Blog post by Nicolette Busuttil (Queen Mary University of London), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
Introduction
This blog post engages with the absence of meaningful reference to disability in the UK Government’s proposed New Plan for Immigration (the ‘Plan’) in light of the UK’s obligations and commitments under international law towards migrants with disabilities. Other contributions to this series have considered the discrete elements of the Plan and their incompatibility with human rights and refugee law obligations. Previous contributions illustrated its problematic nature for the fulfilment of human rights and refugee law obligations towards all migrants and refugees. In this blogpost, the absence of explicit engagement with disability in the Plan is highlighted as a significant human rights issue which undermines the UK’s obligations to protect, promote, and respect the rights of all persons with disabilities, including migrants and refugees. This is presented as particularly problematic in view of the UK’s obligations under the Convention on the Rights of Persons with Disabilities (CRPD), and its 2018 commitments through the UN Global Compact for Safe, Orderly and Regular Migration (the ‘Marrakesh Compact’) and Global Compact on Refugees (the ‘Refugee Compact’). In this context, reference to migrants and refugees with disabilities includes persons with all forms of disabilities, be they physical, intellectual or psychosocial (Article 1 CRPD). Persons with psychosocial disabilities is the preferred term for those elsewhere referred to as persons with mental health conditions.
A Human Rights-Based Approach to Disability
The CRPD is lauded for its adoption of a ‘human rights’ or ‘social-contextual’ model of disability at the level of international human rights law. In this formulation, disability is that which ensues when externally imposed barriers, including physical and attitudinal barriers, interact with individual impairment to preclude persons with disabilities from full and effective participation in society on an equal basis with others (see Preamble Recital (e) and Article 1 CRPD). Unlike previous conceptualisations of disability, which viewed disability as a deficit located within the individual who bore sole responsibility for the (in)effective enjoyment of rights, the CRPD draws upon the advances made through disability theory and activism by disability rights advocates to shift attention onto the role of the State in disabling the individual. States are enjoined to dismantle those barriers which interact with individual impairment to produce disability. They are also obliged to provide the support required for persons with disabilities to enjoy their rights on an equal basis with others, in acknowledgment that this requires States to take specific action. The CRPD shifts the attention from individual responsibility for the enjoyment of rights to the State’s obligations of support, in acknowledgment that laws, policies, and processes also need to adapt to take into account the experience of disability.
The Absence of Disability in the Plan
The Plan does not make any reference to disability. The closest possible reference to disability in the document is couched in discourse of ‘vulnerability’. We are told that the Government is committed to protecting children and vulnerable people (page 22), that the UK’s previous resettlement schemes are ‘specifically targeted at the most vulnerable’ (page 13), and that there is a need to ‘re-wire the asylum system to ensure that it properly serves vulnerable people in need of protection’ (page 24). Women and children are listed as being among those ‘other vulnerable people’ who should not be pushed aside when it comes to refugee protection (page 19).
If these statements are to be taken in good faith, and assuming that the UK Government is committed to protecting the rights of all, especially those who are in situations of vulnerability, disability is even more conspicuous by its absence. Migrants and refugees with disabilities often constitute ‘forgotten refugees’. Persons with disabilities on the move are often at risk of being abandoned during flight, as they are liable to being considered ‘burdensome’ on the difficult journeys ahead. Practice in resettlement programmes indicates that refugees with disabilities can face additional barriers and are not always given equitable access on the same basis as refugees without disabilities. The absence of data about refugees with disabilities is an issue that points towards the existence of a much larger problem regarding the invisibility of persons with disabilities in immigration and asylum processes.
As such, while references to vulnerability can be problematic and serve to entrench stereotypical presentations of the person with disabilities as an object of charity rather than as a rights-holder, it is equally the case that migrants with disabilities are often placed in situations of vulnerability to grave human rights abuses. At a minimum, this requires their inclusion as one of those ‘vulnerable’ groups to whom the Plan should accord attention. Yet, rather than set out how refugees with disabilities can be effectively included within resettlement processes or provided with support once they seek asylum, with a view to addressing the barriers they encounter, the Plan contemplates the opposite. It purports to employ policies which perpetuate precarity, among other things through creating temporary forms of status, limiting access to support for those who do manage to arrive to the UK, and accommodating them within designated asylum processing centres, which in other contexts have raised serious concerns about their compatibility with fundamental rights considerations relating to the prohibition of ill-treatment. It does so, even in the face of documented evidence of the detrimental impact on mental health status which, while problematic for all, disproportionately affects those with pre-existing mental healthcare needs.
