REFUGEE STATUS DETERMINATION FOR “THE INVISIBLE”: EXPERIENCES OF ELIGABILITY OFFICERS INTERVIEWING ASYLUM
SEEKERS WITH INTELLECTUAL DISABILITIES
Master Thesis in the Master Program
International Migration and Intercultural Relations (IMIB): Erasmus Mundus Master in International Migration and Social
Cohesion (MISOCO) at the University of Osnabrück
By
Alexandria Tadman (Matrikel-Nr. 965784)
Supervisors:
Prof. Dr. Helen Schwenken (University of Osnabrück) Dr. Sébastien Chauvin (University of Amsterdam)
Research Professor Elzbieta M. Gozdziak, Ph.D. (Georgetown University)
Table of Contents
1. INTRODUCTION...1
1.1 “Gather evidence and cope with the bureaucratic process” ...2
1.2 Research Question ...4
1.3 Why this research was carried out ...5
1.4 Organization of the thesis ...6
2. CONTEXT AND BACKGROUND ...7
2.1 Disability as a “new” issue in protection ...7
2.2 Definitions...7
2.3 Relevant manuals, Conventions and resource kits ...10
1. UNHCR Need to Know Guidance: Working with Persons with Disabilities in Forced Displacement ...11
2. UN Convention on the Rights of Persons with Disabilities ...11
3. UNHCR ExCom Conclusions (12 October 2010) ...12
4. Women’s Refugee Commission Resource Kit for Field Workers ...13
3. CONCEPTUAL FRAMEWORK AND LITERATURE REVIEW ...14
3.1 Part 1: Refugee status determination ...14
a) Refugee definition and refugee status determination eligibility officers ...14
b) Persecution and protection in the refugee definition ...18
3.2 Labeling and categorization ...19
3.3 Credibility ...22
a) Burden of proof ...23
b) Benefit of the doubt ...24
3.4 Part 2: Asylum seekers and refugee with intellectual disabilities ...25
a) Disability and the refugee definition ...25
b) Membership of a particular social group ...26
3.5 Protection ...27
a) Disability as a barrier to protection ...27
3.6 Categorization and identification ...29
3.7 Credibility ...31
3.8 Visibility and vulnerability ...31
a) Object versus “holder of rights” ...32
b) Defining vulnerability...32
c) Disability as a status that renders people vulnerable ...33
d) “Vulnerable group” ...34
4. WORKING AS AN ELIGABILITY OFFICER: TRAINING, CHALLENGES AND OVERCOMING OBSTACLES ...36
a) Contextual information ...37
4.1 Reflective essays ...37
4.2 Influential case ...39
4.3 Summary of findings from RSD first instance interview transcripts and assessments ...43
5. METHODOLOGY ...46
5.1 Data collection and research sample ...47
5.2 Access to participants ...48
5.3 Interview ...49
5.4 Data analysis ...50
5.5 Limitations ...51
5.6 Ethical considerations ...53
6. DATA PRESENTATION AND ANALYSIS ...54
Figure 1: Code Groups and Frequency ...54
a) Structure ...55
6.1 Eligibility Officer Readiness...56
a) Formal training ...55
b) Training related to ASID ...60
c) Preparedness ...63
d) Individualized approach ...64
6.2 Formal processes ...65
a) Medical category and registration ...65
b) The identification process and credibility ...67
6.3 Access ...69
a) Lack of protection ...70
b) Disability visibility ...72
6.4 Health ...72
a) Use of medical documents ...73
6.5 Portrayed as vulnerable ...75
a) Trauma, suffering and intellectual disabilities ...76
7. CONCLUSION ...79
7.1 Discussion ...79
a) Training ...79
b) Categorization, labeling and identification ...79
c) Medical approach ...80
d) Connection to the literature ...81
7.2 Recommendations ...82
a) Establishing a network ...82
b) Creating discussion groups ...83
c) Next steps ...83
Preface
My professional, academic and personal experiences have led me both to and through this research project and were guided by the ongoing support from my friends and family. This is paired with those who doubted the relevance of this topic, which was the result of an inability to acknowledge the obstacles faced by asylum seekers with intellectual disabilities, which only confirmed this population’s invisibility in the field of forced migration. I appreciate these criticisms as their doubts provided me with further motivation.
I want to thank the eligibility officers for their willingness to participate in this research project and for sharing their experiences. Finally, I want to thank those who met with me to share their knowledge on various topics, as their expertise brought clarity and a platform for establishing a network of likeminded individuals with a common goal.
List of Abbreviations
Asylum Seekers with Intellectual Disabilities [ASID] Classification of Intellectual Disabilities [CID] Country of Origin [COO]
Country of Origin Information [COI] Eligibility Officer [EO]
Internally Displaced Persons [IDP]
Lesbian, Gay, Bisexual, Transgendered, Intersex [LGBTI] Learning Program [LP]
Program Registration Software [proGres] Refugee Status Determination [RSD]
Sexual and Gender Based Violence [SGBV] United Nations [UN]
United Nations Convention on the Rights of Persons with Disabilities [CRPD] UNHCR Executive Committee [ExCom]
United Nations High Commissioner for Refugees [UNHCR] Women’s Refugee Commission [WRC]
World Health Organization [WHO] United Nations Volunteer [UNV] Implementing Partner [IP]
Country of Asylum [COA] Unaccompanied Minor [UM] Resettlement Referral Form [RRF]
1. Introduction
Uprooted, displaced and forced into a position of instability and limbo, asylum seekers and refugees are subjected to various procedural formalities in order to receive protection once they arrive in a potential host country. For any human being the process of surviving conflict, only to arrive in another country for protection would be life changing. What can be said for those who are not only labeled as refugees, but also further marginalized as a result of having an intellectual disability? Globally, asylum seekers and refugees with intellectual disabilities are referred to as “the invisible” (Straimer, 2010). Their invisibility is further perpetuated, as pressures to conform to the already existing asylum structures appear to increase. The refugee status determination (RSD) process is essential to the forced migrant experience, yet problems exist for asylum seekers with intellectual disabilities (ASID) at each step, from presumed medical diagnosis based on physical appearance at the point of reception to assessments based solely on general country of origin information (COI). Without specific categorization and recognition in a legal process that relies on this type of assessment to grant refugee status, how is this managed in practice and what does it mean for accessing protection? Without adequate processes to identify persons with intellectual disabilities and the failure of international organizations to establish a formal category for this population, the eligibility officers (EO)1 responsible for their assessments are placed in a risky position of using their own pre-determined notions of the population to determine their status and ultimately the protection they will receive.
