I. The Multiple Legal Meanings and Functions of “Vulnerability”

“Vulnerability” is not a fully-fledged, legally binding concept that produces legal obligations that can be clearly identified. It is, nevertheless, increasingly commonly mobilized in European asylum and migration law, where it manifests itself in different ways. First, it serves as a flexible—and often implicit—tool of interpretation that guides the individualized assessment required to implement the law in specific cases by drawing attention to disadvantaged positions. Second, it supports the establishment of a legal obligation to address the special needs that some groups of asylum seekers may have, pending a decision on their application for asylum.

The first function of “vulnerability” is well exemplified in the ECtHR case law on migrants and asylum seekers, which concerns claims of violations of Article 3 ECHR. In those cases, “vulnerability” assessments serve to identify whether the severity threshold required to find inhumane and degrading treatment was met. Such assessments are most often implicit, for example, when determining the level of risk of torture and inhumane and degrading treatment in the home country. Evaluating exposure to a risk of ill-treatment requires that the applicants’ individual profiles be considered alongside other relevant circumstances that contribute to exposing them to such a risk—including age, ethnicity, etc.—thereby evaluating how vulnerable they are.

In some of these cases, the ECtHR makes explicit reference to the applicant’s vulnerability to support its finding of an Article 3 ECHR violation. What these few cases have in common is that they concern applicants who are deprived of their liberty,Footnote ⁹ or who complain of inadequate state assistance pending the examination of their asylum applicationFootnote ¹⁰ or the complete lack thereof.Footnote ¹¹ In the former cases, the vulnerabilities identified relate to the applicants’ age—minors—and to their health. In the latter cases, emphasizing the applicants’ “vulnerability” served to justify expanding the scope of Article 3 ECHR in such a way that it requires states to establish a reception system for all asylum seekers, irrespective of additional vulnerabilities.Footnote ¹² The Court famously underlined that it “attaches considerable importance to the applicant’s status as an asylum-seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection.”Footnote ¹³

In the ECtHR case law on asylum and migration, the explicit assessment of the applicants’ “vulnerability” is thus limited to some specific cases that concern individuals who are more dependent upon the state because of the coercion it exercises over them either directly, through the deprivation of liberty, or indirectly, through the legal constraints placed upon asylum seekers who do not have a residence permit or access to the labor market pending a decision on their application for asylum. In most cases, “vulnerability” comes across as an integral—and often implicit—part of legal reasoning. When used explicitly, it serves to refer to and highlight positions of increased weakness that must be considered when identifying the extent of state obligations in individual cases.

Some EU directives take a similar legal approach to “vulnerability,” as they require EU member states to consider the “vulnerabilities” faced by some migrants and asylum seekers when implementing them. The Return Directive requires EU member states to take the specific needs of vulnerable migrants into consideration when implementing return procedures.^{Footnote 14} The Qualification Directive requires that the rights of international protection beneficiaries be implemented when considering the “specific situation” of vulnerable persons.Footnote ¹⁵

But other EU directives take a different legal approach to “vulnerability,” which illustrates its second legal function. The Asylum Procedures Directive (APD)Footnote ¹⁶ and the Reception Conditions Directive (RCD)Footnote ¹⁷ set an obligation to address the special procedural and reception needs of “vulnerable” asylum seekers. Article 15 APD requires that due consideration be given to the special needs of “vulnerable” asylum seekers when conducting interviews, and Article 31(7)(a) RCD allows the EU member states to prioritize the examination of the applications introduced by vulnerable asylum seekers. Article 21 RCD requires the EU member states to assess the “special reception needs” of “vulnerable” asylum seekers. Article 17 RCD requires the EU member states to consider these needs when identifying the services that asylum seekers should benefit from in order to guarantee them adequate living standards, pending a decision on their application. Finally, Article 11 RCD extends that obligation to asylum seekers who are detained and requires “regular monitoring and adequate support taking into account their particular situation, including their health.”Footnote ¹⁸

Neither directive specifies clearly what the “special needs” are, nor who should be considered “vulnerable.” Rather, they opt for an open-ended and category-based approach, which focuses on personal characteristics—such as being a minor, a pregnant woman, a victim of torture and violence, etc. These categories are listed by way of example, and not in an exhaustive way.Footnote ¹⁹ The list of examples can vary slightly, depending on the instrument in question. The RCD offers the most elaborated list of examples, which includes:

