Fineman in Luxembourg: Empirical lessons in asylum seeker vulnerability from the CJEU

Abstract

This article marries empirical evidence from the CJEU's asylum practice with the main tenets of Martha Fineman's ‘vulnerability theory’. It uses observations from this union in support of a theoretical and an empirical argument. On the theoretical level, the discussion unfolds to show that the post-identity ‘contextual’ approach which Fineman fosters can supplement the identity-based ‘categorical’ approach that currently anchors various asylum-related procedures in the EU. On the empirical level, it argues that the CJEU's asylum jurisprudence can offer the blueprint for how the theoretical aspiration would play out in practice. Together, the two arguments establish that Fineman's work could help align asylum governance with the asylum seeker's ‘embodied and embedded’ reality in a time when mismatch between the two attracts growing critique. Overall, this work not only contributes to the debate on the theory of vulnerability, but it also expands the application of Fineman's theory as a method for understanding and framing existing case law of the CJEU.

1. INTRODUCTION

Though the concept of ‘vulnerability’ has long been present in migration scholarship, ¹ it is Martha Fineman's particular iteration of a ‘vulnerability theory’ that has gained significant traction in legal and philosophical circles alike. Works that have sought to engage with her theory from a practical angle have been especially valuable for highlighting its compelling critique of the dominant liberal paradigm and exposure of its hidden costs. ² Some of them have applied her theory to judicial practice, ³ albeit not to that of the Court of Justice of the European Union (CJEU or Court). In fact, within the context of the European Union, works such as Freedman's piece on ‘the uses and abuses of vulnerability’ ⁴ and Da Lomba's re-conceptualisation of the Common European Asylum System (CEAS) through Fineman's work ⁵ have squarely remained within policy, rather than judicial practice. This has created a lacuna in the literature on how the theory relates to the asylum case law of the CJEU. In an effort to address the resulting gap, this paper marries empirical evidence from the Court's asylum jurisprudence with the main tenets of Martha Fineman's ‘vulnerability theory’ and thereby joins the ‘empirical turn in international legal scholarship’. ⁶ The article contributes to the conversations on vulnerability and to the space for courts and tribunals to engage with its basic tenets, whilst also offering a new reading of some of the asylum judgments of the CJEU. Most importantly, this work makes a practical contribution to the ongoing exploration of how to bring asylum governance closer to the asylum seeker's ‘real-lived experiences’ ⁷ as mismatch between the two attracts mounting critique from scholars, ⁸ human rights practitioners, and civil society alike. ⁹ It also offers a theoretical and an empirical exploration of how applying the lens of ‘vulnerability theory’ to asylum governance might affect the various stages of the asylum-seeking process as well as work to bridge the gap between the asylum seeker's ‘embodied and embedded’ reality and the law's treatment of it. ¹⁰

The article begins by espousing the fundamental elements of Martha Fineman's vulnerability theory (Section 2). Emphasis is put on the ideas of ‘dependency’, ‘resilience’, and the ‘responsive state’ in order to articulate what a ‘vulnerability analysis’ within the context of the asylum process – especially within adjudication – could look like. Care is also taken to explain the meaning of ‘embodied and embedded’ existence, which is of pivotal importance to understanding the theory. The section highlights the post-identity nature of Fineman's approach and situates this angle of the work within existing scholarship. Next, the article delves into how and why Fineman's ‘vulnerability theory’ is relevant to EU asylum governance and the asylum seeker's experience of it (Section 3). Thereafter, the discussion resorts to Fineman's theory as a heuristic device through which it studies a number of CJEU asylum judgments, chosen for their ability to illustrate what a vulnerability-informed analysis at the various stages of the asylum process could look like, even in the absence of explicit references to the term ‘vulnerability’ (Section 4). This empirical discussion highlights the cases in which the Court's treatment of the asylum seekers before it reflects the main tenets of Fineman's theory to a significant extent. The article then offers a brief reflection on certain critiques that can be voiced against vulnerability theory and how to address them (Section 5), before concluding with a recapitulation of its main contributions (Section 6). The latter can be briefly summarised as follows: first, the article presents a normative argument in favour of welcoming Fineman's espousal of her theory of vulnerability into the asylum-seeking process. Second, it uses empirical evidence from the CJEU's jurisprudence to show that, whether it is cognisant of it or not, the Court sometimes engages in an analysis that echoes the fundamental tenets of Fineman's theory. This helps elucidate the process of how instrumentalising ‘vulnerability theory’ would play out in judicial practice. Third, it makes the argument for bolstering the resilience-enhancing quality of asylum-seeking decisions via practice, rather than through legislation – a development which can be spearheaded by judicial and tribunal-like instances that have the mandate to clarify the application and interpretation of asylum instruments. Overall, this article not only contributes to a scholarly understanding of the concept of vulnerability through the way it has been put to use by the CJEU in the asylum context, but it also offers a practical illustration of what marrying Fineman's theory to asylum practice would look like.

