This post is a short version of the paper I will present at the 2013 Critical Legal Studies Conference at Queen’s University, Belfast http://www.qub.ac.uk/sites/clc2013/
The reason for writing this paper is the recent judgment of S.H.H. v UK which is analysed in an excellent post here: http://strasbourgobservers.com/2013/02/19/non-nationals-living-conditions-and-disability-situating-s-h-h-v-united-kingdom-within-strasbourgs-article-3-case-law/
Non-refoulement under international law imposes an obligation on a state not to expel or return a refugee to her country of origin or any other country where her life or freedom would be threatened on account of her race, religion, nationality, membership of a particular social group or political opinion.
In the context of the ECHR, non-refoulement has been adopted under the guise of Art. 3, which prohibits inhuman or degrading treatment and torture. So, an asylum seeker cannot be deported to her country of origin if she is in risk of being tortured or treated in a manner inconsistent with Art. 3.
In situations of armed conflict and humanitarian emergencies, the disruption of health services in the country of origin is a very serious issue, because it denies persons with disability the necessary support for medical intervention and social rehabilitation.
So the question arises: If a person with disability seeks asylum on the grounds that she is fleeing a devastated country, which provides no support to persons with disability, is an obligation of non-refoulement triggered? Can it be said that returning the asylum seeker with disability to her country of origin, where there is no accessibility, no rehabilitation, no social care, would violate Art. 3?
In S.H.H. v UK, the ECtHR considered that the applicant could receive some support from his (allegedly estranged) family and some social care from Afghan authorities, so he would not be placed in a position where Art. 3 would be violated.
The strong minority contested this and argued for a disability-sensitive interpretation of non-refoulement, without really going into this issue. So, what would this disability-sensitive interpretation of non-refoulement entail?
I think that more extensive protection from refoulement against deprivation of socio-economic rights is required. Our understanding of the obligation of non-refoulement has to be informed by the lack (or otherwise, existence) of a framework of support for persons with disability in their country of origin. This is where Critical Disability Theory comes into play, because it highlights the social oppression felt by persons with disability. Using the social model of disability, the disability rights movement has pushed for the adoption of the Convention on the Rights of Persons with Disabilities in order to advance a claim for support, while confirming and asserting the autonomy of persons with disabilities. By contrast, state policies which deny provision of support for persons with disabilities merely perpetuate the social oppression of persons with disabilities and they have to be eradicated as they are disablist. If a framework of support for persons with disability is non-existent in the country of origin, especially in humanitarian emergencies, a state party to the ECHR has an obligation to provide asylum to refugees with disabilities, under Art. 3.