No matter which legal approach to “vulnerability” is adopted, however, a similar observation can be made: There is no clear and shared understanding in law of what “vulnerability” means and implies. The legal definitions, consequences, and concrete implications of “vulnerability” remain unclear: Who are these “vulnerable” asylum seekers, refugees, and migrants? What vulnerabilities do they face? How should their vulnerabilities be identified, assessed, and addressed? How and to what extent does the finding that a refugee, asylum seeker, and/or migrant finds themselves in a particularly vulnerable position affect a state’s obligations toward them? Section II shows how empirical knowledge can help in addressing these challenges.

II. The Need for Improved Legal Conceptualizations of “Vulnerability”

The proliferation of references to “vulnerability” in asylum and migration law can be connected to broader societal developments, including the mounting success of feminist theories of equality, such as the ethics of care. The ethics of care advocate attention to and solicitude for others as the main ethical paradigm.Footnote ²¹ They lay the groundwork for a theory of justice, which considers and accounts for the “vulnerabilities” of each member of society. From that perspective, “vulnerability” provides a moral justification for legal and policy prescriptions aimed at correcting some social disadvantages and weaknesses, with a view to guaranteeing equality.

According to Fineman, for example, “vulnerability … is a powerful conceptual tool with the potential to define an obligation for the state to ensure a richer and more robust guarantee of equality.”Footnote ²² In Fineman’s theory of “vulnerability,” the emphasis should be on those who find themselves in positions of “vulnerability” that affect their abilities to develop their own resilience strategies.Footnote ²³ From that theoretical perspective, state action should aim at strengthening resilience and at putting individuals in a position where they can lead their own independent lives.^{Footnote 24}

But legal concepts and categories require—relatively—clear definitions leading to—relatively—clear legal consequences; they must be able to be operationalized in similar ways by the various state actors involved. If not, they risk generating uneven, if not arbitrary, state practices that are based on each state actor’s conception of “vulnerability.” If “vulnerability” is bound to have a meaningful role in asylum and migration law, then it needs to be clearly defined and conceptualized. As argued by Carlier, a failure to do so might even have counter-productive effects from a human rights perspective, as it might “substitute human rights with a vague charity, and weaken [their legal effects].”Footnote ²⁵ In other words, the introduction of vague notions into human rights law may have the effect of lessening their legal status to mere moral obligations the fulfillment of which depends on the discretionary will of state authorities.

An empirical study of migrants’ and asylum seekers’ experiences of vulnerability could produce scientific knowledge that would support legal developments and reasonings that counter such risks. It could provide a deeper understanding of how migrants experience their own vulnerabilities, and of how these experiences are impacted in turn by the state measures adopted to address them. It could also allow legal scholars and practitioners to better understand how migrants relate to and mobilize legal understandings of their vulnerability to support their own strategies.

It has actually become relatively common, in empirical research, to mobilize “vulnerability” as an analytical framework to reach a better understanding of migrants’ experiences—especially in studies conducted by international organizations such as the International Organization for Migration (IOM).Footnote ²⁶ By improving knowledge of migrants’ main life challenges, this kind of empirical research provides background information that can guide legal reasoning. As argued by Baumgärtel, the empirical literature can be a useful resource for a more consistent consideration, in legal reasoning, of the “cluster of objective, socially induced, and temporary characteristics” that contribute to produce migrants’ vulnerabilities.Footnote ²⁷

To support legal reasoning, such empirical knowledge should also help in reaching a better understanding of how vulnerabilities are experienced in relation to the law: Experiences of vulnerability are continuously shaped through social interactions and, thus, also through the encounters between migrants and the state actors in charge of implementing the law. Moreover, migrants are not passive in the face of legal norms, which they seize and mobilize in the exercise of their agency.Footnote ²⁸

The principal aim of the VULNER project is to have a deeper and more systematic look at the complex relationship between experiences of vulnerability and the law, with a view to ultimately supporting the emergence of legal conceptualizations and reasonings that account for migrants’ experiences. We therefore make use of a three-tier approach that aims to combine and ultimately integrate legal and empirical perspectives. In the initial research phase, which is complete at the time of writing, we studied the legal framework and the implementation practices in each of the countries that fall within the VULNER project’s geographic scope.Footnote ²⁹ The objective was to reach a better understanding of how the somewhat vague injunction to consider the specific needs of vulnerable asylum seekers is translated into domestic legislation and practices. Drawing inspiration from the anthropology of bureaucracies,Footnote ³⁰ we therefore combined a legal analysis of the domestic legal frameworks with interviews with decision-makers—social and aid workers, civil servants within asylum authorities, and asylum judges.