1“The Assistant RSD Officer is a member of the RSD team. The Assistant RSD Officer is responsible for conducting RSD interviews to determine eligibility for refugee status, undertaking COI and other research related to the claim, as required, and drafting RSD assessments” (UNHCR, 2016).
1.1 “Gather evidence and cope with the bureaucratic process”2
In January 2013, I was exposed to the realities associated with RSD in providing protection for ASID. At the time, I was working as an RSD EO for the United Nations High Commissioner for Refugees (UNHCR) in New Delhi, India. Conducting between four to six interviews per week with asylum seekers from various countries, namely: Afghanistan, Burma, Iraq, Syria, Democratic Republic of the Congo and Eritrea. I was responsible for documenting an applicant’s claim and preparing detailed, well argued and researched assessments to be submitted for review. It became impossible to separate my experience working as a UNHCR EO from the focus of this thesis project. Working as an EO acted as a foundation for my curiosities within forced migration to flourish, ultimately forming the puzzle I am now working to piece together. It is also important to highlight my experience as a Support Worker for youth and adults with disabilities. Throughout my life I have worked closely with this population, in both formal and informal settings. Working in these capacities prior to my position as an EO allowed me to use these already established skills and understanding and apply this to my work with UNHCR. Without this foundation, I would not have been adequately prepared to conduct interviews with ASID. Witnessing the stress experienced by my fellow EOs when handed a case file of an ASID triggered a curiosity within me to uncover just how deeply rooted this lack of understanding and confidence to support this population was. Chapter 4 provides a detailed participant observation of my experience as an EO, using my transcripts and assessments, as well as content from personal reflective essays written over the six month period to support and strengthen this thesis project.
After conducting initial research about ASID during my time as an EO, I was surprised and disappointed in the lack of literature pertaining to the issues faced by this population. There appeared to be some level of recognition, reference is made ASID and how to manage their needs from a legal perspective, but many gaps exist. Official documents do not offer guidance on how to provide adequate protection to this population and there appears to be little to no debate or advocacy for the rights of asylum seekers with disabilities. There are criticisms of the EOs ability to interpret the refugee definition in practice, but no information on how EOs conduct interviews with various populations and what training is provided to do so. The lack of research and exposure for ASID in forced migration is an important issue, as this exposure is directly related to how this population will receive protection. If this population becomes more invisible, organizations such as UNHCR will lose touch with them completely and this invisibility will breed greater vulnerability.
It is important to acknowledge that my experience as an EO is what provided me with the tools to think critically, ask questions and demand more from the environment that I was working in. However, the background of this thesis project does not stem solely from my work as an EO, but is paired with ten semi-structured Skype interviews conducted with both State and UNHCR EOs from around the world.3 The key actors involved in this research are State and UNHCR RSD EOs from Europe, North America, South Asia and the Middle East. This research seeks to uncover the experience of EOs in conducting interviews with ASID, investigating the training they have received and their personal, academic and professional capabilities outside of being an EO and how this
3 Here, state EO refers to an EO hired by the state government to conduct RSD, meaning they are employed
contributes to their experience. From this, the goal is to establish a better understanding of ASID invisibility and vulnerabilities and to see how well-equipped the EOs are in responding and providing support to this population.
1.2 Research question
The RSD process for ASID renders them officially invisible due to the inexistence of any formal categorization of their vulnerability. In this respect, this study addresses the existing gap in the literature on the experience of EOs interviewing ASID and how this contributes to their categorization. This study aims to respond to the following research questions:
(1) Are EOs provided with adequate training to conduct interviews with ASID and does a lack of training contribute to invisibility?
(2) Do EOs classify ASID as a member of a specific vulnerable group? If so, how is this identification and categorization done in practice?
(3) What supports and resources/tools exist for providing protection to ASID, are EOs aware of these resources/tools, and if so, how are they used?
1.3 Working Hypotheses
This study is based on three main working hypotheses:
(1) The existing RSD literature fails to explain the relationship between the EO experience and its influence on the visibility of ASID. This relationship acts as the foundation for establishing protection needs and the inability to recognize this association perpetuates asylum seeker invisibility. Therefore, there is a need to make these connections in order to narrow the gap between ASID and the RSD process.
(2) Although not currently present in the existing literature, the EO experience is connected to both the practical application of conducting interviews and preparing assessments to the legal frameworks in which they operate. Therefore, the EO experience should be analyzed through their perspectives, instead of analysing only the invisibility of ASID from a solely legal or medical position. Several other factors such as EO training, prior work experience and availability of and access to resources must be considered. Of great importance will be EO readiness to conduct interviews with ASID and how they categorize this population based on this readiness.
(3) The EO experience is connected to the invisibility of ASID, as their visibility is dependent on the categorization, labelling and interpretation of legal frameworks conducted by EOs. The nature of this association lies in EO readiness, which is reliant on the mechanisms that govern RSD.
1.4 Why this research was carried out
In order to address this gap invisibility and vulnerability are used as the conceptual framework. Without adequate identification and recognition, ASID will continue to exist outside of the protection mandates and legal frameworks governing forced migration. The current academic climate for ASID during the RSD process is bleak with only a handful of academics and practitioners contributing to the overall understanding of how this population interacts with this legal process through the actors constructing it, namely UNHCR and state governments (Crock, Ernst & McCallum, 2013; Smith-Khan, Crock, Saul & McCallum, 2014; Straimer, 2010; Mirza, 2011; Kanter & Dadey, 2000). The role of EOs throughout the RSD process is essential yet this vital role is rarely recognized on an individual level, documenting their experience and how this translates in practice.