2. UNPACKING MARTHA FINEMAN'S ‘VULNERABILITY THEORY’

Martha Fineman's work has long ‘grappled with the limitations of equality’ ¹¹ and simultaneously insisted on keeping a more practical edge. Her vulnerability theory takes a ‘term in common use,’ which is nonetheless ‘grossly under-theorised, and thus ambiguous,’ ¹² and channels its productive potential. Even though ‘vulnerability’ is often used to denote specific populations, Martha Fineman's conceptualisation of vulnerability is expressly universal in its scope and involves a ‘post-identity’ approach. ¹³

The hegemonic group-based, politically assigned, and fluctuating definition of ‘vulnerability’ is unambiguously rejected by Fineman, who argues that the continued association of the idea of vulnerability with particular (and often marginalised) identities leads to their stigmatisation and stereotyping for deviating from an imagined norm. ¹⁴ Not only that, but this categorical and exceptional application of the term helps uphold the liberal fiction that people are usually free, rational, autonomous and self-reliant. ¹⁵ The misleading portrayal of human beings as independent agents also perpetuates the idea that they thrive in the absence of interference by the State – shrinking the (already diminished) expectations as to its responsibilities vis-à-vis its inhabitants. ¹⁶ In those cases where the State nonetheless opts for intervening on behalf of someone it views as vulnerable, the result is usually ‘an attitude of paternalism’ as opposed to one of ‘empowerment and participation’, which in the most extreme cases ‘can then act as a moral justification for social control and behavioural regulation.’ ¹⁷

In Fineman's theory, vulnerability is not occasional and temporary, but ‘the primal human condition.’ ¹⁸ It is universal, constant, embodied and embedded. ¹⁹ As human beings, we are ‘embodied’, inhabiting bodies that condition our interaction with the world depending on our age, health, and ability, all of which fluctuate over time. ²⁰ We are also ‘embedded’ in numerous webs of social and political structures, on which we depend for the ‘resilience’ that we need to face life's challenges. ²¹ As defined by Fineman, resilience ‘is measured by an individual's ability to survive or recover from harm or setbacks that inevitably occur over the life course’. ²² It cannot be ‘achieved only by individual accomplishment and effort’, but is instead ‘the product of social relationships and institutions’. ²³ Though vulnerability is constant and shared, our varied embodiment and embeddedness, as well as different access to sources of resilience means that we experience our vulnerability in differentiated, individualised ways. ²⁴

Once the ‘embodied and embedded’ quality of all human existence re-frames traditional liberal perceptions of the individual, the result is a more realistic and multifaceted legal subject around whom the fundamentals of future policy and law should be built. ²⁵ This automatically transforms the expectations set not only upon the State, but also upon State bodies such as courts and tribunals, which are to be built around, and in service of, the vulnerable individual. ²⁶ The State has to yield its power in a way which not only recognises the inherent nature of human ‘dependency’ on surrounding institutions, but is also ‘responsive’ to human vulnerability through resilience-enhacing initiatives. ²⁷ In other words, the State and its institutions have to account for context in what Fineman terms a ‘post-identity’ approach. ²⁸

2.1. The post-identity approach

Whilst Fineman's vulnerability theory refocuses our attention away from a rational and towards a more relational understanding of human existence, it also offers a paradigm-changing contribution to the pursuit of justice and equity through its emphasis on the need to adopt a ‘post-identity’ paradigm due to the shortcomings of the dominant identity-centred operation of human rights. ²⁹ In Fineman's terms, an ‘identity paradigm’ is the one that has accompanied the mainstream non-discrimination and ‘sameness of treatment’ regime, whose pursuit of equality has been limited to eradicating discrimination based on identity characteristics such as gender, race, and ethnicity, amongst others. This, she argues, has been, and continues to be, insufficient and out of sync with reality because ‘[t]he process of analysing the differences that arise from individual experience within social structures does not begin with the particular characteristics of the individual, but with the nature of social arrangements’. ³⁰ Indeed, though eliminating discrimination based on one's identity characteristics might achieve formal equality, more often than not, it falls short of getting to the source of the issue which would require scrutinising the systems of power and privilege – as opposed to the identities – which intersect to produce effects that can be more devastating or more beneficial than the sum of each of their parts. ³¹ To allow for context to be given the important role it already plays in conditioning the life of human beings, Fineman conceptualises the theory of vulnerability as applying the ‘post-identity’ approach in pursuit of ‘equality in context.’ ³² It serves this goal by demanding that the law's gaze go beyond the individual characteristics of people to also account for their circumstances when seeking to address existing material and social inequalities. ³³ Thus, one of the most important uses of a vulnerability analysis is its application to interrogate how the structures, systems, and circumstances around individuals affect their resilience.

