Report by Jennifer Blair and David Neale with valuable and practical guidance for practitioners, judges and decision-makers
New Helen Bamber Foundation report provides a comprehensive overview of disability and the Refugee Convention
27 April 2021
The Helen Bamber Foundation today released a significant new report examining disability as a basis for refugee protection and accessibility and inclusion in the asylum process.
You can download the 71-page report here. It was authored by Jennifer Blair of the Helen Bamber Foundation (and No5 Chambers) and David Neale from Garden Court Chambers with the assistance of researcher Jenni Whitaker.
The report draws together information regarding the interaction between disability and claims under the 1951 Refugee Convention and also briefly looks at subsidiary forms of legal protection.
The authors explain that the report has been prepared based on legal and clinical experience within England and Wales in particular, but may be of wider relevance to those working to apply the Refugee Convention in other jurisdictions.
In the report's foreword, Sir Nicolas Bratza, a former President of the European Court of Human Rights, notes: "[T]he principal focus of the paper is the protection of the disabled when making asylum claims under the Refugee Convention. While there exists a wealth of published material on the nature and scope of the protection granted by the Refugee Convention to those facing the risk of persecution, less attention has been paid to the special challenges faced by disabled persons when making claims under that Convention or to the legal standards required to ensure that such protection is effective and offers sufficient safeguards to those suffering from physical, mental, social or other disabilities. This paper, prepared by three experts in the field, with additional advice from doctors, clinical psychologists, lawyers and counter-trafficking experts, seeks to fill that gap by providing an overview of the interrelationship between disability and international protection claims."
The report examines the particular challenges, both substantive and procedural, confronting those with disabilities when making asylum claims. Asylum practitioners, judges and decision-makers will find it offers plenty of useful and practical guidance. Case law is cited throughout.
Overall, the authors find that disability is an area which is markedly under-documented compared with some other equalities issues in asylum procedure and decision-making, which has potentially very serious implications for justice.
They conclude: "There is a need for an over-arching framework on disability and international protection, for training of interviewers, decision-makers and Home Office lawyers on these issues and for country of origin information and case law to be reviewed with a disability rights approach in mind. One of the most robustly documented areas of concern is the approach to credibility often adopted by decision-makers, which focusses on a person being able to give a consistent, plausible, coherent and complete account of their history and fears on return, despite this being clinically impossible for some people seeking asylum. There is a need to revisit and emphasise the lower standard of proof for protection claims, to ensure disabled people seeking asylum are not held to an impossible or unrealistic standard of evidence and ability to articulate a claim in full."