Vulnerability: An Emerging Norm in Migration and Asylum Law?
Carolina Moniz Pinto and Fernanda Leal 
The term “vulnerability” has become increasingly important in academic literature, law and policy, and international debates on migration and asylum. This blogpost explores the different understandings of vulnerability and argues for the need to follow a holistic and structural approach.
Keywords: vulnerability, refugees, asylum, migration, CEAS
- Vulnerability in the context of migration and asylum
The term “vulnerability” has become increasingly important in academic literature, law and policy, and international debates on migration and asylum. International organisations, such as the UN and the IOM, have widely used the term in legal documents.
The term vulnerability originates from the Latin words vulnus and vulnerare, meaning ‘wound’ and ‘to wound.’ According to the Cambridge dictionary, vulnerable is something, somewhere, or someone “able to be easily physically or mentally hurt, influenced, or attacked”. In its turn, vulnerability is the quality of being vulnerable.
The 1951 Refugee Convention does not explicitly refer to vulnerability as a term; the idea, however, could be associated with the risk of persecution integrated in the refugee definition. Article 1(2)A defines the refugee as a person who is persecuted or faces a future risk (or has a well-founded fear) of being persecuted for reasons of “race, religion, nationality, membership of a particular social group, or political opinion”.
Historically, the protection needs of refugees were addressed at the genesis of refugee law, with the issuance of the Nansen passports for Russian and Armenian refugees. Gradually, and during the Cold war, the very definition of a refugee became more politicised, reflecting the protection of political supporters of one side versus the other. Still, it can be argued that the future-oriented risk assessment in the current definition of refugee, could be understood as an implicit reference to vulnerability.
As the field expands, organisations under the UN mandate, such as the International Organization for Migration (IOM) and the High Commissioner for Refugees (UNHCR), attempt to offer their input in international migration and asylum law and policy.
The IOM defines vulnerability as “the limited capacity to avoid, resist, cope with, or recover from harm”, introducing the idea of capacity for self-management. Moreover, the IOM links vulnerability to risk assessment. Depending on their particular circumstances, any group can be at a higher or lower risk of hardships and discriminatory practices. A risk that is increasingly higher in the context of “conflict, crisis or disasters.”
Alternatively, the United Nations High Commissioner for Human Rights (UNHCHR) in 2019 referred to the notion of vulnerability as the inability to enjoy human rights, resulting in these individuals being “at increased risk of violations and abuse.”
Equally, in other legal documents on refuge and migration, the definition of “vulnerability” diverges according to how different institutions draw from different disciplines to try and capture the meaning of vulnerability.
Despite the different accounts on vulnerability, these instruments concur on two fundamental points. Firstly, vulnerability pertains to the degree of susceptibility of individuals or groups to harm. Secondly, there is a consensus that structural and circumstantial factors can impact individuals or groups, rendering them vulnerable.
In the context of asylum policy, international humanitarian organisations and government bodies have put significant effort into developing policy tools such as the Vulnerability Assessment Framework (VAF) and the Vulnerability Screening Tool (VST) to identify individuals deemed ‘vulnerable.’. However, they operate on the premise that vulnerability is self-explanatory and prioritise efforts and resources towards individual identification.
At a regional level, the idea of vulnerability is also evoked in the Common European Asylum System (CEAS), specifically in the recast Qualification Directive (2011/95/ EU), the recast Asylum Procedures Directive (Directive 2013/32/EU), and the recast Reception Conditions Directive (2013/33/EU), in its entire chapter.
The perspective embodied in the CEAS directives adopts a twofold approach to vulnerability. It recognises certain groups’ susceptibility to harm while simultaneously considering the specific circumstances of a given situation. One could argue that this twofold approach reflects a growing recognition of the need to take a deeper look towards asylum and migration policies.
- A holistic approach to vulnerability
By acknowledging the increasing need for a more comprehensive understanding of migration and vulnerability, this research aims to adopt a more holistic approach that aims to address the erratic normativisation of vulnerability in the judicial and policymaking contexts. It encourages the use of insights from other disciplines, such as sociology, economics, ethics, psychology, and political science.
In this line of reasoning, our work seeks to identify and address problematic patterns in the intersection of forced migration and vulnerability. By examining the various dimensions of vulnerability – including its underlying factors- and how they interact within different social, economic, and (geo)political contexts, we aim to trace how the precarity of forced migrants’ and refugees’ lives is enhanced or alleviated.