1.5 Organization of the thesis
This thesis is organized into seven chapters with various subsections. Chapter 2 presents the context and background in order to better understand disability as a “new” issue in protection and to clarify how various terms used throughout this thesis are defined. Relevant manuals, Conventions and resource kits pertaining to asylum seekers and refugees with disabilities are listed in part 2 of Chapter 2, along with a brief discussion on their purpose and application in practice. Chapter 3 provides the conceptual framework and a review of the already existing literature, separated into two parts. Part 1 presents a review of the RSD literature, identifying the refugee Convention definition, labeling, categorization and credibility. Part 2 follows a similar structure using literature pertaining to refugees with disabilities. The final section highlights relevant literature on visibility and vulnerability. These three chapters lay the foundation, providing the reader with the tools to navigate through Chapters 4-6. Chapter 4 contains the participant observation I conducted in 2013. Providing an in depth contextual foundation from my own experience as an EO, contributing to how this research project came about. From there, Chapter 5 provides a detailed research methodology in order to establish a clear structure for Chapter 6, which is the data presentation and analysis of this study. Finally, Chapter 7 includes a discussion and recommendations for potential next steps for this study, connecting the findings to the research question and addressing the proposed hypotheses.
2. Context and background
2.1 Disability as a “new” issue in protection
Finding information related ASID and UNHCR position in terms of the protection provided to this population proved to be difficult. UNHCR, the agency “Holding the strongest protection manage in the refugee regime” (Straimer, 2010:14) has focused on traditional protection groups, which is one of leading reasons as to why disability has received less attention. Labeled as a “new” issue, disability has little exposure in the agency, when compared to other vulnerable groups like women and children. Straimers (2010) research includes a comment from a UNHCR official stating “Disability is an issue relatively new to the consciousness of the organization” (p.14). Straimers work is essential for this thesis, as it provides a foundation for analysis and comparison. One of the consequences of this lack of recognition is that the specific protection needs of the population are rarely recognized. The growing use of databases for collecting information related to persons with disabilities could mean that this “new” issue of disability is gaining some traction in practice (Smith-Khan et al., 2014). The database includes a section to collect personal information on persons of concern, where a general “disability” category is included. Straimer and Smith-Khan are arguably the most influential in terms of applying a legal perspective to the RSD process and the role of ASID. However, there are still questions that need to be answered; answers this thesis hopes to provide.
2.2 Definitions
The reader should be aware of the connection between the experience of EOs and the role of invisibility and vulnerability for ASID. In order to make these connections,
key terms must be defined and situated in a coherent manner. Chapter 3 defines these terms using the literature and highlights the debates surrounding their application and how they are interpreted in practice. The definitions below act as an introduction to the terms, establishing a point of reference for the reader.
Defining disability is a complex and difficult task, as it is a multilayered term that can be interpreted from a medical, political, or social perspective, to name a few.4 For the purpose of this thesis, it is important to emphasize Kaplans (2000) “disability model” because it stems from the disability rights and independent living movements and regards disability as a normal aspect of life, not as a deviance, rejecting the notion that persons with disabilities are in some way “defective”. The disability model recognizes social discrimination as the most significant issues faced by persons with disabilities and as the cause of many of the problems that are regarded as intrinsic to the disability under the other models.
This thesis is concerned with the experience of EOs, mainly from UNHCR, as a result it is important to highlight the organizations definition of disability.
The United Nations (UN) Convention on the Rights of Persons with Disabilities defines persons with disabilities as “those who have long‐term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (UN, 2007).
4 There are countless debates surrounding the use of a medical definition of disability (Feldblum, 2000:
Kaplan, 1999: Jongloed & Crichton, 1990: Brandsma, 2009: Reisine, 1992 etc.) versus a more social constructionist definition stemming from a movement against the medical model in, for example American disability theory as explained by Kaplan (1999). These debates are not the focus of this thesis project and are therefore not referred to explicitly but it is important to acknowledge the difference surrounding these terms. How these terms are defined will also differ between states, cultures, generations and so on.
The UN does not provide a specific definition for intellectual disability despite making reference to this term in various Conventions and in materials used for RSD and resettlement. As such, this thesis uses the American Association on Intellectual and Developmental Disabilities (AAIDD) definition. Intellectual disability is a disability characterized by significant limitations in both intellectual functioning and in adaptive behaviour, which covers many everyday social and practical skills. This disability originates before the age of 18 (AAIDD, 2013).
This definition is also used by the World Health Organization (WHO) and cited in their Working Group on the Classification of Intellectual Disabilities (CID). It is important to note that the word intellectual was favourable in creating this term because in most countries it is well understood and widely used, and is broadly acceptable in the context of clinical and policy applications (AAIDD, 2013). Since the data for this thesis was collected from EOs from various counties, the “universal” understanding of this term is important to keep in mind.
Efforts to define disability and intellectual disability highlight the difficulties in practically applying these terms, which is a statement in itself. It is important to keep these challenges in mind as, highly contested terms that do not have one cohesive meaning are difficult to interpret and apply.
The decision to use the UNHCR 1951 Convention refugee definition and UNHCR definition of asylum seeker was based on the fact that all of the EOs interviewed for this thesis project were either from UNHCR or conducting RSD for countries signatory to the
1951 Convention, thus basing the definition that they apply and follow in practice from the Convention.
UNHCR 1951 Convention refugee definition: “The term refugee shall apply to any person who as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out-side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
An asylum-seeker is “Someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated. National asylum systems are there to decide which asylum-seekers actually qualify for international protection. Those judged through proper procedures not to be refugees, nor to be in need of any other form of international protection, can be sent back to their home countries” (UNHCR, 2001-2016).
2.3 Relevant manuals, Conventions and resource kits
The following documents pertain to the RSD process and ASID, as this population is the main focus of this thesis project. There are the documents available to EOs, particularly UNHCR EOs but can also be accessed publically through the UNHCR website, meaning that they are not internal documents. Chapter 6 addresses how these manuals and resource kits are used in practice. Listing the relevant materials provides the reader with some insight into what official documents exist to manage this population.
Debates surrounding their application in practice and how they address the mandates they claim to fulfill will be briefly discussed.
1. UNHCR Need To Know Guidance: Working with Persons with Disabilities in Forced Displacement
The objective of this document, as outlined by UNHCR is to provide staff with guidance on a range of issues to consider when meeting the responsibilities the staff has to “Develop a thorough understanding of circumstances of persons with disabilities under their care” (UNHCR, 2011b: 2). This document contains twenty pages with topics on protection, key considerations and resources. Its contents are bleak and incomplete, and the actions suggested for addressing things like non-discriminatory practices are to simply “Involve persons with disabilities in decision making, programming, and leadership” (UNHCR, 2011b: 5). This document does not include how to go about establishing inclusion and creating an environment where these “actions” can take place. The scenario and actions are extremely vague as shown throughout this thesis; vagueness only permits further space for invisibility.
