The need to evaluate legal protection decision making in claims involving disability
This paper explores some of HBF’s experiences in relation to decision-making in legal protection claims involving disabled people, primarily those suffering from physical or mental illness or impairment. It has been produced to present at relevant National Asylum Stakeholder Forum subgroups in Q.1 of 2021 as a form of service evaluation exploring the extent to which asylum decision making is achieving the aim of effectively recognising disabled people who are at risk of persecution within a reasonable timeframe.
HBF is concerned that there is no overarching framework for assessing claims involving disability, nor an API on issues arising due to disability, and that, as a result, consideration of the impact of disability on protection claims is inconsistently or selectively applied.
We have explored some issues in this area in a series of case studies. In all the cases we reviewed, the disabled people involved faced very protracted legal processes before finally receiving a grant of legal protection. These delays had severe, harmful impacts on many of them.
It is our view that there is a need to evaluate further the sufficiency of the measures currently in place in order to create an accessible and inclusive asylum decision-making process for disabled applicants and to ensure those with medical conditions, impairments, developmental disorders and neuro-diversity are not ‘disabled’ or re-victimised by the asylum determination process.
Summary of Concerns
- The country information relied on in decision-making regarding risk on return is generic and not specific enough to engage meaningfully with disability-based claims. There is also a risk that disability-based persecution is underplayed or dismissed as not amounting to persecution, when in fact the past treatment of disabled applicants can amount to a lifetime of severe stigma, control and abuse.
- Assessments of potential reintegration do not address the twin tests of safety and reasonableness in a holistic way which realistically evaluates the specific and additional needs of disabled applicants and the implications of their medical conditions or impairments and which places medical, welfare and social needs within the full country context. Return should only take place if it is clear that durable reintegration can be achieved without ongoing risks of victimisation and abuse.
- Despite the consensus within psychological and psychiatric research regarding the impact of trauma on memory and the barriers that trauma can create to disclosing a complete and consistent narrative, cases were dismissed due to perceived failures to respond to ‘memory test’ type questions. Even a single perceived discrepancy could result in a refusal, despite the lower standard of proof. Trauma linked with other conditions or impairments can make circumstances more challenging. Due to societal inequalities disabled people may be less included in decisions made about them, so may have access to less information than some other asylum applicants. Requiring a full ‘gold standard’ MLR in all such cases raises the standard of proof inappropriately and makes it difficult or impossible for many applicants to secure the necessary evidence.
- The asylum system is often a ‘one-size fits all’ process, without a clear identification processes early on to identify and accommodate any needs for reasonable adjustments. Where it later transpires that a reasonable adjustment would have been needed but was not in place, then a sympathetic and flexible approach is needed. A clear statement is required to recognise that in some cases further submissions should be accepted as amounting to a fresh claim.
- A person can be excluded from refugee protection under Articles 1F and 33(2) if they have committed a serious crime and are considered to be a threat to the community. However, it is important that people are not designated as a ‘threat to the community’ and excluded from refugee protection because of their disability or mental health presentation, for example where a person may engage in risky or reckless behaviour or be at risk of exploitation due to vulnerability. Treating disability as a basis for refusing protection is contrary to the spirit of the Refugee Convention which, at its core, defends the vulnerable from persecution and discrimination.
- Risks of persecution or serious harm due to disability risk being ‘down-graded’ as ‘medical’ or private life claims resulting in only weaker forms of protection being granted. The 10- year route to settlement can cause heightened risks of destitution, exploitation or overstaying for disabled people who may struggle to renew leave, need access to public funds and/or struggle with the uncertainty of frequent renewals. HBF has had chronically unwell clients being unable to renew their leave to remain on the 10-year route to settlement. It is therefore important that the ways that disability-based claims can require international protection are properly understood, so people who are entitled to status on this basis receive the correct level of protection.
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