Most importantly, this research aims to shed light on how understandings of vulnerability intersect with forced migration policies and how it impacts individual’s lives. By addressing systemic and structural issues, we could help inform policies and programs to reflect on and address the root causes of vulnerability and promote more equitable and just outcomes for migrants and refugees.
- How do perspectives from other disciplines affect the notion of vulnerability in migration and asylum law?
When analysing the relationship between vulnerability and forced migration, we notice the fragmented manner in which international law and policy actors address this notion, which often leads to uneven results and conflicting interpretations. The absence of a clear legal framework for vulnerability in the context of migration is partly due to the lack of consensus on how to define and interpret the concept.
Since the meaning of vulnerability is not self-evident, policymakers have erratically drawn insights from other disciplines. However, the controversy extends beyond the legal debate and reflects broader disagreements on how to conceptualise vulnerability. Non-conceptualised accounts of vulnerability tend to present divergent views on the circumstances or characteristics that give rise to vulnerability.
More often than not, vulnerability categorises migrants and asylum-seekers in specific groups, based on precise characteristics, without specifying how the notion is conceptually defined. Other accounts associate it to intrinsic or extrinsic attributes of the individual. The differing conceptualisations result in an uneven response that may perpetuate or create new vulnerability patterns.
Some anthropologists argue that migrating, at least in part, is an act of self-agency. It can be understood as an attempt to mobilise resources in the quest for autonomy. Vulnerability, in this case, can be understood as an underlying cause for displacement because vulnerable individuals may face significant danger or, at least, barriers to accessing basic needs.
Studying migration under the lens of vulnerability calls for realising the social ties intrinsic to its framework and underscores how it disproportionately affects individuals based on its inherent logic. Cabrezy contends that not all migrants receive the same level of attention and that demographic and geographic variables, at the very least, affect the protection outcome.
Furthermore, discriminatory policies and practices often target particular population categories, failing to address the underlying causes of vulnerability. In effect, inadequate protection can perpetuate a cycle of precarious mobility.
- Innate, situational, individual and structural conceptualisations of vulnerability
The UNHCR often relies on “innate vulnerability” when referring to women, children, older people and disabled people. Innate vulnerability is viewed as an innate or natural condition of certain persons or groups in a state of permanent risk because of “natural” characteristics. This conceptualisation focuses mainly on gender, disability, and age.
Such understanding is also commonly employed in the migration context, especially in asylum seekers’ reception to identify the “most vulnerable migrants.” But if ‘vulnerability’ is an innate and inevitable characteristic of the individual, shouldn’t protection laws and policies have already acted on its effects? Martha Fineman replies that innate vulnerability should and can be lessened through laws, policies, and institutions. To her, autonomy is not a natural feature of the human condition but a product of laws, policies, and social structures. The notion that specific individuals or groups remain vulnerable while others acquire autonomy is, therefore, inherently political and a product of social structures subject to decision-making processes.
The debate on Unaccompanied Minors (UAMs) clearly illustrates this argument. An unaccompanied minor (UAM) is someone below 18 years old who enters a country without being accompanied by a responsible adult. UAMs are often deemed the “most vulnerable” and need special protective measures in the context of migration.  Nonetheless, once they reach the age of eighteen, they are legally recognised as adults and no longer entitled to a “legally vulnerable status,” yet the conditions of precarity do not cease to exist.
Contrary to the idea of innate vulnerability, situational accounts seem to acknowledge more accurately the ongoing potential for vulnerability over time. Thus, situational approaches to vulnerability display proactivity towards future events. Situational vulnerability accounts transcend backward-looking policies aimed at remedying root causes of vulnerability resulting from past events. Instead, they incorporate a forward-looking approach that contemplates individuals’ potential to become increasingly vulnerable.
In the context of migration, a situational approach sees the migration process as a situational condition of vulnerability. The IOM often refers to displacement as a contributing factor to vulnerability, in the sense that unfamiliarity, restrictive policies and unsafe living conditions are frequently the underlying contexts.
Specific individuals or communities may be deemed vulnerable based on past, current, or anticipated experiences they have been, are or will be subjected to. In this light, the European Court of Human Rights has acknowledged how the vulnerability of asylum seekers also stems from their legal disadvantage in the destination country. 
Contrary to other references to innate vulnerability, the UNHCR’s note on “Migrants in vulnerable situations” refers explicitly to the “situational vulnerability” of migrants as the “circumstances en route or in countries of destination that render migrants at risk”. This inconsistency demonstrates how the notion varies even within the same organisation.
