Presenting Results of Vulnerability Project at International Conference of the Canadian Association for Refugee and Forced Migration Studies (CARFMS23)

Monika Mayrhofer

From May 29, 2023 – May 31, 2023, the 15^th Annual Conference of the Canadian Association for Refugee and Forced Migration Studies, CARFMS23, will take place at the York University in Toronto/Canada. CARFMS23 will particularly focus on ‘Racism, Rights, and the Responsibility to Protect’. Based on the results of the case study on the role of the concept of vulnerability in Austrian asylum procedures, which is conducted under the direction of Margit Ammer as part of the research project ‘The concept of vulnerability in the context of human rights’ (P32130-G31), Margit Ammer and Monika Mayrhofer submitted a proposal for a presentation of first results of the case study to the organizers of CARFMS23. The proposed presentation was accepted and will be part of a panel on 31^st May 2023, which focuses on ‘Understanding Vulnerability in Diverse Contexts’.

The abstract of the presentation reads as follows:

Vulnerability in the non-refoulement assessment under Article 3 European Convention on Human Rights (ECHR): Enhancing or hindering equality in decisions on international protection? An Austrian case study’

Austrian asylum procedures, Austrian courts have increasingly employed the concept of vulnerability in their real risk assessments under Article 3 ECHR, and consequently also in the assessments relating to subsidiary protection. [1] Thus vulnerability has entered qualification criteria of international protection even though the criteria in Austrian asylum law or in the EU Qualification Directive do not contain this concept. Yet, ECtHR jurisprudence on Article 3 ECHR deploys vulnerability (also) in the non-refoulement context.

While in scholarly research the concept of vulnerability has been hailed as a means to achieve more substantive equality, also for asylum seekers, others have criticised the concept for its vagueness and inconsistencies in the ECtHR’s case law leading to legal uncertainties. Apart from that, negative side effects of employing the concept to asylum seekers such as stereotypical representations, stigmatization – including the invoking of racist narratives – and exclusionary effects have been pointed out.

Against this background, this paper analyses the application of the vulnerability concept in case law of the Austrian appellate court on subsidiary protection. Based on an analysis of approx. 300 decisions containing rich engagement with vulnerability in the legal reasoning and supplemented by interviews with legal stakeholders, the paper explores 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 this way the proposed paper will offer a critical perspective on whether the employment of the vulnerability concept leads to the advancement and better protection of human rights, including whether it advances equality, in particular racial equality, of those who seek asylum in Austria.

For general information on the conference follow this link.

Please find the program of the conference here.

Notes:

• [1] Under Austrian asylum law, the real risk of a violation of Article 3 ECHR leads to the granting of subsidiary protection.