Children with psychosocial and intellectual disabilities in the asylum process

Researcher: Anna Bruce

This project focuses on the right to seek asylum and other forms of international protection and departs from the principle of equal rights and non-discrimination among asylum seekers. The questions addressed are:

  1. what demands the Convention on the Rights of Persons with Disabilities (CRPD), the Convention relating to the Status of Refugees, and the EU directive on the asylum process (recast) place on the accessibility and usability of the Swedish asylum process for asylum seeking children with intellectual and psychosocial disabilities;
  2. to what extent these demands are complied with in the Swedish asylum process; and
  3. in those instances where they are not complied with, through what measures can they be appropriately fulfilled.

The latest UN convention on human rights, CRPD, is the clearest example of a growing awareness of the importance of shaping legal and administrative processes in a way that does not disadvantage persons with disabilities, especially children with disabilities. Article 13 Access to Justice stipulates that the state shall “ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants”. Moreover, Article 7 Children with Disabilities gives children the “right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right”. This is central, as being a child and having a disability, especially an intellectual or psychosocial disability, triggers tendencies to make decisions over the head of the individual without any anchorage or with no opportunity for the person in question to express his/her own will and own narrative. Article 7 also stresses the principle of the best interest of the child.

The central question in the project is how the right to “accommodation”, “accessibility”, and “support” for asylum-seeking children with intellectual or psychosocial disabilities are to be understood in all phases of the asylum process. Among other things, this includes aspects of the process involving time and space (encompassing time limits for resource persons, pleas, interviews, and the venue for meetings), issues of legal capacity, the possibility of personally expressing one’s account with the requisite adaptations and support, the capacity of involved actors to read, communicate with, and in general receive and understand the applicant in an adequate manner, the possibility of calling in medical or psychosocial expertise, questions regarding evidence requirements and the burden of proof as well as questions specifically involving appeals to courts (such as oral hearings). The third subquestion (appropriate measures) will be investigated primarily through Swedish law. As necessary, comparative material will be analysed from well-developed national asylum systems within the EU and, secondarily, the rest of the world.

In certain cases the actual existence of a psychosocial or intellectual disability may stand in connection to the grounds for protection or be argued as an independent ground for protection or as an “exceptionally distressing circumstance” under Section 5:6 of the Aliens Act. These cases will be investigated as a subordinated matter. The focus will then be to what extent Sweden’s undertakings under CPRD and the principle of treaty-compliant interpretation entail changes in current legislation of in praxis.

The subproject is a postdoctoral project at the Department of Law, Lund University.

Read a brief summary of the subproject (June 2015).