In the second research phase, which is ongoing, we are conducting ethnographic fieldwork among asylum seekersFootnote ³¹ in state-run reception centers and informal places where they meet, such as the central square of some Italian villages. The objective is to collect empirical data and evidence that will allow us to document and analyze the main life challenges that asylum seekers are facing, and how and to what extent these are shaped—and at times even produced—by law. In the third and last research phase, we will think back on the data collected and analyses made during the two phases to develop a critical perspective on the increased reliance on “vulnerability” in legal reasoning and to suggest ways to improve the quality of legal reasoning.

Figure 1 below illustrates the VULNER project’s overall methodological approach, and how the knowledge acquired at each research phase should relate to and feedback into an overall critical approach:

Figure 1. Studying the interactions between the legal and policy frameworks, implementation practices, and experiences of protection seekers.

I. Juggling Legal and Empirical Conceptualizations

It is often expected from legal research that it will contribute to more accurate legal conceptualizations through a more profound understanding of existing legal categories and their interpretation—especially when the research addresses cross-cutting concepts that guide legal reasoning in different contexts, such as “proportionality” or, as in the VULNER project, “vulnerability.” From that perspective, legal categories are essential to legal research. They allow lawyers to identify the applicable rules, to situate them within the multi-level legal system and interacting legal orders, and to evaluate them in terms of internal coherence and consistency. There can be no rigorous legal research without appropriate knowledge of existing legal categories, their definition and scope of application, their position within the legal system, how they interact with other norms, and their legal consequences.

Anthropology, on the contrary, seeks to reach a more profound understanding of human experiences in their manifold aspects. Anthropologists therefore put the perspective of the individuals and groups they are studying at the center of their research. As argued by Chatty, for example, one of the main contributions of anthropology to migration studies is to bring in the perspective and voices of the migrants.Footnote ³³ For that reason, legal anthropologists are wary of invoking legal categories as a constitutive element that guides the scope of their research and plays a central role in the analysis.

In their anthropological work on the 2015 European refugee “crisis,” for example, Crawley and Skleparis warn against “categorical fetishism,”Footnote ³⁴ that is, the blind spots and misconceptions regarding migrants’ everyday realities that result from a focus on some groups that are defined on the basis of legal criteria—such as refugees or asylum seekers. Migrants’ experiences cannot be properly understood without first acknowledging the limitations of the legal categories in reflecting them. For example, when it comes to identifying the drivers behind migration movements, numerous empirical studies have shown that the distinction between “forced” and “voluntary” migration, which underlies the distinction between the refugee status and other humanitarian protection statuses, is indeed far from clear-cut: The decision to migrate rests on complex factors that mix elements of constraint and choice.Footnote ³⁵

These different research objectives are reflected in the conceptualizations that are produced, which pursue fundamentally different purposes. On the one hand, empirical conceptualizations often aim to document and reflect on the multiplicity of human experiences, including how these are produced through numerous and ever-evolving social interactions and power dynamics. The objective is to contribute to a better understanding of the complexities of the realities on the ground, as lived and experienced by the various actors involved. On the other hand, conceptualizations in legal research seek to establish elaborated but somewhat abstract categories, the intrinsic quality of which is assessed not only on the basis of their ability to reflect realities on the ground, but also in terms of internal coherence and consistency—do they preserve the unity of the relevant legal systems, and legal certainty? do they create the conditions for the law to be implemented in predictable ways?

