Muraszkiewicz Julia presented a presentation entitled ‘Defining vulnerability to understand the obligations of States towards persons fleeing conflict’. The same was presented at the Spaces and Places of the Journey to the UK, Lincoln, 10 April 2017 event. This is part of the Crisis team ongoinng work in the field of migration.

1. DEFINING VULNERABILITY TO
UNDERSTAND THE
OBLIGATIONS OF STATES
TOWARDS PERSONS FLEEING
CONFLICT
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4. Persons fleeing conflict and who may seek asylum are, as suggested by
Mikolajczyk:
‘often people of double or even multiple vulnerability – not only
asylum seekers in a foreign country, but also suffering from
psychological and health problems. Some of them find themselves
victims of various types of violence.’
VULNERABILITY IN THOSE FLEEING

5. • Can vulnerability be defined?
• Do we consider it when reflecting whether to grant protection?
• What does it mean practically?
GOAL FOR TODAY…

6. WHAT IS VULNERABILITY?
• The meaning is imprecise, contested…
• So how are Member States to comply with the obligation to identify applicants
and what mechanisms should they even be using?

7. WHAT IS VULNERABILITY?
• ‘[r]oughly, it indicates that an individual or group is thought to have a particular
status that may adversely impact upon their well-being, and that this implies an
ethical duty to safeguard that well-being because the person or group is unable
to do so adequately themselves.’ - Wrigley and Angus
• In M.S.S. v Belgium and Greece the court saw Roma as vulnerable because of
past disadvantages and prejudice…here the court also recognised asyum
seekers as a vulnerable group
• The likelihood of finding one uniform definition is probably impossible
• It is not static

8. WHAT IS VULNERABILITY IN THE EU
• Article 21 of the EU Recast Reception Directive (2013/33/eu) states:
‘Member States shall take into account the specific situation of vulnerable persons
such as minors, unaccompanied minors, disabled people, elderly people, pregnant
women, single parents with minor children, victims of human trafficking, persons
with serious illnesses, persons with mental disorders and persons who have been
subjected to torture, rape or other serious forms of psychological, physical or sexual
violence, such as victims of female genital mutilation, in the national law
implementing this Directive.’
Contrast with
• Article 3(9) of the Return Directive (2008/115/eu) states:
‘vulnerable persons’ means minors, unaccompanied minors, disabled people,
elderly people, pregnant women, single parents with minor children and persons
who have been subjected to torture, rape or other serious forms of psychological,
physical or sexual violence.

9. VULNERABILITY AND PROTECTION
Refugee: Any person who owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership or a particular social group or
political opinion is outside the country of his nationality and is unable, or owing to
such fear, unwilling to avail himself of the protection of that country.
Persons seeking subsidiary protection: Person eligible for subsidiary protection’
means a third country national or a stateless person who does not qualify as a
refugee but in respect of whom substantial grounds have been shown for believing
that the person concerned, if returned to his or her country of origin, or in the case
of a stateless person, to his or her country of former habitual residence, would face
a real risk of suffering serious harm as defined in Article 15…

10. VULNERABILITY AND PROTECTION
Vulnerability is not an element that is taken into account when deliberating the
standards for qualification of international protection; a noteworthy question is
whether we should strive to expand the criteria.
However…vulnerability has become a lens through which we can look at the way
States treat asylum seekers. Ill treatment caused in reception centre for example,
will look bigger through the vulnerability lens

11. VULNERABILITY IN PRACTICE & THE EU
When a person is vulnerable and they are found to have special needs, their special
needs require consideration, e.g.,
Directive 2013/33/EU Recast Reception Directive
• for victims of torture and violence Member States under Article 25 of the Recast
Directive shall ensure that they ‘receive necessary treatment for the damage
caused by such acts, in particular access to appropriate medical and
psychological treatment or care.’
In the asylum field we are seeing that related asylum instruments are taking note of
vulnerability…however, for the EU vulnerability is not enough. To be entitiled to
additional measures applicants must be vulnerable and in need of special gurantees
in order to benefit from the rights in the Directive.

12. VULNERABILITY IN PRACTICE & THE EU
In reality, no detail, no legal certainty….
Directive 2008/115/EU Returns Directive
• the “special needs” of vulnerable persons are “taken into account” during any
voluntary departure period (Art 14), but nothing is said about what such needs
might be, nor how this is to be done in practice.
• Article 16 of the Return Directive addresses conditions of detention and states
that ‘Particular attention shall be paid to the situation of vulnerable persons.
Emergency health care and essential treatment of illness shall be provided.’
Aside from the emergency health care and essential treatment it is unclear what
particular attention means.

13. FINAL POINTS
There are references to vulnerability in legislation and jurisprudence at European
level but it still lacks a unambiguous definition. Thus we have problems with
asserting legal certainty. One of the greatest challenges of is to define ‘vulnerable
irregular migrants’ with a sufficient degree of precision to allow the development of
international consensus. Once we can define the group of people we can be more
demanding in terms of MS obligation.

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