2. UN Convention on the Rights of Persons with Disabilities (CRPD)
Arguably the most significant Convention related to persons with disabilities, the CRPD was enforced in 2008 and has lead to unprecedented interests in the treatment, experience, and rights of individuals who, in many countries have suffered (Smith-Khan et al., 2014:735). One of the groundbreaking elements of this Convention is how it conceptualizes persons with disabilities as right-bearers instead of “objects of charity, medical and social protection” (Smith-Khan et al., 2014: 737). The Convention is not specific to asylum seekers or refugees with disabilities but as an agency of the UN,
UNHCR acknowledged that the CRPD has implications for virtually every aspect of its policy. Despite this, during the drafting of the CRPD one of the ongoing debates between states partied to the Refugee Convention was whether the CRPD applies to refugees (Smith-Khan et al., 2014:739). In short, other treaty bodies have determined that human rights obligations are owed regardless of whether an individual is a citizen of a state, meaning that the CRPD would in fact apply to refugees (Crock et al., 2013:739). What is striking from this point is the efforts by states to question the application of a Convention that was created to establish greater agency and protection for persons with disabilities. Questioning its application to ASID, a population that is often referred to as having a “triple disadvantage” (Crock et al., 2013:736) highlights some of the challenges associated with stimulating change within the international community. If the creation of a UN Convention is contested by states and is not enough for the State to recognize the needs of this population then what will be?
3. UNHCR ExCom5 Conclusions (12 October 2010) Conclusion on refugees with disabilities and other persons with disabilities protected and assisted by UNHCR
The UNHCR ExCom 2010 conclusions are a promising development at the official level with regards to ensuring that the rights of persons with disabilities are protected (Mirza, 2014). This, coupled with various grassroots organizations working toward a common goal of greater protection, indicates a step in the right direction. However, the international community needs to make concerted efforts to build upon these developments meaning that despite their adoption it is not enough to ensure that further
5 UNHCR governing ExCom “meets in Geneva annually to review and approve the agency's programmes
and budget, advise on international protection and discuss a wide range of other issues with UNHCR and its intergovernmental and non-governmental partners” (UNHCR, 2001).
protection will take place (Mirza, 2014). It is important to keep these official decisions in mind when considering the research findings of this thesis, questioning if the desired outcome of these decisions are reflected in practice.
4. Women’s Refugee Commission (WRC) Resource Kit for Fieldworkers: Disabilities among refugees and conflict- affected populations
The contents of this resource kit are promising, as it provides information related to accessing mainstream services, specialized services for persons with disabilities, protection monitoring and RSD. This kit is a companion piece to the report Disabilities among Refugees in Conflict-Affected Populations published by the WRC in June 2008. The beginning of the resource kit makes it clear that it is intended for UN (among others) field staff working with refugees, asylum seekers and internally displaced persons (IDPs) with disabilities. This kit is well researched and provides actions and guidelines that are possible for EOs to practically follow. Although the material has been created, this does not necessarily mean that EOs use it in practice or have even come across it in their training or assessment writing. This will be discussed further in Chapter 6.
This chapter has worked to position disability in the protection mandate of UNHCR while defining relevant terms that will be used throughout this thesis. By briefly presenting some of the relevant manuals, Conventions, and resource kits used, it has provided the reader with a better understanding of how ASID are managed in practice. As we continue to explore these issues within the limited literature, Chapter 3 presents the academic concepts used to guide this study, which will be juxtaposed with my own practice and fieldwork experience as an EO in Chapter 4.
3. Conceptual framework and literature review: linking refugee status determination and disability with invisibility and vulnerability
In order to analyze the experience of EOs conducting RSD, the process itself must be uncovered. This helps to better understand what framework RSD operates in from its legal basis in application to its social implications. As a result of focusing on both forced migration and disabilities studies the literature chosen reflects two main concepts: invisibility and vulnerability. Connecting the literature with respect to these two concepts establishes their application, and as such, the literature review is separated into two main sections, RSD and refugees with disabilities. The literature is grouped according to each section; first using the forced migration literature then literature related to ASID. Section three presents the literature addressing visibility and vulnerability specific ASID. These topics have been identified in the existing literature to uncover what has (or has not) already been researched. Working to support the position that increased invisibility and vulnerability exists for ASID.
3.1 Part 1: Refugee status determination a) Refugee definition and RSD EOs
A foundational part of the RSD process is how terms are interpreted, applied and defined. This is due to the fact that it is a legal process, reliant on but not exclusively, to the 1951 Convention refugee definition, which is the same definition, found in the 1967 Protocol. The general refugee definition is a product of the legal and political philosophy of the 18th, 19th and early 20th centuries in western countries (Fortin, 2010). During this time, and arguably in recent times, the terms were determined based on the State and
Individual. From this, it is fairly easy to understand that the concept of “refugee” was essentially a legal concept.
The 1951 Convention deals poorly with many aspects of refugee needs, particularly in its vagueness and manipulability (Fitzpatrick, 1996). While there have been various developments and changes in forced migration, her analysis still holds true. She calls for a revitalization of the 1951 Convention definition, as the focus on persecution is inadequate and there is a need to expand the criteria for international protection by adopting more appropriate approaches for what she refers to as “evolving forced migrants”. It is important to highlight the vagueness of the definition and how it translates into practice. Asking how RSD can be carried out as a process when, some argue (Steinbock, 1998) that from its adoption the Convention was written and defined with the purpose of being a sort of “code” for Western European states at that time. The vagueness of the definition allows too much room for EO discretion; either to adapt it to new challenges and realities or to deny asylum claims that fall into scenarios that the definition is too out-dated to address. From this, the response of EOs is uneven (Fitzpatrick, 1996).
