POST 17 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
by Catherine Warin, Expert, European Institute of Public Administration and Valeria Ilareva, Lawyer, Foundation for Access to Rights
The New Pact on Migration and Asylum has stirred criticism from civil society organisations sounding the alarm on the risks of human rights violations (see here or here). Academics have also pointed out how the new instruments amplify risks for violations (see e.g. about the Crisis Regulation) and how they are likely to create new obstacles to the effectiveness of the rights of asylum seekers, be it due to the complexities of the provisions on legal support or those of the Asylum Procedure Regulation.
Yet, references to vulnerability and injunctions to provide the vulnerable with special attention or assistance abound in the New Pact. The reform provides an opportunity for developing the ‘functional utility’ of the concept of vulnerability, i.e. its practical relevance for the protection of human rights and more specifically, here, its relevance for ensuring that the implementation of the New Pact is done in compliance with human rights. In this blog, first, we recall briefly the pre-existing applications of vulnerability in European asylum law, and next we look at how the New Pact addresses individual factors of vulnerability and the diversity of those factors. We then highlight, focusing on the example of gender, the contextual dimension of vulnerability, which the New Pact acknowledges to a certain extent. We conclude that the New Pact allows for a much-needed approach of vulnerability as both individual and contextual, i.e. an approach which identifies certain individual characteristics and certain contexts (or situations) in which those characteristics become factors of vulnerability. This is essential if we want the human rights of those concerned to be effectively protected.
Background: the increasing use of the concept of vulnerability in the case law on effective protection of asylum seekers and refugees
The ECtHR began using the concept of vulnerability in the early 1980s (Dudgeon ; see also Tomasi ). This concept is particularly relevant in international human rights law, which identifies weaknesses and threatened interests in need of specific protection – exactly what the Geneva Convention seeks to achieve by conferring protection on victims of persecution. In the field of asylum, in the 2011 MSS judgment, the ECtHR famously stated that asylum seekers constitute ‘a particularly underprivileged and vulnerable population group in need of special protection’. Tarakhel reaffirmed this, and distinguished between different degrees of vulnerability within this group, e.g. acknowledging the particular needs of children asylum seekers (pts. 118-119).
This approach was endorsed to a certain extent by the EU legislator: some provisions of the current Reception Conditions Directive (Articles 2(k), 21 and 22) and the current Procedures Directive (Recital 29 and Articles 15, 24 and 31(7)) require the special reception or procedural needs of vulnerable asylum seekers to be taken into account, translating into obligations for national authorities implementing those instruments. However, in the wake of MSS, the CJEU did not rush to embrace the concept of vulnerability. The term does not appear in N.S. and others, which concerns intra-EU transfers under the Dublin system, nor in Saciri, which established that EU law prohibits Member States from depriving an asylum seekers from minimum reception conditions.
It is only more recently that the CJEU started referring to vulnerability in its case law on asylum. Haqbin emphasized the vulnerability of a minor asylum seeker. Jawo taught us that beneficiaries of international protection ‘are typically vulnerable and uprooted’ and therefore should not be sent back to the Member State that has granted them this protection, if that were to lead to violations of Article 4 CFREU and of human dignity (paras 46 and 95; see also Ibrahim para 93). To assess the risk of such violations, the CJEU stressed the need to take into account the ‘particular vulnerability’ of the individual. The recent Changu judgment highlights the need to care for the special needs of vulnerable persons also in return procedures. The case law thus increasingly emphasises the need to take into consideration the vulnerability of asylum seekers and refugees and their corresponding special needs at all stages of the procedures, as paramount for ensuring respect and protection of their human dignity – in line with Article 1 of the CFREU – and to protect them from inhuman and degrading treatments – as per Article 4 of the CFREU.
Vulnerability as an operational tool in the New Pact
There is no definition of vulnerability in the New Pact instruments, but there is a consistent connection between the identification of vulnerability and the acknowledgement of special needs which the authorities must address. For instance, the Crisis Regulation requires particular attention to be paid to certain categories of third country nationals, especially minors under 12 and their families, and ‘vulnerable’ persons with ‘special procedural needs’ and/or special needs in terms of reception conditions. (Recital 49 and Art. 11(7); see also Recital 37 requiring particular attention for vulnerable persons during relocation operations). Similarly, Recital 18 and Art. 13(7) of the Asylum Procedure Regulation connect the need for special procedural guarantees to the existence of a vulnerability: staff must be trained to detect vulnerability signs of applicants who need special procedural guarantees, and must take into account the personal and general context, including vulnerability and special procedural needs. Article 20 of the Asylum Procedure Regulation then mandates an assessment of the need for special procedural guarantees ‘as early as possible after an application is made, ensuring that ‘visible signs, the applicant’s statements or behaviour, or any relevant documents’ are adequately considered. The Regulation creates a presumption that the latter might adversely affect the ability of the applicant to participate effectively in the procedure. This leads to exemptions from accelerated examination procedures or border procedures as outlined in Article 21 of that regulation, allowing for a more thorough evaluation of claims that may be influenced by gender-related factors.