These diverging approaches of legal and empirical conceptualizations quickly confront the researcher engaging in interdisciplinary research with a fundamental dilemma that relates to defining the research scope and the analytical angle: Should the research focus be defined with reference to existing legal categories so that the collected data can produce research results that fit back into legal reasoning, or with reference to empirical realities, so that it can produce research results that improve their understandings? Should the research material be analyzed from an internal perspective, thereby considering and contributing to legal conceptualizations—with their inherent limitations when it comes to reflecting empirical realities? Or should it be studied from an external perspective, in which legal norms and systems are approached as one set of human practices among many others?Footnote ³⁶

Answers to these questions will depend on the research objectives, and they will thus most likely vary depending on each researcher’s perspective and vision of the research results they would like to produce. For lawyers engaging in interdisciplinary research, the questions will include: Do they wish to analyze the law from a specific analytical angle—such as how it produces vulnerability—as is commonly the case in critical legal studies and, more recently, in new legal realism?Footnote ³⁷ Or do they wish to enrich legal reasoning and conceptualizations with a more thorough understanding of the context in which they are being applied? Or both?

The VULNER project opts to combine the two objectives, with the overall purpose of reaching a better understanding of the concrete effects of the increased focus on “vulnerable” migrants and refugees on the ground, while having a critical look at that trend. The proper identification of migrants’ experiences of vulnerabilities thus requires that we include an external analysis, whereby we identify the extent to which and how these experiences are also produced by the legal framework in place, based on the empirical data collected through ethnographic fieldwork. But there is not much legal interest in such external analysis if it merely highlights the consequences of migration control mechanisms on migrants—which can in any case be inferred, and of which most lawyers already have an overall sense, especially those who have experience in legal practice. A broader analysis that connects these findings with a study of how “vulnerability” is defined in law is thus also required to engage in interdisciplinary research that can improve legal reasoning—as is further detailed in Section D below.

The combination of the two approaches also generates challenges, however, as it requires entering into dialogue with research communities that have thus far remained very distinct and rather distant from one another, and that have developed different—and at times competing—understandings of and approaches to “valid” research methods and results.

II. Facing a Different Research Ethos

Empirical researchers attach great importance to the research methodology, which they expect to be clearly outlined and critically reflected upon. It is common for anthropologists, for example, to reflect on their own positionality in the field and how this may affect the data collection process.Footnote ³⁸ Moreover, empirical research often makes a clear distinction between the collected data and their analysis based on a theoretical framework that mobilizes empirical conceptualizations—which is also the reason why legal analysis tends to be perceived as one data point among others, even though its observation requires additional technical skills—with legal debates sometimes being viewed as mere technicalities that should not necessarily be delved into to produce adequate empirical findings.

In legal research, on the contrary, the methodology is often implied.Footnote ³⁹ It is very uncommon for lawyers to discuss it, in part because it is assumed that the reader is trained in law and has the required background knowledge. It is also very uncommon to include reflections on the researchers’ positionality, probably because of one of the foundational fictions of legal positivism: Legal science should be disconnected from political choices, and therefore the law should be treated as objective material that can be analyzed through objective tools leading to objective solutions—following a somewhat mathematical approach.

These various understandings of what research data are, and which research methodologies are valid result in additional challenges when discussing and presenting the research results: How to convince anthropologists of the value of a proper and rigorous legal analysis? How to convince legal audiences that studying the broader social context in which legal norms operate and are created is also useful to the legal analysis?

There is probably no other solution to these issues than being upfront regarding the research methods used, which should be detailed in greater length and detail than is usually the case in legal research, and on the added value of the legal analysis. In the first research phase of the VULNER project, for example, the legal manifestations and consequences of “vulnerability” in each country under study were analyzed with a view to reaching a better understanding of state practices that relate to the identification and assessment of vulnerabilities. This is a prerequisite for reaching a proper understanding of how public servants and judges seize and mobilize “vulnerability” when dealing with migrants and asylum seekers on a daily basis—which is a question that was studied through semi-structured interviews with them. To achieve transparency regarding methods, all of the VULNER research reports include a methodology section.

III. Juggling Research Temporalities

The last challenge is a practical one, which relates to different temporalities in the implementation of the research tasks. In legal research, the data collection process is relatively straightforward, as it can be done through desk research. A lawyer with adequate knowledge of the relevant legal databases and journals, and/or who has the adequate connections within courts and legal practitioners’ networks, will gain relatively easy access to the legal material that needs to be investigated. Most of the research time will thus be spent analyzing the legal material, and it is relatively easy to collect additional legal material should it be necessary to strengthen some points of the legal analysis. Hence, quite often the data collection and the data analysis phase are not clearly distinguished.

