The Juridification of ‘Vulnerability’ through EU Asylum Law: The Quest for Bridging the Gap between the Law and Asylum Applicants’ Experiences

Abstract

‘Vulnerability’ is flooding EU asylum law. Based on the analysis of the ECtHR’s case-law in deportation cases, the EU Directives’ provisions towards ‘vulnerable’ asylum applicants, and their implementation in the domestic legislations and practices of two EU member states that were studied as part of the VULNER project (Belgium and Italy), this contribution establishes a typology of the various legal and bureaucratic functions that ‘vulnerability’ has received in the EU. It also reflects on the ‘juridification’ trend at play, the implementation challenges that have emerged as a result, and how they are currently being addressed in the EU.

Vulnerability’s Legal Life: An Ambivalent Force of Migration Governance

“…Vulnerability has been used to refer to the circumstances of certain groups, including ethnic minorities (especially Roma), persons in detention, children, persons living with HIV, victims of crime, the accused in criminal proceedings, and, more recently, asylum seekers (Peroni and Timmer, 2013), fomenting the emergence of a by and large categorical approach that reifies individual experiences into sorts of vulnerabilities that are essentially ‘group-based’ (Baumgärtel, 2020, p. 17). The reasons why these groups have been considered ‘vulnerable’, ‘particularly vulnerable’ or even ‘extremely vulnerable’, are connected with historical prejudice or long-standing social disadvantage, state control, or characteristics considered inherent or typically representative of the common experience of the members of the group (Timmer, 2013) – sometimes captured in EU law or in international regulations (Pétin, 2016; Leboeuf, 2022). This has led the Court to introduce distinctions between objective and subjective circumstances, and individual versus group conditions (Al Tamimi, 2016).…”

“…Emphasising lived experiences and considering vulnerability as not ‘naturally occurring’ but politically created/compounded, the authors of this Special Issue critically engage with the concept (as/when embedded in law) in a nuanced and constructive manner. Legal vulnerability – that is, the vulnerability that is recognised and regulated in and by law – provides an opportunity to apprehend the richness of individual/situational positions, incorporating real-world empirics into the interpretation of migration norms (Leboeuf, 2022).…”

“…Furthermore, it is also contested – vulnerability is paradoxical, described as both universal and particular, individual and categorical, inherent and situational, and as contributing to the normalisation of oppression, while also offering a means of liberation. The concept, and the tension lying at its core, have made their way into legal and policy instruments of migration governance in incoherent fashion, whether as part of administrative detention regimes (Pétin, 2016) or asylum reception and qualification systems (Leboeuf, 2022), also providing a basis for recent decisions of international Courts and Treaty bodies (Peroni and Timmer, 2013; and, respectively, Hudson, Baumgärtel and Ganty, and Ippolito, in this issue) as well as domestic judgments (Wallbank and Herring, 2014; and, respectively, Benslama-Dabdoub, Grundler, and Ippolito, in this issue). However, the crucial role of migration law and policy structures in creating or exacerbating vulnerability is often overlooked (for notable exceptions: Sözer, 2020; Da Lomba and Vermeylen, 2023).…”

The Vulnerability of Young Refugees Living in Reception Centres in Luxembourg: An Overview of Conditions and Experiences across Subjective Temporal Imaginaries

“…Vulnerability has become a key concept in discourses, legislation and policies on international protection and reception of refugees (Freedman 2019;Smith and Waite 2019;Sözer 2019Sözer , 2020. Assessing and addressing vulnerability among forced migrants to provide special provisions and guarantees to 'vulnerable refugees' is emerging as an essential component of the international protection procedure and relative legislation at the international (i.e., UNCHR) 1 and EU level (i.e., EU Directives on asylum procedures and on reception conditions) 2 (Freedman 2019;Leboeuf 2022). Within this system, the notion of vulnerability is then conceived as a tool to safeguard services and rights of forced migrants at higher risk of danger (Flegar 2018;Pétin 2016).…”