Disabled persons who have to leave their countries find themselves in particularly disadvantaged situations. Disabled refugees are an extremely vulnerable group and are, therefore, in need of special attention. However, there are no legal instruments at an international level, as such, to protect the rights disabled refugees. Disabled refugees can only refer to scattered provisions of conventions, instruments and international humanitarian law.
According to the Convention relating to the Status of Refugees, the legal definition for a refugee is "…a person who is outside his country of origin and cannot return to it owing to a well-founded fear of persecution for reasons of race, religion, nationality, or political opinion." Indeed, Article 1 states:
"The term refugee shall apply to any person who: (...)
(2) 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 outside 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".
The 1951 dateline originated in the wish of Governments, at the time the Convention was adopted, to limit their obligations to refugee situations that were known to exist at that time, or those which might subsequently arise from the events that had already occurred. By accession to the 1967 Protocol, States undertake to apply the substantive provisions of the Convention to refugees as defined in the Convention, but without the 1951 dateline.
The Refugee convention applies to all refugees, equally. Some of the basic provisions can be stated as follows:
- Article 24 of the Convention relating to the Status of Refugees: "The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters: (...)
- Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by social security scheme), subject to the following limitations:
- there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;
- national laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension."
- Other provisions to which disabled refugees will refer for their protection will be the following ones: Articles 3 (non-discrimination), 7 (exemption from reciprocity), 17 (wage-earning employment), 18 (self-employment), 19 (liberal professions), 31 (refugees unlawfully in the country of refuge), 33 (principle of non refoulement).
The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, in Rule 21, require that measures to achieve the equalisation of opportunities of disabled refugees should be integrated into general development programmes.
The Trust Fund for Handicapped Refugees was set up with funds originating from the Nobel Peace Prize granted to the UNHCR in 1981. Before this, little was known of disabled refugees, many or whom became disabled through violent encounters. Since then, the UNHCR has helped many disabled refugees by covering the costs of social, medical and rehabilitative assistance when these were not provided by the home country of the refugee, or when access and facilities were denied to disabled refugees.
The Guidelines for Educational Assistance to Refugees emphasise that all "…measures for disabled refugees are based on all the concept of community-level care and are incorporated into the overall Care and Maintenance Programme."
Article 22 of the Convention on the Rights of the Child states: "States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee (…) shall (…) receive appropriate protection and humanitarian assistance in the enjoyment…" of rights recognised in the Convention.
The 1951 Convention does not mention children specifically, but some of its provisions, such as that on education, are especially important to refugee children. UNHCR has, however, made children a policy priority, and has adopted several documents to guide its work in that area.
The 1987 Conclusion on Refugee Children (Conclusion No. 47 (XXXVIII)) stresses that "… the need for internationally and nationally supported programmes geared to preventive action, special assistance and rehabilitation for disabled refugee children and encouraged States to participate in the "Twenty or More" Plan providing for the resettlement of disabled refugee children." The "Ten or More" plan created in 1973 and increased in 1984 to the "Twenty or More" plan, together with other special programmes, gives the highest priority to children who are disabled or victims of torture.
The 1997 Conclusion on Refugee Children and Adolescents (Conclusion No.84) is concerned with the prevention of sexual violence, exploitation, trafficking and abuse. It addresses the rights of child and adolescent victims through provision and appropriate legal and rehabilitative remedies.
The UNHCR has also adopted Guidelines on Refugee Children in 1988, which are incorporated into UNHCR Policy on Refugee Children.
UNHCR adopted a Policy of Refugee Women in 1990 and Guidelines for the Protection of Refugee Women in 1991. The Guidelines review refugee women's legal and physical protection needs. They give concrete recommendations on how to involve refugee women in decisions affecting their security and how to identify particularly risky situations. The Guidelines emphasize safety and suggest mechanisms to improve the reporting of physical and sexual protection problems and programmes for improved protection.
Article 4 of the Convention Governing the Specific Aspects of Refugee Problems in Africa states: "Member States undertake to apply the provisions of this Convention to all refugees without discrimination as to race, religion, nationality, membership of a particular social group or political opinions." (emphasis added).
The Addis Ababa Document on Refugees and Forced Population Displacements in Africa states in the recommendation 8 states that " …the international Community, the UN, the UNHCR and other relevant organisations, should support and assist host Governments in fulfilling their responsibilities towards refugees in a manner consistent with the principles of refugee law on the one hand, and legitimate national security, social and economic interests on the other hand. In particular, financial, material and technical assistance should be made available to (…) provide food, water, shelter, sanitation and medical services on a timely basis so that refugees and local populations alike are not put in a life-endangering situation."
The Cartagena Declaration on Refugees calls for improved "protection afforded to refugees, safeguarding their human rights and implementing projects aimed at their self-sufficiency and integration into the host society". In addition, it asks for a study on the "possibilities of integrating [persons with disabilities] into the productive life of the country by allocating to the creation or generation of employment the resources made available by the international community through UNHCR, thus making it possible for refugees to enjoy their economic, social and cultural rights.