On the same note, UNHCR acknowledges individual vulnerability as another feature that shapes the institution’s view on vulnerability, which is related to personal traits or circumstances that place a group or an individual at a higher risk, such as children, elderly individuals, or those with disabilities. It is, hence, a combination of innate and situational characteristics assessed on a case-by-case basis. However, this approach may oversimplify the issue and fail to provide a deeper understanding of the underlying causes and the characteristics common to these groups.
At the European level, the relationship between forced migration and vulnerability is also characterized by a lack of clarity as multiple references to the notion result in a similarly ambivalent account of vulnerability. In the CEAS, certain groups and individuals are awarded special provisions due to their vulnerable status based on intrinsic or extrinsic conditions.
Such groups include minors, unaccompanied minors, disabled individuals, and elderly individuals, a categorisation that implies an inherent approach to vulnerability. Still, other vulnerable groups, such as “persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence…” are also considered vulnerable in CEAS, with the logic of situational vulnerability prevailing. Lastly, the European Agency on Asylum (EUAA) has introduced its own tool to assess vulnerability, named the Tool for the Identification of People with Special Needs (ISPN), which aims at an as more as possible individual approach, including as determining factors both innate and situational characteristics.
A third approach to vulnerability focuses on the structural grounds that produce and reproduce vulnerability. The basic assumption behind structural vulnerability is that any person or group is positioned or situated in a specific context and is affected by this context. According to this view, even innate and situational accounts of vulnerability heavily depend on normativisation and fail to reconcile the complex system of social, institutional, or ecological factors that lead to vulnerability. 
In other words, associating vulnerability to a set of personal or situational characteristics may risk overlooking the broader social, legal, psychological, ethical, geopolitical, and economic contexts that generate systems of inequality, insecurity, exploitation, and bias within a model of society that foster inherent vulnerability.
Under patriarchy, for example, it is not a woman’s “natural” gender that makes her vulnerable, but rather the unequal misogynistic social structures inherent to this model that subordinates her position and limits her autonomy, thus, creating the conditions for her vulnerability.
In any case, conceptualising and understanding vulnerability becomes a valuable political tool to uncover systems of inequality in migration. As IOM claims, “migration can cause vulnerability, migration can be a result of vulnerability, and vulnerability can be a cause of non-migration”.
Scholars have taken the discussion on structural vulnerability a step forward; first, if vulnerability is structural, it is also socially, politically, geographically, and culturally situated, and these factors should also be assessed. Secondly, the object of policies addressing and contrasting structural vulnerability should not be (solely) the single individual or group in a condition of vulnerability but the system that produced it.
These considerations seem to fall beyond the scope of innate and situational claims to vulnerability. While the first statement aligns, at least in part, with the element of potentiality incorporated in situational accounts to vulnerability earlier discussed; the second statement in the discussion suggests that addressing the underlying causes of vulnerability requires a structural approach irreconcilable with innate and situational views.
Critics of each one of these approaches have highlighted their strengths and drawbacks, however the interplay between migration and vulnerability remains widely understudied. As noted, employing fragmented and inconsistent approaches can result in a biased view of vulnerability. Thus, in the pursuit of a more holistic approach, framing a research analysis through structural lens could serve as a promising first step.
 Carolina is a legal practitioner and research assistant in the Vulnerability and Migration Research Line of the NOVA Refugee Clinic. She currently studies LLM at NOVA School of Law (specialisation – International and European Law). Fernanda is a legal practitioner and research assistant in the Vulnerability and Migration Research Line. She is a current LLM student at NOVA School of Law.
 Gilodi, Amalia, Isabelle Albert, and Birte Nienaber. ‘Vulnerability in the Context of Migration: A Critical Overview and a New Conceptual Model’. Human Arenas, 19 April 2022. https://doi.org/10.1007/s42087-022-00288-5.
 Cambridge Dictionary. (n.d.). Vulnerable. In Cambridge Dictionary. Retrieved February 21, 2023, from <https://dictionary.cambridge.org/dictionary/english/vulnerable>
 See Article 1 (2) of the 1951 Convention relating to the Status of Refugees.
 Sironi, Andrea C. Bauloz, and Marco Emmanuel, eds. Glossary on Migration. International Migration Law 34. Geneva: International Organization for Migration, 2019, p 229.
 supra n 6 p 134.
 OHCHR, ‘Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations’ (2018) OHCHR and Global Migration Group https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf.
 Other relevant texts also address the concept of vulnerability in the context of migration, such as, e.g., the New York Declaration for Refugees and Migrants, available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N 16/291/97/PDF/N1629197.pdf?OpenElement.
