Understanding Disability Under the Convention on the Rights of Persons With Disabilities and Its Impact on International Refugee and Asylum Law

• Publication year: 2014
• Citation: Vol. 42 No. 3

UNDERSTANDING DISABILITY UNDER THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND ITS IMPACT ON INTERNATIONAL REFUGEE AND ASYLUM LAW

Vandana Peterson^*

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TABLE OF CONTENTS

I. USING A HUMAN RIGHTS FRAMEWORK TO ADJUDICATE ASYLUM CLAIMS ............................................................................690

A. Relationship between International Human Rights Law and International Refugee Law................................................692
B. The CRPD as a Complement to the CAT in Defensive Asylum Claims or Withholding of Removal..............................695
C. Situating Refugee and Asylum Law in a Human Rights Framework that Includes the CRPD........................................699

II. THE HUMAN RIGHTS AND SOCIAL APPROACHES TO UNDERSTANDING "DISABILITY" UNDER THE CRPD ......................701

A. The Evolution of Modern Disability Studies............................701
B. Different Approaches to Understanding Disability..................702
C. Using the Various Approaches to Disability Studies in Conjunction with the CRPD.....................................................705

III. SHOWING WELL-FOUNDED FEAR USING THE CRPD .....................706

A. Showing Well-Founded Fear....................................................707

IV. THE CRPD'S HUMAN RIGHTS APPROACH TO DISABILITY FACILITATES SHOWING PERSECUTION ...........................................710

A. Persecution as Generally Understood in Refugee Law............710

1. Adjudication of Asylum Cases on the Basis of Gender: A Potential Model for Adjudicating Claims on the Basis of Disability..............................................................712

B. Persecution in Disability Cases...............................................713

1. Showing Serious Harm in a Disability Case......................713
2. Cumulative Discrimination................................................716

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3. Failure of State Protection/Reasonable Accommodation and the Challenge of Budgetary Deference...........................................................................718

C. Article 15 of the CRPD and States' Non-refoulement Obligations...............................................................................722
D. The Role of "Reasonable Accommodation" in Identifying Persecution...............................................................................724

V. PERSONS WITH DISABILITIES USING THE CRPD CLEARLY COMPRISE A PARTICULAR SOCIAL GROUP UNDER THE REFUGEE DEFINITION .....................................................................729

A. Analyzing "Particular Social Group" Under Evolving Theories of International Refugee Law....................................729
B. A Closer Look at the Social Visibility Test and Its Impact on Applicants With Disabilities................................................734
C. Using the CRPD's Social Model of Defining Disability to Show Membership in a "Particular Social Group".................738

1. Historic Debate..................................................................738
2. Showing Nexus Between Persecution and Membership in a Particular Social Group.............................................740

VI. CONCLUSION ...................................................................................741

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Despite some of the most comprehensive legislation protecting the rights of Americans with disabilities, in 2012 the United States Senate voted against the ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).¹ The CRPD would have made explicit many new rights and freedoms for persons with disabilities around the world. However, disabilities, and in particularly mental health, have been a focus of discussion amongst policymakers and the general public in the United States and elsewhere, as relates to gun control and individuals with mental health disorders.² This Article argues that the evolving definition of disability should enable persons with disabilities (both physical and mental), who were unable to do so before, to seek asylum and/or refugee status under the 1951 Refugee Convention.³

Since its inception in 1951, the Refugee Convention's definition of what constitutes refugee status⁴ has been the subject of debate and varying interpretation. Most common law jurisdictions have looked to international human rights law either as a comprehensive framework to adjudicate asylum claims or as an interpretive tool.

To gain refugee status, an applicant must show not only that he or she is outside their country of nationality but also has a well-founded fear of persecution due to one of five enumerated grounds (race, religion, nationality, political opinion or membership in a particular social group).