By contrast, anthropologists conduct ethnographic fieldwork, which requires them to immerse themselves in the groups or societies they are studying. Their objective is to collect empirical data not only through interviews, but also through casual encounters and observations—allowing for a deeper qualitative analysis than that which could be achieved through surveys. But gaining access to the field and the trust of the research participants so that they agree to open up is a major challenge. It can only be overcome by spending sufficient time in the field, thus affecting the amount of time that can be devoted to the data analysis.

This temporal dimension is important to consider when designing a research project, and even more so if deliverables are expected throughout the project duration. In the VULNER project, the solution was to start with a legal analysis, which is combined with semi-structured interviews with state actors in charge of implementing the relevant norms on a daily basis. This approach presented two advantages: First, the legal analysis could be refined from the outset, as the expertise of the actors interviewed allowed the researchers to identify the most important sources and to give more depth to their own legal analyses. Second, the preliminary contacts could be established in view of preparing the upcoming ethnographic fieldwork, especially with respect to fieldwork to be conducted in state-run settlements for asylum seekers.

I. The “Fuzzy” Law and Its Implementation

In her analysis of international criminal law, legal theorist Delmas-Marty argues that the multi-leveling of the legal framework through the development of supranational legal orders has given rise to increasingly “fuzzy” legal concepts.Footnote ⁴¹ She notes that international human rights law often produces overarching legal concepts—such as “fair trial” or “inhumane and degrading treatment,” etc.—that leave a relatively wide margin of appreciation to the legal actors who implement them in concrete cases on a daily basis. In their study of how international legal norms protecting women’s rights are implemented by local actors, legal anthropologists Levitt and Merry further argue that there is a “vernacularization” phenomenon at play as international legal standards are transformed through their integration into local practices, where they meet with broader social and institutional dynamics.Footnote ⁴²

Both theories share a focus on the legal and social transformations of supranational legal standards that result from their implementation in a local context that is driven by its own social, institutional, and legal dynamics. Legal research offers some tools to better understand these transformations through the study of domestic legal norms. Based on the analysis of legal sources, it can answer questions such as: How are international legal standards transposed into national law? How are they interpreted by domestic courts? How do they relate to other national legal norms, and, if there are conflicts, how are these managed by domestic legal actors?

But the legal research tools do not allow researchers to understand the law in its living dimensions. They do not encapsulate the practices of domestic actors, including how they make use of their margin of appreciation when mobilizing legal concepts to decide on concrete and individual cases. Such practices are often left in the dark, if not artificially presented as the result of an automatic thinking process broadly referred to as the “legal syllogism.” The proliferation of “fuzzy” legal concepts has the effect of giving a wider margin of appreciation to legal actors within the legal syllogism.

The collection of empirical data, by contrast, gives the means to zoom into the legal syllogism to better understand the various factors that influence it, and to better forecast its concrete effects.Footnote ⁴³ Such knowledge supports the development of legal thinking that incorporates an understanding of how international legal standards are transformed through their implementation, and which does not develop legal arguments and analyses that are disconnected from empirical realities on the ground.

The first research phase of the VULNER project, for example, shows that the rather “fuzzy” requirement to consider the vulnerabilities of asylum seekers, as it has emerged in the ECtHR case law and in EU asylum law, has two main practical effects. The first is a focus on immediate and practical needs, which are the easiest to identify, given the time constraints public servants are confronted with and the fragmentation of state intervention across different actors at different stages of the procedure—for example, at the registration of the asylum application, in the reception centers for asylum seekers, at the asylum interview, at the asylum hearing before the court, etc. The second effect is to grant to decision-makers a certain amount of leeway to make adaptations to existing rules when individual circumstances call for it—which is a practice that mainly benefits those applicants who manage to trigger feelings of compassion and, thus, also has an important emotional aspect.Footnote ⁴⁴

But anthropology is about more than providing the research tools to better understand empirical realities and, as lawyers often put it, discussing the “law in context”: Dissociating “law in the books” from “law in action” may not make much sense, as “law” is also produced in a given social context.Footnote ⁴⁵ As I show below, the knowledge produced in legal anthropology is also of direct relevance in identifying, discussing, and reflecting on the law’s driving logics and underlying tensions more broadly.

