It is now over ten years since the European Court of Human Rights (ECtHR or Court) first established that asylum seekers are inherently and particularly vulnerable on account of their very situation as asylum seekers. This occurred in its Grand Chamber judgment in the case of M.S.S. v Belgium and Greece. This article critically examines the Court’s subsequent asylum jurisprudence through the lens of vulnerability. The analysis reveals that the Court has engaged in ‘vulnerability backsliding’. Specifically, it traces the ways in which the Court has surreptitiously reversed the very principle of asylum vulnerability it itself established in M.S.S. The consequence of this backsliding is not only that the judicially recognised concept of asylum vulnerability is undermined, but that some of the most vulnerable applicants that come before the Court suffer renewed marginalisation, and, in some circumstances, exclusion from the ‘special protection’ to which they were previously afforded courtesy of M.S.S.

States’ bordering practices force individuals to undertake dangerous migratory journeys and put them at risk of severe human rights violations. Yet, irregular arrivals who are found not to be at risk of serious harm in their countries of origin are perceived as voluntary migrants and are therefore assumed not to be in need of protection. This article employs the concept of vulnerability to challenge the idea that both the initial and subsequent dangerous migratory journeys are undertaken voluntarily. Based on an analysis of trafficking-based asylum claims from the UK and Germany, the article shows that both re-trafficking and irregular re-migration result from vulnerabilities which converge to preclude reintegration in the country of origin and access to livelihood options. While some of these vulnerabilities are likely to be present at the time of the initial dangerous journey already, the article pays particular attention to ‘consequential vulnerabilities’ brought about by previous migration experiences. It then introduces the concept of ‘route causes’ of irregular re-migration to describe factors which heighten the risk of re-migrating irregularly and therefore establish a risk on return related to harm experienced during irregular migration, rather than in the country of origin. Thus, the article shows that the vulnerability concept informs the future risk analysis in refugee law and argues that, just like a risk of re-trafficking, a risk of irregular re-migration could form the basis of an asylum claim.

The traditional drafting and subsequent implementation of international refugee law have been criticised for relying on a male-centric understanding of persecution. Whilst this framework has recently shifted to include a more gender-sensitive interpretation, I argue that this introduction of gender within refugee status determination has traditionally relied on narratives infused with gendered and racialised stereotypes. In particular, it relies on a ‘white saviour’ colonial narrative that perceives refugee women as vulnerable victims in need of saving. Drawing on a decolonial and critical epistemological analysis that includes both a race and gender dimension, I unpack the epistemic violence and hidden colonial legacies in the representation of refugee women in case-law. Ultimately, this article concludes with a call for reframing the legal narrative around refugee women by approaching them as political actors rather than oppressed and vulnerable subjects.

This article aims to reflect on ‘ecological vulnerability’ – which makes evident the relationship, flows and interactions between the human being/body and the environment/non-human world – as applied in the context of environmentally induced migration. In particular, the dual role of the law vis-à-vis environmentally displaced migrants as a generator and exacerbator of their vulnerability as well as potential antidote, valuable for attaining protection, will be highlighted. Namely, on one hand, the analysis will show how a lack of conceptualisation of the notion to understand the spatial and temporal patterns of climate change-related migration, as well as its consequences for societal well-being, contributes to generate and exacerbate the vulnerability of that category of migrants. On the other hand, the critical understanding of vulnerability, as developed in some recent legal reasoning of international and national jurisdictions, will be proposed as a key element for ensuring the resilience of both environmental migrants and the law itself, for both virtuously expanding traditional asylum norms and flexibilising access to international protection for those migrants.

The fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary mechanism for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work, which identified a legal tool suitable for achieving this reorientation in judicial practice: the principle that we call ‘migratory vulnerability’, once recalibrated away from a group-based approach to a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the ‘comparator’ test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.