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European Court of Human Rights splits on approach to disabled asylum seekers (11 February 2013)

Date: 11/02/2013
Duncan Lewis, Public Law Solicitors, European Court of Human Rights splits on approach to disabled asylum seekers

Duncan Lewis represented SHH, a severely disabled Afghan who sought asylum in the United Kingdom. His application was refused and he appealed, unsuccessfully, to the First - Tier Tribunal. When he was also refused permission to appeal that decision to the Upper Tribunal Duncan Lewis appealed to the European Court of Human Rights (‘ECtHR’). The Court granted our application for an Order preventing the removal of SHH until they had decided his appeal.

The Majority decision

The ECtHR has now decided in the case S.H.H v The United Kingdom 60367/10 - HEJUD [2013] ECHR 102 (29 January 2013) by four votes to three that notwithstanding that those with disabilities may be subject to discrimination and poor humanitarian conditions upon return to Afghanistan, there was no substantial evidence per se that they would be at a greater risk of violence. As such the applicant had not demonstrated that he would be subjected to an enhanced risk of indiscriminate violence such as to engage Article 3.

It had also been argued that the ECtHR should consider the living conditions that he would be subjected to upon return in light of the case of M.S.S v Belgium & Greece in relation to his inability to cater for his basic needs in Afghanistan. However the Court found that Afghanistan was a non-contracting state with no similar positive obligations under European law and could not be held accountable under the Court for failure to provide adequate welfare assistance to persons with disabilities.

The alternative view

Judges Ziemele, David Thor Bjorgvinsson and De Gaetano disagreed and produced a joint dissenting opinion. Interestingly they noted the majority judgment gives weight to the fact that SHH could potentially contact his two married sisters in Afghanistan and seek assistance from them. The dissenting judges found this approach not only speculative, but at odds with the approach that would be taken in the United Kingdom: as these familial ties would not be accepted as relevant ‘familial ties’ under Article 8 of the Convention had the sisters been living in the United Kingdom. The central question that they posed was whether the nature of the applicant’s disability coupled with the concrete situation in Afghanistan engages Article 3. The dissenting Judges considered that the issues in the instant case did not fall strictly speaking within the line of the case-law represented by N v the UK; and neither did it fall exclusively within the framework of Salah Sheekh v the NL or Sufi & Elmi v the UK line of case-law – and accordingly this raised a new point of law.

The dissenting Judges concluded that, in light of the Convention on the Rights of Persons with Disability, which the United Kingdom ratified in 2009, an assessment needed to be made which centers around a disability-sensitive interpretation of the facts and of the application of the Court’s case-law to those facts to consider whether or not return to Afghanistan engages Article 3 of this particular applicant. Notably, the Judges highlighted that the applicant’s case was that Article 3 would be engaged in respect of the facts of his specific case and not that all persons with disabilities should not be returned to Afghanistan. They considered that the Immigration Judge did not properly examine this claim properly and accordingly that they had been left to speculate with regards to issues that should have been disposed of at a national level and the stressed the need to adopt a disability-sensitive approach in future cases such as this one.

It remains to be seen how the national courts will develop their assessment of those applicants with severe disabilities in respect of their consideration as to whether Article 3 is engaged. For now it would appear that N v the UK is still the benchmark when considering whether a proposed removal beaches human rights both for the ill and the disabled; the question is now whether this exceptionally high threshold should be considered in light of a fact specific disability-sensitive approach as suggested by the dissenting Judges.

Duncan Lewis are grateful to Mark Symes of Garden Court Chambers for his assistance, pro bono, in this matter.

By Kat Hacker


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