Disabled applicants have struggled with (1) demonstrating that their fear is well-founded under both objective and subjective criteria, (2) proving that the conduct at issue rises to the level of "persecution"; and (3) linking their fear of persecution to their membership in a particular social group.

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This Article examines the human rights and social approaches to understanding "disability" and argues that the CRPD supports both approaches, which in turn facilitate a showing of persecution on grounds of membership in a particular social group. While so-called socio-economic rights have rarely been the basis of successful applications for asylum, the CRPD and the evolving definition of disability shifts the focus from more traditionally acceptable bases for asylum such as torture and the physical threat to life, and enables applicants to make claims based on deprivation of other basic human rights. Although some of the challenges faced by applicants with disabilities, will be mitigated by the CRPD and its more inclusive approaches to understanding disability, relying on the CRPD will not open the floodgates and greatly increase the number of asylum seekers with disabilities.

Part I establishes the utility of a human rights framework and the CRPD for adjudicating asylum claims. Part II shows how the CRPD has expanded the definitional constraints of "disability," primarily through a human rights and social approach to understanding the concept. Part III summarizes new proposals to show the objective and subjective elements of well-founded fear. Part IV argues that under the CRPD's human rights model of disability, persons with disabilities will have a lower burden in showing persecution. Finally, Part V demonstrates how the CRPD's social approach to understanding disability helps to show that persons with disability comprise a "particular social group," in contemporary asylum adjudication.

I. USING A HUMAN RIGHTS FRAMEWORK TO ADJUDICATE ASYLUM CLAIMS

[M]en walked around half-naked, feces littered a yard, bedsheets were missing, the smell of urine permeated a day room, bathroom faucets malfunctioned and patients lay sprawled on several patches of grass . . . elderly women sat tied to wheelchairs, staff members hustled to clean soiled floors as investigators moved through, and patients and their caretakers could not fully explain how or why they were institutionalized. A trembling blind woman said she had been raped by a staff member—who officials said was dismissed during a criminal investigation—and would feel safer on the streets. "I don't have any hope," she said. "I don't have a nickel to get out of this place."⁵

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A New York Times reporter wrote of these deplorable findings at a Mexican mental health institution in November 2010.⁶ Two years later, in November 2012, the same reporter wrote of similar violations in Guatemala:

Children and adults were abused at the hospital, basic medical care was denied and women were subjected to sex trafficking, often controlled by guards from the national police and gang members given access to the hospital from an adjacent prison . . . . Patients lay about on the ground in dirty or tattered clothing, while others were tied to chairs and beds in dank, dreary buildings—freshly scrubbed for the inspection, it appeared, by the suffocating scent of bleach—or wandered around with no purpose or attention . . . A woman locked in an isolation cell moaned in confusion, and staff members reported shortages of medicine and inconsistent care by doctors.⁷

Not much appears to have changed in the past two years, or even the past ten years when reporters found similar conditions in a Mexican asylum.⁸

Such blatant violations of fundamental human rights are a primary concern of international refugee law, whose main purpose is to protect individuals who are vulnerable to human rights violations and are not adequately protected by his/her own government.⁹ The definition of refugee is a person who "owing to a 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 to or, owing to such fear, is unwilling to avail himself of the

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protection of that country."¹⁰ Professor James Hathaway breaks down this definition into practical terms. In practice, a person seeking refugee status must demonstrate that (1) he/she is outside his/her country of origin; (2) he/she has a well-founded fear, which involves both an objective and subjective determination of that fear; (3) the fear is of being persecuted (i.e., experiencing sufficiently serious harm); and (4) the persecution is primarily due to his/her race, religion, nationality, political opinion or for belonging to a particular social group.¹¹ These latter three elements are often difficult for refugees to prove, and the high burden of proof means that many potentially valid claims are either denied or subjected to excessive scrutiny.¹² Applying the UN Convention on Rights of Persons with Disabilities (CRPD) in framing the claim for refugee status alleviates this burden.

A....