A crucial point with respect to the power of the refugee definition, in comparison to the status that a asylum seeker receives, is that “Because the recognition of refugee status is simply a declaratory, not a constitutive act, a person is a refugee with entitlement to Convention rights as soon as he or she in fact meets the refugee definition” (Hathaway 2003: 2). This supports Fitzpatrick’s argument that the definition is vague, missing key elements that would allow for greater application, which translates into refugee
protection. If a person is entitled to the Convention rights once they meet the refugee definition, as the definition narrows so does the opportunity to access refugee protection.6
Elements of the refugee definition in the 1951 Convention, from its inception, have been controversial (Steinbock, 1998), due to its limits and how these limits translate into who can benefit. Not only who can benefit but also the control these limits have. The structure of the refugee definition is rigid, meaning that as a population refugees are told how they will be defined and not the other way around. This follows what is arguably Steinbocks (1998) strongest point, that the Convention created a definition that refugees could not define themselves. Despite the ongoing criticism of the refugee definition, neither the text of the Convention nor the history of how it was drafted can ultimately determine its meaning (Steinbock 1998). One of the strongest uses for the refugee definition is its universal recognition and how this combats the situations states find themselves in when having to provide protection. There remains difficulty in agreeing on an acceptable definition due to the fact that in practice there are many interpretations of the definition and “Like currencies, they have fluctuating values and exchange rates” (Zetter, 2010). Bringing into question, the value that the definition carries, as the gateway to legal status for asylum seekers whose claims meet the definition. This idea that asylum seekers have to adjust their claims to conform to the definition is a bureaucratic creation, turning a “story” into a “case” (Zetter, 2010).
There lacks research looking specifically at the experience of EOs during the RSD process, with no real focus on how EOs go through the process of interviewing asylum seekers and writing well-argued and researched assessments that determine ones refugee
6 This need to meet demands is connected and related to the asylum seekers claim and how at times, they
are required to adjust this claim to better for the refugee definition in order for it to be accepted to receive protection under the Convention definition.
status. Despite research highlighting the shift from a group determination process to the individualized approach, these articles do not account for experiences or potential problems associated with this shift (Goodwin-Gill, 2013). This can be attributed to a tendency for academics in forced migration to focus on populations or topics that organizations such as UNHCR deem worthy or urgent, which is connected to the numbers they record at registration. Smrkolj (2009) discusses individualized decision-making with an example of UNHCR RSD. The article is case specific but points to UNHCR lengthy procedures, its failure to provide the population being researched with proper assistance, improper interviews and their general treatment by UNHCR personnel. Other than this article, some authors briefly mention how individualized RSD can be problematic but there appears to be no research specific to their experience.
Having EOs spread across the world makes consistency and transparency in RSD a difficult task (Stainsby, 2009). This holds true in relation to the refugee definition, as mentioned above, its vagueness can lead to varying interpretation of its key terms.
Consistency and transparency are essential in trying to understand the primary difficulties found in the RSD process and how this is heightened when applied to an asylum seeker with multiple vulnerabilities. One EO may consider an applicant's testimony to be credible because its weaknesses can be explained by trauma, while another assessing a similar testimony may reject it (Kagan, 2003). Despite the fact that Kagan is speaking solely to the credibility assessment, this statement holds true for various steps in the RSD process. What this means, is that to a large extent, assessment remains in the eye of the beholder, just as the title of the article suggests. This, mixed with the vagueness and difficult universal application of the refugee definition, brings into question how
confident EOs can be and how this impacts their experience conducting first instance interviews.
The overall consensus of the literature, pertaining to the refugee definition and EOs, is that almost every word of the refugee definition has been brought under scrutiny at some point, yet, it is still unclear how to interpret or practically determine, for example, what persecution is, or what harms qualify under its categorization. Since the creation of the 1951 Convention refugee definition, it has been the cornerstone of the international response to forced migration. This has inspired many countries to adopt the definition on the basis of asylum eligibility, while the definition has addressed what the world has identified as the most pressing needs, it will not end social suffering (Steinbock, 1998).
b) Persecution and protection in the refugee definition
The refugee definition is highly contested, yet accepted to be the foundation of how refugees access protection, as a definition, it clarifies who is entitled to protection and who is not. The 1951 Convention definition incorporated both the notion of persecution and the lack of protection, shaping the meaning of protection in the refugee definition (Fortin, 2000). The 1951 statue does not include the member of a particular social group category whereas UNHCR section 6 (B) of the statue does (Fortin, 2000). The subsequent chapters of this thesis will clarify its relevance, but it is important to acknowledge that it is reflected in the literature.
Protection in the refugee definition is the protection against the persecution that the person fears, internal protection (Fortin, 2000). This is of great importance because
understanding the nature of protection the definition refers to will shape how fear is assessed, and the idea that EOs determine the legitimacy of this fear as a result of persecution. International protection can only function as a supplement to the protection that host countries provide, coming from the international institutions present in that country (Fortin, 2000). Not only does the interpretation of the refugee definition vary depending on who is applying it but also the nature of the protection provided varies from state to state. During the past four decades the concept of persecution has undergone an evolution, this is exemplified through the example of sexual and gender based violence (SGBV) claims (Fitzpatrick, 1996). The evolution that the term “political” experienced is similar, but this evolution varies between states and the individual interpreting the definition and what constitutes persecution. In the SGBV example, the changing attitudes of violence against woman impacted the assessment of these claims, changing the way persecution is defined without actually changing the refugee definition. This represents the power of changing attitudes and what exposure can do for specific vulnerable groups in terms of receiving protection based on the refugee definition but shaped by external factors.
With a clear understanding of the Convention refugee definition and the debates surrounding how this influences a level of local opinion for EOs, the next section presents an overview of how labels and categorization are interpreted and applied in the existing literature.
3.2 Labeling and categorization
The 1951 Convention addresses individualized persecution based on five grounds: nationality, religion, race, membership of a particular social group and political opinion.
These grounds are inadequate in addressing contemporary forced migrants. This becomes clear though highlighting the strategies states use to avoid their Convention obligations, such as, creating additional categories of forced migrants and limiting the scope of refugee protection through narrow definitions of who is entitled to protection (Fitzpatrick, 1996). Groups defined by sexual orientation or gender under the Convention definition and categories are no longer recognized as clear examples of particular social groups, but may qualify depending on the circumstances in their country of origin. Meaning that the membership of a social group category is flawed as it relies heavily on country of origin information (COI) (Hathaway, 2003).