Instead, disability is mentioned only in the context of the last section of the Stakeholder Questionnaire, which accompanies the Plan and forms part of the Home Office’s consultation process. The relevant section is entitled ‘Public Sector Equality Duty (and other general questions)’. Question 42 presents the list of protected characteristics under the Equalities Act, which include disability, and asks respondents to select ‘any areas [from Chapters 2-8] where you feel intended reforms present disproportionate impacts on individuals protected by the Equalities Act.’ Question 43 asks respondents to indicate ‘which, if any, of the intended reforms are likely to be the greatest potential equalities considerations against the listed protected characteristics?’ In both cases, respondents are asked to expand on their answer, provide data (where applicable), further information, and detailed reasons.
The Public Sector Equality Duty referred to under section 149 of the Equality Act 2010 (the Act) requires public bodies to have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act; to advance equality of opportunity between those who share a relevant protected characteristic and those who do not; and to foster good relations between these two categories. An exemption is contemplated for immigration and nationality functions in relation to the duty to advance equality of opportunity between persons with protected characteristics and those without protected characteristics. However, the exemption is restricted to the protected characteristics of age, race, religion or belief and does not apply to disability.
Visibility as a Human Rights Issue
It is beyond the scope of this blogpost to detail the requirements of the Public Sector Equality duty in detail. However, it is immediately apparent that the obligation is not discharged through the inclusion of two questions on an open consultation platform which ask for input on the impact of a Plan that does not accord any attention to the specific needs of persons with disabilities. This limited interaction with disability and engagement with the needs of migrants and refugees with disabilities leaves much to be desired and emerges as a key human rights issue. This is even more apparent when contextualised against the UK’s obligations under international human rights law, through the adoption of the CRPD and the Marrakesh and Refugee Compacts, which emphasise the need to mainstream disability in all actions.
Both Compacts affirm the need for a disability dimension in the interpretation and application of substantive human rights obligations and in the design of laws and policies which concern migrants and refugees. The Refugee Compact highlights how its programme of action is underpinned by a ‘strong partnership and participatory approach involving refugees and host communities, as well as … considerations including: … persons with disabilities’ (paragraph 13). It prioritises the formulation of evidence-based responses, which include the collection, analysis, and sharing of disability disaggregated data on refugees. Moreover, measures contemplated under the Refugee Compact are to ‘take into account, meaningfully engage and seek input from those with diverse needs and potential vulnerabilities, […] including persons with disabilities’ (paragraph 51). From a practical perspective, the Refugee Compact refers to the need for disability-sensitive immediate reception arrangements in the context of large-scale arrivals (paragraph 54). It acknowledges how, as persons with specific needs, refugees with disabilities might require additional resources and targeted assistance (paragraph 59). Additional consideration is made in the context of education provision for children with disabilities (paragraph 69).
The Marrakesh Compact complements this attention to disability from a rights-based perspective. States acknowledge that they have a heightened duty of support towards migrants in vulnerable situations, which includes migrants with disabilities. Under Objective 7, States commit ‘to respond to the needs of migrants who face situations of vulnerability, […] by assisting them and protecting their human rights’. Among the actions to be taken to realise this commitment, States are to:
‘establish comprehensive policies and develop partnerships that provide migrants in a situation of vulnerability, regardless of migration status, with necessary support at all stages of migration, through identification and assistance, as well as protection of their human rights, in particular in cases related to … persons with disabilities’ (paragraph 23(b)).
Disability is explicitly acknowledged under Objective 15, where States commit to ensure that all migrants, regardless of their migration status, can exercise their human rights through safe access to basic services. This acknowledges the need to establish and strengthen holistic and easily accessible service points, where information on basic services is provided in a ‘disability-responsive’ manner (paragraph 31(c)).
Overall, both Compacts affirm the approach which underlies the reconceptualisation of States’ obligations towards persons with disabilities in the CRPD, that is, the human rights model of disability. In the CRPD, the general obligations incumbent on States Parties include an undertaking to adopt all appropriate legislative, administrative and other measures for the implementation of CRPD rights (Article 4(1)(a) CRPD) and a duty to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes (Article 4(1)(c)). This mainstreaming obligation is further reflected in the CRPD’s substantive provisions which reformulate pre-existing human rights obligations to tailor them to the experience of disability (see, for example, how the right to be free from torture and ill-treatment includes an explicit prohibition on medical and scientific experimentation without consent as ill-treatment, which disproportionately affect persons with disabilities).