 Heidbrink, L. (2020). Anatomy of a crisis: Governing youth mobility through vulnerability. Journal of Ethnic and Migration Studies. https://doi.org/10.1080/1369183X.2020.1797479, Sözer, H. (2020). Humanitarianism with a neo-liberal face: Vulnerability intervention as vulnerability redistribution. Journal of Ethnic and Migration Studies, 46(11), 2163–2180. https://doi.org/10.1080/1369183X.2019.1573661
 These tools are not legally binding but used in practice.
 Article 19 (1).
 Article 31 (7) (b).
 Article 2 (k) and Chapter IV.
 Article 21 of Directive 2013/33/EU
 Sözer, supra n 11. Also, Turner, L. (2019). The politics of labeling refugee men as “vulnerable.” Social Politics: International Studies in Gender, State & Society, 28(1), 1–23. https://doi.org/10.1093/sp/jxz033
 Brodiez-Dolino, A. (2016, February 11). Le concept de vulnérabilité. La Vie des idées. Retrieved January 3, 2023, from https://laviedesidees.fr/Le-concept-de-vulnerabilite.html
 However, as it will be addressed later in this section, one should also reflect that the absence of displacement could also be revealing vulnerability, as circumstances could reveal that a certain individual or group lack the very capacity to exercise this act of self-agency.
 Forced migrants as a group are often considered a vulnerable group because of the situation in their country of origin that “forced” their migratory movement, which may include direct and indirect experiences of violence, persecution, famine, or other forms of peril (Sözer, n11 2020).
 Soulet, M. (2005). Reconsidérer la vulnérabilité. Empan, p 24-29. https://doi.org/10.3917/empa.060.0024.
 Luc Cambrézy, « Réfugiés et migrants en Afrique : quel statut pour quelle vulnérabilité ? », Revue européenne des migrations internationales [En ligne], vol. 23 – n°3 | 2007, mis en ligne le 01 décembre 2010, consulté le 04 janvier 2023. URL : http://journals.openedition.org/remi/4199 ; DOI : https://doi.org/10.4000/remi.4199
 Ibid 16.
 Brown, K., Ecclestone, K., & Emmel, N. (2017). The many faces of vulnerability. Social Policy and Society, 16(3), 497–510. https://doi.org/10.1017/S1474746416000610.
 Virokannas, E., Liuski, S., & Kuronen, M. (2020). The contested concept of vulnerability–A literature review. European Journal of Social Work, 23(2), 327–339. https://doi.org/10.1080/13691457.2018.1508001.
 Anderson, M. M., & Soennecken, D. (2022). Locating the Concept of Vulnerability in Canada’s Refugee Policies at Home and Abroad. Laws, 11(2), 25.
European Migration Network (EMN). (2018). Asylum and Migration Glossary 6.0 Home Afairs. http://www.ec.europa.eu/emn.
 Flegar, V. (2018). Who is deemed vulnerable in the governance of migration?. Unpacking UNHCR’s and IOM’s policy label for being deserving of protection and assistance. Asiel & Migrantenrecht, 8, 374–383.
 The loss of vulnerable status has far-reaching consequences beyond the loss of essential protections. It creates new patterns of vulnerability by revoking or limiting access to basic services and healthcare, like homelessness, and deportationmeles (Heidbrink, supra n 11).
 Flegar, supra n 26 p. 380.
“The decision of the Belgian authorities to expose the applicant to the conditions of detention and the living conditions that prevailed in Greece – The Court had already found the applicant’s conditions of detention and living conditions in Greece to be degrading. The conditions concerned had been well documented and easily verifiable in numerous sources prior to the applicant’s transfer. That being so, by removing the applicant to Greece, the Belgian authorities had knowingly exposed him to detention and living conditions that amounted to degrading treatment.” In: M.S.S. v. Belgium and Greece judgment (ECRE, 2017).
 UNHCR, 2017.
 Ibid, p. 2.
 Article 21 Reception Conditions Directive (2013/33/EU).
 See, https://ipsn.easo.europa.eu/ipsn-tool.
 Supra n. 3.
 Supra n. 3, citing Brown, K. (2011). ‘Vulnerability’: Handle with care. Ethics and Social Welfare, 5(3), 313–321. https://doi.org/10.1080/17496535.2011.5971652011; Elucidating the concept of vulnerability: Layers not labels. International Journal of Feminist Approaches to Bioethics, 2(1), 121–139; Virokannas et al. supra n 23.
 Brown et al., supra n 22.
 Luna, supra n 36.
 Flegar, supra n 26, p. 380.