332 See also Accessibility See also civil and political rights see also the right to adequate housing See also the right to education see also the right to health See also the right to work South Africa 2n8, 83 co(South Africa)(New Zealand) 95n73, 291n215 ems v The Minister for Justice Equality and Law Reform (Ireland) 293–​294 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)(Advisory Opinion) (icj) 31n71, 32nn80–​81, 70n304 South African Refugee Act 1998, social group 307

371 South Korea  X (Re) (Korean single mother suffering from schizophrenia)(Canada) 198 X (Re) (South Korean with mental health issues)(Canada) 89n42, 195–​198, 304n3, 306n12, 310n33, 311 Swaziland  Mkhonta v Canada (Canada) 104–​106 X (Re) (gay man with hiv from Swaziland) (Canada) 137, 312 Tallinn Guidelines for Action on Human Resources Development in the Field of Disability 5n28 Teleological interpretation  In relation to good faith 30 Non-​discrimination relating to the causal nexus 256 Torture, prohibition of  Based on disability 1, 80, 164 cat 60 crpd Art. 15 222, 224 ECtHR 54, 273 Forced institutionalisation and forced treatment 85, 89, 152–​159, 162, 223, 241, 247, 287, 331 Forced sterilization 167 Ill-​treatment 90, 91, 122, 152–​157, 164–​165, 186–​187, 213, 222–​223, 224, 233n207 Inhuman and degrading treatment 2, 89, 91, 92, 128, 130n251, 132n266, 140, 147, 151n369, 153–​159, 165, 167, 187, 195, 222, 241–​242, 249, 273, 330 Persecution 125, 128, 131, 140, 144, 183, 186, 295 Private actors 165, 217–​218, 235 Rehabilitation 170, 171 Trafficking, Victims of 55, 110, 261 (see unhcr Guidelines No. 7) Trinidad and Tobago  Louis v. Canada (Canada) 121, 272–​273 udhr  As the object and purpose of the Refugee Convention 64–​65, 69 Human rights approach to the refugee definition 72, 73, 77, 128, 130, 131, 136 In preamble of Refugee Convention 34–​ 35, 36, 64, 125

372 UN General Assembly  Declaration on the Rights of Disabled Persons 1975 5n28 Declaration on the Rights of Mentally Retarded Persons 1971 5n28 UN Decade of Disabled Persons 5 World Programme of Action concerning Disabled Persons 5 unhcr  Annotated Comments on the ec Council Directive 2004/​38/​e c 319n77 Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status 24, 137nn303–​304, 138–​139nn306, 202n52, 208n83, 241n4, 264n103, 281n173, 296n233 Response to the Green Paper for the Future of the Common European Asylum System 319n77 The International Protection of Refugees: Interpreting Article 1 of the 1951 Convention 3n13, 32n85, 138n305, 139nn310–​311, 187n523, 206n76, 261n95, 318n74, 319n78, 336n5 unhcr Guidelines on International Protection 24, 25n42, 59, 65 No. 1: Gender-​Related Persecution 74n326, 208n83 No. 2: Membership of a Particular Social Group 264n103, 305n4, 318n70, 318n72 No. 4: Internal Flight or Relocation Alternative 232n205, 233nn207–​209 No. 6: Religion-​based Refugee Claims 74n326 No. 7: Victims of Trafficking and Persons At Risk of Being Trafficked 208n84, 209–​210nn92, 233n209, 261n96 No. 8: Child Asylum Claims 74n326, 139–​140nn312, 208–​209nn86 No. 9: Claims to Refugee Status Based on Sexual Orientation and/​or Gender Identity 190n4, 209–​210nn89, 251n48, 261n97, 281n174, 296n234 No. 12: Claims for Refugee Status Related to Situations of Armed Conflict and Violence 281n175 unhcr ExCom Conclusions 24–​25, 41–​42, 45–​47, 65

Index No. 103 on Complementary Forms of Protection 66n282 No. 108 on International Protection 12 No. 110 on Refugees with disabilities 78 unhcr  Interpretation 25 Practice on causal link 261–​262, 264, 280–​281 Practice on failure of state protection 207–​210, 215 Practice on serious harm 137–​140 Practice on membership of particular social group 318–​319 Role and Functions 22, 24 UN Human Rights Commission 6 Study on ‘Human Rights and Disability: The Current Use and Future Potential of U.N. Human Rights Instruments in the Context of Disability’ 7n38, 18n6 UN Human Rights Committee decisions  Hamilton v Jamaica 5n26, 158n409 UN Human Rights Committee General Comments  No. 18: Non-​Discrimination 285n194 No. 28: Article 3: The Equality of Rights Between Men and Women 166n444 No. 29: Article 4: States of Emergency 134n284 United Kingdom  State practice on causal link 254–​255, 265, 279, 284, 297 State practice on failure of state protection 210–​211, 213–​215 State practice on internal relocation alternative 234 State practice on membership of particular social group 321–​322 State practice on serious harm 140–​141, 144–​145 United States  State practice on causal link 244–​247, 260–​261, 265, 285, 298 State practice on failure of state protection 210–​211, 214–​215 State practice on internal relocation alternative 234 State practice on membership of particular social group 320

Index State practice on serious harm 140–​141, 143–​144 UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care 5n28 UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities 5–​6 Supplement to the Standard Rules, ‘Reaching the most vulnerable: proposed supplement to the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities 6, 119n203 UN Special Rapporteur on Disability 5n30 Bengt Lindqvist 5 Statement to Mark the 10th Anniversary of the un crpd 189, 336n6 UN Special Rapporteur on Torture and cidtp 149 Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2008) 152n377, 154nn384–​387, 155nn390–​393, 156n396, 156nn398–​400, 158nn407–​408, 159n410, 164, 165n440, 217n136 Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2010) 171n459 Juan E. Méndez 152, 157 Manfred Nowak 154, 217, 287 Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2013) 120n208, 153n378, 155n389, 155n394, 156n395, 157–​158nn401, 167n445, 170n455, 218n137 vclt  Relevant rules of international law (vclt 31(3) (c)) 30, 51–​55, 60, 66, 70

373 Other articles in the same treaty 33 Subsequent agreement regarding the interpretation of the treaty (vclt 31(3) (a)) 30, 40–​43 Subsequent practice between the parties 30, 42–​51 Treaty in connection with the conclusion of the treaty 29 Well-​founded fear  Refugee Convention and 1967 Protocol 19–​20 Disability in the context of internal armed conflict 120 Human rights violations as persecution 118, 132 Likelihood of harm 132 State protection 190, 202, 203, 206–​207, 214, 234, 236, 240, 244n15, 245, 264, 296, 330 Work, right to 21, 171–​175 Albinism 85, 94–​95, 198–​199 cprd Art. 27 257 Discriminatory denial 107–​114, 182, 197, 327, 331 Internal protection alternative 236–​237 Progressive realization 229 Systematic denial amounting to persecution 128 Zimbabwe 268, 324n106 Reference 1728413 (Zimbabwean with disability)(Australia) 102, 185n518, 306n11 rn(Returnees) Zimbabwe cg(UK) 145n348 rs & Ors (Zimbabwe –​aids) Zimbabwe cg(iac) 14n69, 18n9 185n516 rt(Zimbabwe) v Secretary of State for the Home Department (Canada) 73 X (Re) (Zimbabwean man with hiv)(Canada) 268n125, 292