As a State Party to the CRPD, the UK is under an obligation to secure the CRPD’s overall object and purpose, which is to secure the full and effective enjoyment of all rights by all persons with disabilities (Article 1 CRPD) and implement its obligations. At the same time, the UK maintains a reservation to the CRPD’s Article 18 on liberty of movement for the purposes of immigration control and ‘reserves the right to apply such legislation, insofar as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right […] to enter and remain in the United Kingdom, […]’. The validity of this reservation has been questioned, given its broad formulation. In its Concluding Observations reviewing the UK’s implementation of the CRPD, the CRPD Committee expressed concern at the reservation, which had been retained following a 2011 review, and recommended it be withdrawn. The call to withdraw the reservation has come from within civil society organisations which have long highlighted how, among its many problematic features, it ‘limits accountability for immigration policy and decision making’. The reservation’s questionable conformity with international law was foreshadowed by the Joint Committee on Human Rights which pointed out how ‘the Home Office is seeking “catch-all” protection for any policy relating to immigration and nationality against the full application of the rights recognised by the Convention’, since a literal interpretation meant the CRPD’s protection could be disapplied towards those subject to immigration control.
A Disability-Sensitive Way Forward
Beyond arguments around the invalidity of the reservation, it is clearly the case that the UK is not absolved of the entirety of its obligations towards persons with disabilities when these happen to be refugees and migrants. So, what would engaging with disability explicitly look like?
In the context of asylum determination, a recent report by the Helen Bamber Foundation highlights the interrelationship between disability and the Refugee Convention. It follows Motz’s exposition of a disability-specific application of the refugee definition.
In the context of reception and entitlement to services, the CRPD informs the way forward as the minimum binding standard. The CRPD-Committee has repeatedly affirmed (see here) that CRPD rights apply to all, regardless of migration status. In its Concluding Observations on States affected by the ‘migration crisis’ at the southern borders of the EU, including Italy and Malta, and the EU’s response, it relied on Article 11 CRPD to draw attention to States’ obligations towards migrants and refugees. It has done the same in the context of States’ treatment of migrants and refugees outside of times of ‘crisis’ (e.g., Luxembourg). Article 11 CRPD articulates States’ obligations in situations of risk and humanitarian emergencies and obliges them to ‘take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk …’ (Article 11 CRPD, see Motz, for commentary). Among these necessary measures, the CRPD-Committee highlights the challenges encountered particularly by migrants and refugees with mental healthcare needs in accessing appropriate mental health support and rehabilitation. It decried the continued detention of migrants with disabilities in conditions which provide neither appropriate support nor reasonable accommodation, and the inaccessibility of status-determination procedures which do not engage with the needs of persons with disabilities.
The UN Human Rights bodies have provided greater clarification on what a disability-sensitive response to migrants and refugees could look like. In a joint statement on the adoption of the New York Declaration, the CRPD Committee and the Committee on the Protection of the Rights of Migrant workers noted that while ‘persons with disabilities comprise a significant minority of migrants and refugees, … there is little information available on their situation.’ In particular, to meet their obligations under Article 11 CRPD, States must institute formal identification procedures to ensure that migrants with disabilities can benefit from the protection afforded to them. These require ‘formally, legally defined procedures’ to be in place to ensure accessibility in reception and closed centres, which are to act as the gateway to ‘psychosocial and legal counselling, support and rehabilitation.’ In addition, States are to improve the access of asylum seekers with disabilities to facilities and information and provide adequate support. Reception conditions must protect their physical and mental wellbeing by providing an adequate standard of living. Moreover, access to support services must go beyond the provision of emergency care and include the provision of appropriate support.
Conclusion
Just as European Court of Human Rights has acknowledged how States’ failure to provide for migrants and refugees places them in situations of vulnerability, the CRPD focuses attention on the role of the State in providing support to migrants and refugees with disabilities. This is framed within a discourse of entitlement to rights rather than charity and illustrates how the UK’s obligations towards migrants and refugees with disabilities require more than their integration within generic proposals that fail to engage with their experience.
The CRPD’s adoption as a dedicated, binding treaty catering to the needs of persons with disabilities followed recognition that the historic invisibility of persons with disabilities within international human rights law instruments had led to a situation where ‘existing protections [were] either not applied or applied with much less rigour’. The Refugee and Marrakesh Compacts similarly impel the mainstreaming of a disability dimension in migration and asylum law, policies, and processes.
The absence of meaningful engagement with disability in the Plan risks entrenching the long-standing invisibility of migrants and refugees with disabilities. International human rights law and commitments acknowledge that States owe specific obligations towards persons with disabilities, including duties of support and their explicit consideration. Yet, the proposals belie the Plan’s stated aim to achieve ‘an asylum system that helps the most vulnerable’ and, instead, risk placing those entitled to support in situations of increased vulnerability.
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