A similar pattern appears in the new Reception Conditions Directive. In Recital 47, where national authorities are asked to have ‘due regard to the inherent vulnerabilities of the person as applicant for international protection’. The Directive (see Chapter IV, especially Article 24) then distinguishes between different kinds of vulnerabilities translating into ‘special reception needs’ (Art. 24) so that the persons identified as having those vulnerabilities are ‘more likely’ to have such needs (see also in the same vein Arts. 20, 23(4), 50 of the Regulation on Asylum and Migration Management (RAMM) and Recital 7 and Arts. 12(3) and 12(4) of the Screening Regulation). Across the various instruments of the New Pact, we thus find this notion that vulnerabilities must be proactively identified, and that when a vulnerability is detected, it obliges the authorities in all procedures to recognize and adjust to the corresponding needs of the person.
The operational implications of detecting vulnerabilities are amplified by the many connections between the different instruments of the New Pact. For instance, the Screening Regulation (Articles 12(5), 17(1) e) and 18) provides that the elements collected during the preliminary vulnerability check may then be re-used for the vulnerability assessments foreseen in the new Reception Conditions Directive and in the Asylum Procedure Regulation. The RAMM (Article 50) provides for exchange of information on vulnerability for the purpose of providing medical care, which is part of the set of rights which Article 22 of the new Reception Conditions Directive confers on asylum seekers. The results of the preliminary vulnerability check (during the screening phase) may be used for assessing vulnerability in the meaning of the new Reception Conditions Directive and of the Asylum Procedure Regulation (Arts. 12(5), 17(1) e), and 18 of the Screening Regulation). There is an effort from the legislator to ensure some consistency in how vulnerabilities are addressed in the different stages of the procedures established by the New Pact.
The detection of vulnerability thus triggers several legal obligations, translating into practical and operational consequences. Which makes it all the more important to know what ‘vulnerability’ means.
Individual vulnerability and vulnerability by categories
The absence of a definition of vulnerability in the New Pact is counterbalanced by the inclusion of categories – and lists of categories – of vulnerable persons. The listings are not fully consistent – not between instruments, not even within a single instrument. Take the preliminary checks in the Screening Regulation. Article 12(3) providing for the preliminary ‘vulnerability check’ requires the identification of third country nationals who might be ‘a stateless person, vulnerable or a victim of torture or inhuman or degrading treatment, or having special needs’ within the meaning of other instruments of the New Pact. The list is complemented with Recital 38 of the same regulation, where vulnerable profiles are listed in more detail, including pregnant women, elderly, single parent families, disabled, traumatized or unaccompanied minors. The list begins with ‘such as’ and is therefore an open list. So, the binding provision specifically stresses certain types of vulnerability; and the recital provides a much broader – and not finite – pool of vulnerability factors. This list is often echoed, although not mirrored exactly, in other instruments of the New Pact.
Indeed, some forms of vulnerability are given more attention than others. Children are systematically mentioned as vulnerable persons, which is arguably the result of years of CJEU case law on the rights of the child. The Court has stressed that Article 24 of the Charter integrates the International Convention on the Rights of the Child (CRC) into EU law (case V.M.A. , para 63) and that the EU’s asylum system must comply with those international and EU standards on children’s rights. Both the CRC and Article 24 are cited several times (e.g. Recital 23 of the Procedure Regulation, Recital 15 of the Qualification Regulation) and several provisions state the obligation to take into consideration the best interests of the child (Art. 13 of the Screening Regulation; Art. 22 and 23 of the Asylum Procedure Regulation; Art. 20(5) of the Qualification Regulation).