II. Revealing—and Questioning—the Underlying Social and Political Dynamics of Asylum and Migration Law

The translation of empirical realities into legal categories necessarily implies that these realities become encapsulated, that is, reduced to criteria that are relatively strictly defined in abstract ways through the legal text, and that therefore do not fully account for contextual specificities. This juridification process is not neutral; it results from implied political choices, power relations, and understandings of these realities. As argued by Barbou des Places, for example, the legal categorization of migrants is accompanied by restrictions on navigating among these categories and their corresponding rights and advantages in a way that also fits within the broader policy objective of increasing state control over migration movements.Footnote ⁴⁶ In her historical work on how the legal category of “refugee” is constructed over time, Akoka similarly notes major transformations, depending on the overall social and political context, that have culminated in our present-day focus on individualized circumstances throughout the refugee status determination procedure.Footnote ⁴⁷ This trend is also illustrated by the increased focus on “vulnerabilities,” the main legal effect of which is to guide the individualized assessment of the specific circumstances of the case—as shown above.

Studies in legal anthropology can thus contribute to a deeper understanding of the various underlying social and political realities that guide legal dynamics, in a holistic way that also considers how these realities are impacted in turn. For example, in his work on “humanitarian reason,” Fassin highlights the connection between the development of the welfare state and the increased use of humanitarian concepts to justify exercising control over people, as the objective of caring also legitimizes state interventions in their controlling dimensions.Footnote ⁴⁸ The trend has not escaped migration policy, as Ticktin has demonstrated in her ethnographic work on migrants claiming a protection status on humanitarian grounds in France. She argues that the available humanitarian protections also legitimize the exclusion of migrants who cannot found their claims on protection needs—which are evaluated on the basis of individual assessments that focus on the biological condition.Footnote ⁴⁹

Such work is particularly relevant to understanding what the increased focus in law on migrants’ “vulnerabilities” reveals of the underlying logics of contemporary legal developments in the field of asylum and migration. “Vulnerability” is indeed a humanitarian concept at heart: There is a long-standing tradition of designing aid and development programs on the basis of vulnerability assessments, with the objective of identifying the target groups.Footnote ⁵⁰ In this context, “vulnerability” serves to identify and overcome obstacles to self-reliance, so that aid recipients can be empowered to lead their own independent lives and are not destined to remain dependent on international aid.

The surge of the humanitarian concept of “vulnerability” within the field of asylum and migration law is thus accompanied by certain side effects that are inherent in humanitarian concepts. Tensions necessarily emerge as “vulnerability” evolves from a diagnostic concept that allows empirical researchers to better understand the human condition into a tool of selection that allows state actors to identify those who will benefit from state intervention. This is likely to generate, in turn, a “vulnerability competition,” that is, a fierce fight among individuals who seek to present themselves as more vulnerable than others—as Nakueira has documented in her ethnographic work on a refugee camp in Uganda, where refugees compete to be labeled “vulnerable” in order to gain access to resettlement programs.Footnote ⁵¹

Moreover, disagreements will arise when defining vulnerability categories—as is usually the case when it comes to defining humanitarian concepts that allow aid workers to identify aid beneficiaries. In his critical, ethnography-based work on humanitarianism in Jordan, for example, the anthropologist Lewis Turner emphasizes that aid beneficiaries may feel estranged from the vulnerability categories that are established by aid organizations, especially if they are not involved in their definition.Footnote ⁵²

This body of anthropological literature usefully highlights the connection between “vulnerability” and other broader policy objectives that relate to the governing of migration and asylum and the controversies that are likely to arise as a result. It sustains broader legal thinking on why some legal concepts are being developed, which tensions are likely to arise as a result, and how they can be channeled through the legal system. It also gives tools to better grasp and understand how current tensions and disagreements on how to address migration and refugee movements are being addressed through law—with an overall emphasis on humanitarian concepts that assist in achieving the delicate equilibrium between individual and collective interests while respecting fundamental rights.