The evolvement of the refugee regime has resulted in the proliferation of labels.7 Rather than assessing applications against the Convention refugee definition governments, and UNHCR have invented a “B status” persons assigned to these labels, are generally protected against refoulment in line with Article 33 of the Refuge Convention (Hathaway, 2003). This means that the categorization has granted this population with a label permitting them to exist under the refugee definition but in many ways they have not been treated as refugees. As a matter of international law there is no barrier to seeing refugee status as only requiring protection for the duration of risk (Hathaway, 2003). The risk assessment associated with whatever category of refugee definition grounds an individual is placed in impacts what protection they have access to. If the baseline conditions are met should the idea of a common assessment procedure for
7 Justification for using the term label: “As opposed to other terms, for example, ‘category’, ‘designation’
or ‘case’, the word ‘label’ better nuances an understanding which: recognizes both a process of identification and a mark of identity; implies something independently applied, but also something which can be chosen and amended; has a tangible and real world meaning, but is also metaphorical and symbolic” (Zetter, 2007:173).
refugee status be implemented. Working to eliminate “B status” labels and shifting to “harness procedural efficient as the primary means by which to deter abuse” (Hathaway, 2003: 21).
Zetter (1991) outlines the consequences of refugee labeling, the operational limitations of the existing definition and the lack of systematic studies related to the labeling process of refugees. This leads to stereotyped identities, which are translated into bureaucratic needs and assumed politicized meanings. Emphasizing the impact of labels and how they not only shape the refugee identity but also their political position, which can govern their protection. This shows how the process of labeling, which includes stereotyping, standardizing and the formation of clear-cut categories, is just as important as the label itself (Zetter, 1991). The advantages and disadvantages of clear-cut categories is something that will be explored throughout this thesis, as greater invisibility can have both positive and negative outcomes. A major problem associated with labeling and categorization is that it defines a group and identifies their needs, ultimately reducing the individual to a formal set of compartmentalized data (Zetter, 1991).
Globalized processes have shaped the “refugee label”; asylum seekers are migrating between these labels, which ultimately designates the nature of their claim. The shift from a traditional “refugee label” consistent with the refugee definition can mean that a process to create, “less preferential categories for temporary protection” is in full effect (Zetter, 2007: 182). The focus used to be on the labeling and categorization of refugees, but in recent decades there is concern about the de-labelling; being a refugee is no longer a right but a “prized status and commodity” (Zetter 2007: 180). As labels play a
vital role in the RSD process, will the decrease in preferential categories mean an increase in invisibility for certain asylum seeker and refugee populations?
This section has highlighted the assignment of labels, often done by EOs as a result of their position, the consequences of this labeling and what has shaped the “refugee label”. Categorization stems from the labeling process and the adoption of “clear-cut categories” is just as influential as the label itself. Labels and categorization are significant because they permit a process of identification, organizing variables that are deemed worthy of protection. In order to obtain the “refugee label” an asylum seekers claim must be found credible, a topic that has been given a great deal of attention in the literature and is discussed in the next section.
3.3 Credibility
Credibility assessment in RSD is often the most important determinant of whether people seeking protection as refugees should be returned to their country of origin (COO), as asylum seeker applications rely heavily on the value of the individual’s word alone (Kagan, 2003). Credibility-based decisions in refugee cases are frequently being made based on personal judgment, which differs from one EO to the next (Kagan, 2003). The idea that there is a need to convince the EO comes into play, in how believable the applicant is, which is heavily subjective. As a result, governments, courts and UNHCR have recognized asylum seeker testimony despite it including inconsistencies and significant flaws. Notwithstanding this shift to a more objective approach, courts still find themselves wondering if credibility assessments should be left to EOs at the stage of first instance interviews. Allowing a central part of RSD to be essentially subjective generates serious doubts about the fairness and effectiveness of the adjudication system (Kagan,
2003). Negative credibility decisions are often reached without providing specific reasons and without follow-up interviews, emphasizing that the decisions made heavily rest at the discretion of the EO (Kagan, 2003).
Shifting the focus from analyzing credibility solely from one position, a largely ignored area in the literature is how to deal with evidentiary questions in the context of “burden”, “standard of proof”, “benefit of the doubt” and assessing credibility (Gorlick, 2003). The humanitarian nature of international refugee law and the obligation of states to provide protection require that the refugee definition be interpreted and applied in “a liberal manner” (Gorlick, 2003: 360). Simply put, decreasing the sometimes strict approach to RSD. From this, “the concept of persecution should be interpreted and applied liberally and also adapted to the changed circumstances which may differ considerably from those existing when the Convention was originally adopted” (Gorlick, 2003: 360). However, this liberal interpretation is not usually the case in practice, as a number of authorities are particularity strict in assessing credibility, rejecting cases based on inconsistencies found outside of the material provided for the basis of the claim (Gorlick, 2003). This brings into question assessing the evidence for credibility and doing so in a way that connects to the assessments of well-founded fear, which should be done in a flexible manner.
a) Burden of proof
There are countless articles from a legal perspective on burden of proof in matters of RSD. Burden of proof and obligations to prove a claim or allegation lies within the application but in cases of vulnerability, it is the responsibility of the EO to evaluate the
relevant facts, while applying relevant country of origin information (COI) (Gorlick, 2003). In the end, the only viable evidence is the applicant’s testimony, meaning that if they are classified as unable to provide this testimony the EO has to piece together the testimony based on COI or information from the applicants family or guardian.
b) Benefit of the doubt
Benefit of the doubt as promoted by UNHCR and its leading courts offers little
direct guidance, and that benefit of the doubt is only applied if the applicant’s case is already found credible (Kagan, 2003: 372). However, what benefit of the doubt does is protects applicants who have already been determined as having credible testimonies from attacks based on general assumptions about all asylum seeker honesty. This is a safeguard to ensure that refugees are not penalized based on public persecutions or the abuse of the refugee system by others (Kagan, 2003). Connecting this to the role of EOs, there has to be a presumed trust established prior to hearing an applicants claim in order to guarantee benefit of the doubt once the claim is accepted. UNHCR RSD widely adopts
benefit of the doubt, in the case where the applicant’s claim satisfies the refugee
Convention definition, benefit of the doubt can be exercised given the fact that certain credibility criteria have been met (Gorlick, 2003).8
Presently, there exists an absence in consensus among states and UNHCR in assessing evidence in RSD procedures (Gorlick, 2003). The UNHCR RSD Handbook should be considered a starting point for assessing credibility and the use of evidence and
8 It is important to note that in this process standard of proof is also used, when considering an applicant’s
responsibility to prove facts supporting their refugee claim. Defined as the persuasion of the EO of the truth of the applicant’s statements. This was not addressed in detail because it does not directly apply to the case of ASID and the arguments (detailed in Chapter 6) made for assessing this populations credibility can be done through highlighting the concepts of benefit of the doubt and burden of proof (Gorlick, 2003).
supporting information should be used to fill any gaps that may exist.9 Courts have taken steps to make credibility assessments less subjective, but a standard analytical framework for credibility assessment should be created to ensure that people in danger of human rights violations get the protection they need (Kagan, 2003). This would also instil more confidence in the RSD system.