Overall, guarantees for minors are more detailed than in the previous version of the CEAS. Article 23 of the RAMM provides an enriched list of guarantees for minors; notably, the list of factors to be considered for determining the best interests of the child has been expanded (from four factors in Art. 6(3) of the Dublin III Regulation to six in Art. 23(4) RAMM). There are also detailed procedural guarantees for minors, and even more specifically for unaccompanied minors in the Asylum Procedure Regulation (Art. 22 and 23). Of course, these will work only if children are actually identified as children: Recital 36 of the Asylum Procedure Regulation acknowledges the problem of disproportionate age assessment procedures, but the co-legislators have not come up with any solutions to bridge the huge gap between theory and practice in this respect (see Lyra Jakulevicenie’s blog on the Screening Regulation). Also there is a persisting possibility to detain minors, though as a measure of last resort, ‘after detention is assessed to be in the best interests of the child’ (Recital 65 of the RAMM, Recitals 11 and 40 of the Screening Regulation, Art. 13 of the new Reception Conditions Directive) – so that even minors being recognised as vulnerable in all instruments of the New Pact are not fully shielded from extreme measures such as deprivation of liberty.
Less consistent attention is given to other forms of vulnerability such as statelessness. Nonetheless, the explicit mention of this category is welcome as this form of administrative vulnerability is often fully overlooked. It is important that it is listed as a vulnerability factor in the Screening Regulation, as this will (hopefully) facilitate applications for recognition of statelessness as per the relevant Convention – even though this is not expressly foreseen in the New Pact.
While we cannot examine here in detail the provisions on each vulnerable profile present in the New Pact, we want to go beyond the analysis of the ‘lists’ of such profiles, and emphasise the efforts that were made to reflect not only the individual dimension of vulnerability, but also the contextual dimension of this concept: vulnerability depends not only on characteristics inherent to a person, but also on the context. For this, we will scrutinise the increased account taken of sex and gender as vulnerability factors, with the potential for a more inclusive and sensitive framework for individuals seeking protection.
The contextual dimension of vulnerability: the example of gender
The provisions on gender in the New Pact also bear the mark of an international human rights treaty: while the Istanbul Convention is not expressly mentioned in the New Pact, the CJEU has already expressly indicated that EU asylum law must now be interpreted and applied in compliance with this treaty, to which the EU has acceded (see Intervyuirasht organ na DAB pri MS (Femmes victimes de violences domestiques), paras 46 and 47) and further developments in this area are to be expected. The gender-sensitive approach is also evident in various aspects of New Pact, including the development of gender-sensitive procedures, the consideration of special reception needs, and the recognition of gender-based violence as a form of persecution.
Gender as a vulnerability factor in the context of procedures: the development of Gender-Sensitive Procedures
The Asylum Procedure Regulation elaborates several critical measures to enhance the gender sensitivity of asylum processes. The referral mechanism to a specialist addressing the needs of the vulnerable persons required under Article 20 of the Asylum Procedure Regulation prioritises cases where there are indications that applicants might have been ‘victims of torture, rape or another serious form of psychological, physical, sexual or gender-based violence’. Since it leads to exemptions from accelerated examination procedures or border procedures as outlined in Article 21, it allows for a more thorough evaluation of claims that may be influenced by gender-related factors. Furthermore, Article 13 on personal interviews requires the determining authority to ensure that the interviewers and interpreters are of the sex that the applicant prefers, ‘where requested by the applicant and where possible’, ‘unless it has reasons to consider that such a request does not relate to difficulties on the part of the applicant to present the grounds of his or her application in a comprehensive manner’. This shows that (gender) vulnerability is contextual: it is taken into account not in general, but in so far as it makes it more difficult to exercise one’s procedural rights and ultimately one’s right to asylum.
Gender-related vulnerabilities as grounds for Special Reception Needs
Article 24 of the new Reception Conditions Directive states that one of the categories of applicants with special reception needs are ‘persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, for example victims of gender-based violence, of female genital mutilation, of child or forced marriage, or violence committed with a sexual, gender, racist or religious motive’. Assessment of those needs should be conducted as early as possible after an application for international protection is made, and completed within 30 days. The assessment however is an ongoing process that is responsive even if needs become apparent at a later stage, which is particularly important in cases of gender-based violence since victims of rape tend to have major difficulties to tell their stories. In cases of gender-based violence and trauma, Article 28 emphasizes the importance of ensuring access to essential services, such as ‘medical and psychological treatment and care, including rehabilitation services and counselling where necessary, for the damage caused by such acts’. The New Pact thus also acknowledges that there is an obligation to protect and even to restore the mental and physical health of those asylum seekers who have been victims of gender-based violence.
