The Refugee Status of Persons with Disabilities

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Persons with disabilities often face persecution. How does the 1951 Refugee Convention apply to them? In this first comprehensive study on the refugee definition for persons with disabilities, Stephanie Motz proposes a disability-specific approach to refugee status. The book provides a critical analysis of case law on refugee status determination focusing on four selected jurisdictions. Each chapter examines a different element of the refugee definition in light of the UN Convention on the Rights of Persons with Disabilities as well as international refugee law standards.

This book is of particular interest to refugee and disability law scholars and an essential tool for courts and tribunals, practitioners and state authorities in the application of the refugee definition to asylum claims of persons with disabilities.

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Stephanie A. Motz, BCL (Oxon), Dr. iur. (2018), University of Lucerne, is a Barrister and Visiting Lecturer in International Migration Law. She has worked with UNHCR, UN expert fora and NGOs. Stephanie A. Motz publishes in international refugee and disability law and litigates before the ECtHR and UN Committees.
Acknowledgment
Abbreviations and Acronyms
Table of Cases
Table of Legislation

I Introduction

II A Disability-Sensitive Interpretation of the Refugee Definition
A Introduction
B The Nature of the Refugee Definition and Its Interpretation
 1  The Flexibility of the Refugee Definition
 2  Competent Authorities for the Interpretation of the Refugee Convention
 3  Static and Evolutionary Approach to Interpretation
C Interpretation of the Refugee Definition According to the VCLT
 1  Applicability of the VCLT (Art. 4 VCLT)
 2  One Rule of Interpretation and Good Faith (Art. 31(1) VCLT)
 3  Ordinary Meaning (Art. 31(1) VCLT)
 4  Context (Art. 31(1) VCLT)
 5  Object and Purpose (Art. 31(1) VCLT)
 6  Contemporaneous Context (Art. 31(2) VCLT)
 7  Subsequent Agreement (Art. 31(3)(a) VCLT)
 8  Subsequent Practice (Art. 31(3)(b) VCLT)
 9  Relevant Rules of International Law Applicable between the Parties (Art. 31(3)(c) VCLT)
 10emsp; Supplementary Means of Interpretation (Art. 32 VCLT)
 11emsp; Treaty Authenticated in Two or More Languages (Art. 33 VCLT)
 12emsp; Conclusion
D An Evolutionary and Human Rights Approach to the Refugee Definition
 1  An Evolutionary Interpretation of the Refugee Convention
 2  The Human Rights Approach to the Refugee Definition
 3  The Relevance of the CRPD under the Human Rights Approach

III ‘Being Persecuted’: Serious Harm
A Introduction
B Disability-Specific Forms of Serious Harm
 1  Introduction
 2  Extrajudicial Killings and Ritual Murders
 3  Forced Institutionalisation and Forced Treatment
 4  Threats to the Physical and Moral Integrity and Security
 5  Denial of Medical Treatment and Health Care
 6  Denial of Work, an Adequate Standard of Living and Accessibility
 7  Denial of Inclusive Education
 8  Situations of War
 9  Denial of Legal Capacity
 10  Conclusion
C Disability-Specific Approach to Serious Harm in light of the VCLT
 1  Introduction
 2  Interpretation According to Art. 31 VCLT and Art. 32 VCLT (Drafting History)
 3  The Relevance of Human Rights to Persecution: Different Theories of the Human Rights Approach
 4  Interpretation According to Art. 32 VCLT (unhcr Practice and State Practice)
 5  Interpretation According to Art. 32 VCLT (International Human Rights Standards)
  5.1 Introduction
  5.2 Extrajudicial Killings and Ritual Murders
  5.3 Forced Institutionalisation and Forced Treatment
  5.4 Threats to the Physical and Moral Integrity and Security
  5.5 Right to Health Care and Medical Treatment
  5.6 Right to Work and to an Adequate Standard of Living and Accessibility
  5.7 Right to Inclusive Education and Children’s Rights
  5.8 Situations of War
  5.9 Denials of Legal Capacity
 6 Conclusion
D Conclusion on Serious Harm

IV Failure of State Protection
A Introduction
B The Level of State Protection
 1  Introduction
 2  The Level of State Protection in Cases with Disabilities
 3  The Level of State Protection and a Disability-Specific Approach
  3.1 Introduction
  3.2 Interpretation According to Arts. 31 and 32 VCLT (Drafting History)
  3.3 Interpretation According to Art. 32 VCLT (unhcr Practice and State Practice)
  3.4 Interpretation According to Art. 32 VCLT (International Human Rights Law)
  3.5 Conclusion on Disability-Specific Interpretation
 4  Conclusion on Sufficiency of State Protection
C Internal Protection Alternative
 1  Introduction
 2  Reasonableness of an Internal Protection Alternative for Persons with Disabilities
 3  Conclusion on Internal Protection Alternative
D Conclusion on the Level of State Protection

V Causal Nexus – ‘for Reasons of’
A Introduction
B Causal Nexus and Persecutory Intent
 1  Introduction
 2  Persecutory Intent Approach in Cases with Disabilities
 3  Persecutory Intent and a Disability-Specific Approach
 4  Conclusion on Persecutory Intent
C Causal Nexus, Persecutory Effect and Omissions
 1  Introduction
 2  The Bifurcated Approach
 3  Inability to Fulfil, Omissions and Discriminatory Effect in Cases of Persons with Disabilities
 4  Inability to Fulfil, Omissions, Discriminatory Effect and a Disability-Specific Approach
 5  Conclusion on Omissions and Discriminatory Effect
D Mixed Causes
 1  Introduction
 2  Mixed Causes in Cases of Persons with Disabilities
 3  Mixed Causes and a Disability-Specific Approach
 4  Conclusion on Mixed Causes
E Conclusion on Causal Link

VI Convention Ground ‘Particular Social Group’
A Introduction
B Persons with Disabilities and Membership of a ‘Particular Social Group’
 1 Introduction
 2 ‘Particular Social Group’ in Cases with Disabilities
 3 ‘Particular Social Group’ and a Disability-Specific Approach
C Conclusion on Persons with Disabilities as a ‘Particular Social Group’

VII Conclusion
A Summary
B Outlook

Bibliography
Index

Anyone interested in international refugee law, asylum law, international human rights law and disability law, both academics and practitioners.