This section underlines the importance of credibility assessments in RSD. It highlights the expectations and responsibilities placed on EOs to determine what claims are credible. This brings into question how asylum seekers need to present their claims as credible based on criteria outlined in the refugee definition, with hopes that this will be interpreted and accepted by the EO. Part of this chapter, presents the literature pertaining to refugees with disabilities related to the refugee definition, protection, categorization, identification and credibility.
3.4 Part 2: Refugees and asylum seekers with intellectual disabilities
a) Disability and the refugee definition
Crock, Ernst and McCallum (2013) not only address the effects of refugee law and policy of the CRPD but also explain the paradigm shift that this Convention represents for displaced persons with disabilities; arguably the foundation for analyzing the intersection of disability and forced migration. This piece goes into detail about the role of the Convention, enforced in 2008 along with its Optional Protocol as a “ground breaking instrument for persons with disabilities” (Crock et al., 2013: 736). Convention analysis is important as it explains the systems governing the treatment of a certain
9 The example used for supporting information was from the Committee against Torture as well as a
population, among other things. From this piece I am interested in the information related to the RSD process and the interpretation of the refugee definition.
Key elements of the Convention definition of refugee can prove challenging for asylum seekers with disabilities (Crock et al., 2013:742). Fear and the assessment of fear is a topic that appears often when discussing ASID during the RSD process. As cognitive impairments can affect a person’s ability to demonstrate fear, or in some cases, articulate a claim. Unlike the articles in section one and their interpretation of fear, in this context, some problems related to fear could be overcome by focusing on objective elements of fear. Examining what is known in terms of the harm that an individual may face and meeting one of the five Convention grounds based on the persecution that is feared would be a challenge for an ASID, without the consideration of objective elements. Therefore, EOs should give consideration to the impact of disability on a person’s experience of harm. Again, this consideration is vague and can vary on a case-to-case basis depending on how the person that is applying the refugee definition interprets it.
b) Membership of a particular social group
There are two approaches to assessing if a group constitutes persecution. The first is “immutable characteristic”, which examines whether a group is united by an immutable characteristic, or one fundamental to human dignity (Crock et al., 2013: 750). The immutable characteristic must be one that the members of the group either cannot change or should not be required to change as it pertains to their individual identity (Kanter et al., 2000: 1144). The second is called the “social perception” approach, which examines whether a group shared a common characteristic that makes them a group, or sets them apart from society. Understanding the membership of a particular social group
ground from these two perspectives creates some clarity in their application when it comes to the RSD interviews. The authors emphasize that the difficulty does not lie in showing that a person is in fact a member of said group but more so the conduct that arises by reason of the persons membership of that group. Here, the important take away in relation to RSD and EOs, is the need for their analysis of the case to spread further than the resources they have, for example the 1951 Convention definition. Looking at societies negative attitudes towards ASID or the attitudes of the government, in order to understand just how this “group” is understood from a wider perspective. Persons who have suffered trauma or are suffering from mental or emotional disorders also require special care and that the Handbook suggests that in such cases, whenever possible, the examiner (EO) should obtain expert medical advice (Gorlick, 2003). Medical reports should be used when determining if an asylum seeker meets the “group” requirements as the Handbook recommends and that the medical report should include the applicants ability to present their case, informing EOs to “Lighten the burden of proof normally incumbent on upon the applicant” (Gorlick, 2003:365). It is important to note that these are merely recommendations made by the Handbook, not requirements, meaning how this is interpreted and applied in practice will vary.
3.5 Protection
a) Disability as a barrier to protection
In terms of protection for ASID, a distinction must be made between the willingness to protect and protection in practice. If this is expressed through official policy or simply just referred to as a pressing issue to address. It appears that the latter
holds true. States acknowledge that refugees and ASID are marginalized and as a result face great obstacles to receiving adequate protection. This is not to say that no country or organization has provided protection through official policy but this is often not the case (Crock et al., 2013:750). ASID suffer from a “triple disadvantage”, which includes being stripped of their protections of state citizenship, a trait shared by all Convention refugees. This is paired with intellectual or sensory impairments, which hinders their participation in society. In most cases, this translates into the nature of the protection that they receive (Crock et al., 2013). This is connected to other vulnerabilities, which need to be taken into account when protection needs are assessed (Crock et al., 2013).
Article I of the 1967 UN General Assembly Declaration of Territorial asylum affirms the principle that Member States retain their right to remain the sole decision maker with respect to the ground upon which they extend asylum protection within their own borders. To date, no Member State has declared people with disabilities, as a group that should be entitled to asylum (Kanter et al., 2010). This connects to the idea of a willingness to protect, but raises questions about what protections are provided in practice. Issues people with disabilities face today are not only related to what type of persecution the individual has suffered to qualify for asylum but how to provide legal protection (Kanter et al., 2010).
The specific barriers that ASID face to accessing protection and assistance when seeking asylum are yet to be recognized and without adequate recognition how can their protection needs be met? A move in the right direction in terms of protection is to recognize disability it as a social status rather than a medical condition (Straimer, 2010). This creates an understanding that ASID are targets of discrimination, and as a result,
they require particular protection. Disability can thus arise as a consequence of a lack of protection and assistance and become a barrier to accessing protection (Straimer (2010). Issues related to access of a fair asylum procedure influence what protection assistance an individual will receive “ignorance of mental impairments, for example, may jeopardize access to protection as applicants may fail the credibility assessment and are often denied legal representation” (Straimer, 2010: 4). As a consequence, this ignorance acts as a barrier to establishing what protection is needed. Paired with the reluctance of some states to grant asylum seekers with disabilities protection. One reason for this is the stereotypical perspective that this population is a burden paired with a considerable lack of advocacy for the human rights of ASID (Straimer, 2010). Overall, Straimers (2010) piece is the only research focusing on the invisibility of asylum seekers with disabilities, connecting this with RSD and protection needs.
