Presenting a paper on ‘Vulnerability in the real risk assessment under Article 3 ECHR’ at the 7th Refugee Law Initiative Conference in London on 23 June 2023

Monika Mayrhofer

On 23 June 2023, Margit Ammer and Monika Mayrhofer presented a paper on ‘Vulnerability in the Real Risk Assessment under Article 3 ECHR/Qualification Criteria of Subsidiary Protection: A contribution to more fairness and equality in decisions on international protection? An Austrian Case Study’ at the 7^th Refugee Law Initiative (RLI) Conference in London. The RLI annual conferences provide a forum for ‘decision-makers and practitioners, policy-makers, academics and students to share, discover and debate the latest thinking and developments in the refugee protection field.’[1] The 2023 conference was dedicated to the theme ‘Inequality and Fairness in Refugee Protection’ and asked ‘how law and policy can address the profound challenges of inequality and unfairness experienced by refugees and other displaced persons in many parts of the world.’[2] Margit Ammer and Monika Mayrhofer’s contribution, presented as part of a panel on ‘European Human Rights Law, Inequality and Protection Seekers’, attempted to answer this question by focusing on the use of the concept of vulnerability in the Austrian asylum process.

In doing so, the presentation gave insights in first results of a case study which was conducted in the framework of the research project ‘The concept of vulnerability in the context of human rights’ (P 32130-G31) funded by the Austrian Science Fund (FWF). Starting point for this case study was the observation that the concept of vulnerability is increasingly used by Austrian courts in asylum procedures when assessing eligibility for international protection (refugee status, subsidiary protection) although qualification criteria neither in Austrian asylum law nor in EU Qualification Directive refer to the concept.

Against this background, this presented paper analysed the application of the vulnerability concept in case law of the Austrian appellate court on subsidiary protection. Based on an analysis of 387 decisions containing rich engagement with vulnerability in the legal reasoning as well as all relevant decisions of Austrian supreme courts (VfGH, VwGH) and supplemented by interviews with legal stakeholders, the paper discussed for which persons, groups and situations the court uses the concept of vulnerability, how it embeds the concept in its real risk assessment, and which consequences it attaches to the usage of the concept. In furthermore reflected on the question whether the concept leads to more fairness and/or equality, as the concept of vulnerability has been associated with more substantive equality by some scholars.

The presentation came to the conclusion that in the context of the real risk assessment in particular children, families with children, (pregnant) single women (with children), persons with health issues and persons with multiple vulnerabilities are framed as vulnerable. This, however, does not entail new legal obligations as the issues now framed as vulnerable had to be taken into account before as well. Thus, it places a marker on certain characteristics/conditions, but does not relieve from the requirement of assessing individual circumstances. From a discourse-analytical point of view the introduction of the concept of vulnerability in the legal discourse is however problematic, as it is a stigmatising concept and stereotyping and stigmatisation of certain groups and persons should be avoided from a human rights point of view (e.g. CEDAW, CERD, CRPD). It might also contribute to a gendered racialization of the legal discourse.

Thus, the law and policies should not rely on the usage of the concept of vulnerability in order to address the profound challenges of inequality and unfairness experienced by refugees and other displaced persons as it has problematic implications. There is also no need to rely on loaded terminology such as vulnerability, as the existing legal framework/case law already provides adequate basis for taking into account ‘individual position and personal circumstances of the applicant, including factors such as background, gender and age…’ (Art. 4(3) EU QD).

Please find the slides for the presentation here.

Please find the programme of the conference here.

Notes:

[1] See https://rli.sas.ac.uk/rli-annual-conference (accessed on 28 June 2023).

[2] See https://rli.sas.ac.uk/rli-annual-conference/seventh-annual-conference (accessed on 28 June 2023).