Recognition of Gender-Based Violence as a Form of Persecution
The new Qualification Regulation, in the spirit of the recent case law of the CJEU, reflects the growing consensus within the EU regarding the need to protect individuals from gender-based violence and to ensure that such claims are adequately addressed within the asylum framework. In the case of WS, the applicant from Turkey had been a victim of domestic violence in the context of a forced marriage and at risk of an ‘honour’ killing by her biological father and her former husband after she left and divorced the latter. The Court concluded that women may be regarded as belonging to a ‘particular social group’, within the meaning of Article 10(1)(d) of the Qualification Directive, where it is established that, in their country of origin, they are, on account of their gender, exposed to physical or mental violence, including sexual violence and domestic violence (para 57).
In case K and L, the CJEU ruled that women who share as a common characteristic the fact that they genuinely come to identify with the fundamental value of equality between women and men, depending on the circumstances in the country of origin, may be regarded as belonging to ‘a particular social group’, constituting a ‘reason for persecution’ within the refugee definition. In the judgment of 4 October 2024 in Joined Cases AH and FN, concerning asylum seeking women from Afghanistan, the Court took into account the context of cumulative discriminatory measures against women imposed by the Taliban regime since 2021. It concluded that the level of seriousness of the situation in the country of origin is sufficient to presume that women in Afghanistan belong to a “particular social group” as a reason for persecution, without a need to prove further individual circumstances than their nationality and gender.
Thus, the innovations in the Pact seem to codify the achievements of the case-law of the CJEU. Along these lines, Recital 40 of the Qualification Regulation states that it is necessary to introduce a common concept of the persecution ground ‘membership of a particular social group’. It further elaborates that for the purpose of defining a particular social group, issues arising from an applicant’s sexual orientation or gender, including gender identity and gender expression, should be given due consideration in so far as they are related to the applicant’s well-founded fear of being persecuted. Applicants with diverse sexual orientations, gender identities, gender expressions and sex characteristics (SOGIESC) are also recognized as having special needs, especially in the Qualification Regulation. Therein, membership of a particular social group includes membership of a group based on the common characteristic of sexual orientation, while it contains an innovative reference to ‘gender expression’ for the first time (Art. 10). It is important to note that asylum seekers cannot be expected to hide their identity in order to avoid persecution (Art. 10(3)), this being in line with the CJEU’s judgment in X, Y and Z. The existence and application of criminal laws which specifically target lesbian, gay, bisexual, transgender and intersex persons, can mean that those persons are to be regarded as forming a particular social group (Recital 41). Here, too, assessing the need for protection is a matter of combining a particular individual characteristic with a specific context where that characteristic becomes a vulnerability.
The contextual understanding of vulnerability thus allows to make sense of the abundant and uneven references to vulnerability in the various instruments of the Pact. It allows to understand, for instance, why stateless persons are mentioned as vulnerable procedurally, but are not acknowledged in the Reception Conditions Directive: someone who is stateless is likely to stumble upon procedural difficulties (such as proving one’s country of origin) whereas being stateless does not particularly translate into any special needs in terms of reception conditions. Conversely, not all vulnerabilities translate into procedural vulnerabilities: Article 8 of the Asylum Procedure Regulation provides that information documents prepared by the EUAA take into account certain vulnerabilities such as those of minors or disabled applicants. Here, the purpose is to ensure participation in the procedure. This explains why some categories of vulnerabilities are emphasized, namely those associated with more difficulties to understand the procedure. On the contrary, gender or statelessness are not so relevant in this context. Someone who is vulnerable during the screening process is not necessarily vulnerable with regard to reception conditions or procedure, but of course there are connections between those various contexts. The degree of vulnerability of a person can also vary across the process (from preliminary screenings to the asylum procedure itself, and sometimes also up to a return procedure). Reading the New Pact in the light of this allows for responding to the needs of vulnerable persons in the various stages of the procedures.
Conclusion: « We will take a human and humane approach. »
This statement of the President of the European Commission does not have to remain an empty promise. Authorities in charge of implementing the New Pact need to be aware that the identification of vulnerabilities should take place as early as possible. Thereafter, identification should be undertaken proactively, not as a one-off procedural step, but a process that is applied throughout all steps of accessing, qualifying for, and enjoying asylum (or being returned). In each stage, authorities should take into account individual characteristics and whether those, in a given context, translate into vulnerabilities. Reading the New Pact in line with the case law of the CJEU, the Charter of Fundamental Rights, and international human rights instruments, entails the acknowledgement of the individual and contextual dimensions of vulnerability. This allows in turn for adequate responses to special needs, and ultimately effectiveness of fundamental rights, including the right to asylum as well as the full protection of human dignity.