3.6 Categorization and identification
Without adequate identification processes it is extremely difficult to determine not only what a populations needs are but how to practically address these needs. The consensus found in the literature is that there is a lack of data pertaining to ASID. This is attributed to the inability of both the State and organizations to identify the population. Mirzas (2011) work focuses on the experience of ASID in refugee camps, where they explain that the Heightened Risk Identification Tool, released in 2007 includes different risk indicators under six categories. Disability is included in the health needs category, this tool and the general approach to categorize individuals as “vulnerable” essentializes refugees with disabilities and overlooks their strengths. Ultimately this confines disability issues to a narrow framework of health and medical needs (Mirzas, 2011). This means
that organizations are using the process of categorization to address something that they think is an issue, but has the potential to mask issues outside of medical ones, identifying this population and reducing them to a single factor.
A swift and systematic identification and registration for ASID is needed, with special attention paid to those who cannot independently communicate their needs (Crock et al., 2013). Without this, proper identification of protection and assistance needs are not possible. Crock (et al., 2013) has a section on accommodating persons with disabilities in the asylum process, explaining that the first and most important obligation facing an EO processing a refugee claim is identifying disability in a person presenting as an asylum seeker. A lot of emphasis is placed on the role of EOs in identifying these needs, as the identification is of critical importance for the design and delivery of services. I agree with Crock (et al., 2013) in that the first step to adequate protection is identification, but the practical application of this appears to be difficult. In a ideal world, identification of needs for ASID can and would happen at registration, but the reality of this is questionable. In saying this, identification can happen at the individual level and also at the group level, which was explained in section 2.1 a, and can be explained as “establishing inclusion in and identification with a group of persons similarly situated” (Kanter et al., 2000: 1129). Identification at the group level may create already determined needs based on what registration has seen before, generalizing what a ASID may need. The approach to individual identification is desirable, and should be the preferred approach although how this plays out in practice is debatable approach to (Crock et al., 2013).
3.7 Credibility
Again, there appears to be little research related to ASID and credibility. Despite these gaps, one of the leading questions on the topic of ASID, is if their claims can be taken as credible or not, and how they can be accepted in a legal context. Explicit reference to these issues related to credibility is rarely addressed. The section on credibility does acknowledge the difficulties posed by the need to present credible claims. Disability may “Make a claimant appear incoherent, inconsistent, defensive or uncommunicative, it may make it difficult for a person to understand questions and to answer them intelligibly” (Crock et al., 2013:756). Many factors influence the inability of EOs to accept ASID claims as credible, such as the lack of legal representation to support their claims, and at times a lack of coherence and consistency in the claim.10 EO ignorance of mental impairment and how it may cause an applicant to fail the credibility assessment, when they are often denied legal representation (Straimer, 2010:4).
3.8 Visibility and vulnerability
The above literature shows how various factors contribute to the invisibility of ASID. Starting from the vagueness of the Convention refugee definition and how this permits individual interpretation of who is or is not a refugee. This vagueness can permit invisibility when a population does not fit into the specific category, stemming from the label they are given. This section analyses ASID as “holder of rights”, and defines vulnerability, unpacking how disability renders people vulnerable and works to shed light on the UNHCR “vulnerable group” category.
10 It is worth noting that determining what is coherent or not, or what is consistent differs greatly between
a) Object versus “holder of rights”
Existing literature within disability studies defines “invisible disabilities” as “many individuals with conditions, illnesses, and structural or biomechanical anomalies that are life limiting but not readily discernible to others” (Davis, 2005: 153). Disability is a multifaceted structure where invisibility can take shape at various levels, bringing into question how greater recognition for this population can take place when, at times, their disability is not visible. Seeing disability solely as a condition or piece of an individual’s identity can lead to objectification, viewing persons with disabilities as objects of welfare or medical treatment rather than “holder of rights” (Straimer, 2010). This thesis is interested in the tendency to rely solely on a medical approach instead of the “holder of rights” perspective and if the data reflects this as influencing the overall visibility and vulnerability of ASID.
b) Defining vulnerability
A major universalizing “vulnerability” is that, it inevitably means different things to different people at different times (Graz, 1997). Therefore, vulnerability and “the vulnerable” cannot be used as non-specific terms and must be paired with other groups, such as women, children, the elderly or disabled. The lack of a universal definition of vulnerability results in most cases being left to interpretation. Organizations such as the Red Cross have established working definitions in order to substantiate this term “Those at greater risk from situations that threaten their survival or their capacity to live with a minimum of social and economic security and human dignity” (Graz 1997: 1). Efforts made by UNHCR to step away from the preconceived notion that women and children,
for example, are automatically labeled and categorized as vulnerable, moving away from what is identified as “traditional thinking” (Graz, 1997). Despite this, the way in which vulnerability is interpreted and applied as a tool for identification and classification remains the same as vulnerability is usually considered relative to physical phenomenon, something that can be easily identified and managed as a result of this. Vulnerability exists both on an individual and collective levels. The vulnerability of a population is often deliberately given lower priority than, for example, political considerations, as seen through the Red Cross definition (Graz, 1997). The response to identifying, protecting and providing protection for “the vulnerable” lies within measuring vulnerabilities and assessing capacities as that vulnerability and capacity are “two sides of the same coin” (Graz, 1997). Vulnerability assessments study weaknesses and strengths, determining which to consider and how these will be managed.
c) Disability as a status that renders people vulnerable
Vulnerability must be paired with other groups and because of this, disability is a status that renders ASID as vulnerable. However, the association of disability with vulnerability is contested (Straimer, 2010). Providing the example that ASID may have specific needs that can render them vulnerable in certain contexts yet they can also be given the label of vulnerability due to a lack of awareness of their capabilities. Disability is seen as something that would leave an individual vulnerable but instead of using this perspective on an individual basis, it is applied to a group. Indeed, many asylum procedures remain linked to a group-based understanding of vulnerability, introducing specific safeguards only for certain categories (Straimer, 2010). These categories and the emphasis that is placed on certain vulnerable groups over others will be discussed further