2.2. The post-identity approach revisited

Fineman's work on vulnerability is part of a rich scholarship on the topic of substantive equality spanning numerous contexts. ³⁴ Whilst comparing her contribution to other visions of the right path towards achieving substantive equality is beyond the scope of this paper, critically engaging with the theory's relationship to the identity paradigm is crucial for channelling its productive potential within the European context. Engrained in the US context, where the identity paradigm is much more salient than in Europe, Fineman's vulnerability theory offers one vision of substantive equality that arose as a response to the alleged inadequacy of discrimination-based, categorical approaches towards eliminating inequality. ³⁵ One of Fineman's foundational claims was that human rights, though capable of eradicating identity-based discrimination, had fallen short of achieving substantive equality. ³⁶ This context conditioned the theory's ambition to supplant, rather than supplement, the human rights paradigm. ³⁷

Yet, as the theory has gained traction in human rights’ circles, ³⁸ a growing number of scholars have embraced a more nuanced approach to vulnerability, which does not necessarily see it as incompatible with human rights and the identity paradigm. Especially within the European context, rather than rejecting the categorical approach, scholars have accommodated for it in their own visions of what a systemic analysis of equality or vulnerability could look like. For example, in approaching the case law of the ECtHR, Timmer and Peroni examine the emerging concept of ‘vulnerable groups’. Rather than dismissing this categorical recourse to the idea of vulnerability on the Court's part, they argue that it was a necessary reaction to the sometimes inadequate response of human rights to ‘the constructed disadvantage of certain groups.’ ³⁹ Human rights and vulnerability are not contesting concepts, but points on the same continuum. Indeed, framing certain groups as vulnerable is not necessarily a problem, but instead a ‘way of opening up the human rights universal, as a step towards a more inclusive universal human rights subject.’ ⁴⁰ Within the context of migration, Baumgärtel also embraces Fineman's theory to articulate the idea of ‘migratory vulnerability’ as something to be defined on a case-by-case basis and ‘in reference to identifiable social processes.’ ⁴¹ Particular for his work is the decision to frame ‘migratory vulnerability’ as temporary. ⁴² Though the proposal is well-argued for and tempting, this paper prefers to maintain the universal nature of vulnerability and denote more temporary states of the migratory experience through recourse to terms such as precarity and resilience. In this way, the risks inherent in the categorical application of vulnerability are avoided and the tools for questioning the structural causes of migratory precarity from within Fineman's theoretical universe remain potent. In contrast to Baumgärtel, Da Lomba wishes to detach the term from its application to particular groups. Having worked extensively on establishing the merits of a vulnerability analysis ‘as a foundation and tool of International Human Rights Law (IHRL),’ ⁴³ Da Lomba illustrates how the theory can be used to argue against the expulsion of settled migrants and as a justification for improved health care for ‘irregular migrants’. ⁴⁴ Similarly, De Londras reconciles the human rights paradigm and Fineman's vulnerability theory by seeing human rights as a source of resilience. ⁴⁵ It is this particular iteration of the relationship between human rights and vulnerability theory that this work embraces, accepting human rights as a valuable, resilience-enhancing tool. Thus, in reading the asylum jurisprudence of the CJEU, the work does not argue that the Court's ‘identity’ approach via recourse to human rights needs to be replaced, but reads it as a welcome, resilience-enhancing element that needs to be complemented by a ‘post-identity’ consideration of an applicant's particular context.

3. RELATING THE POST-IDENTITY VULNERABILITY ANALYSIS TO THE EU ASYLUM PROCESS

Applied to the international refugee protection regime in general, and the EU asylum process in particular, the theory of vulnerability has two important, and closely intertwined, consequences. The first one relates to how asylum seekers are perceived, whilst the second one relates to how the State, and its institutions, should reflect this. Viewed through the lens of Fineman's theory, asylum seekers, just as all human beings, are inherently vulnerable embodied individuals who are embedded in, and dependent upon, the societal relationships, institutions and State structures that surround them. Their vulnerability is thus no longer ‘categorical’ ⁴⁶ (as the notion that the term could be applied to ‘categories’ or sub-populations of people is rejected by Fineman); instead, their resilience is ‘circumstantial’ or ‘situational’. ⁴⁷ They have been disembedded from their ordinary lives and have become dependent on a new set of structures in their transit or destination States, caught in circumstances that alleviate or exacerbate their resilience to various degrees and in unfamiliar ways. ⁴⁸ To be ‘responsive’ to this re-configuration of the dominant understanding of the legal subject from the ‘liberal’ subject into the ‘vulnerable’ subject, legislative and judicial instances – extensions of the responsive State – would be mandated to respectively enact and interpret legislation in ways that account for asylum seekers’ inherent vulnerability. ⁴⁹

When it comes to the European Union, different legislative instruments govern the various stages of seeking asylum therein. A brief overview is therefore necessary for a nuanced account of how Fineman's theory could relate to each one of them in the process of application and interpretation by EU judges. First, there is the matter of assigning the responsibility for examining an asylum application under the Dublin III Regulation. ⁵⁰ Keeping in mind the instrument's inability to function as a mechanism to distribute, rather than allocate asylum seekers, applying the vulnerability analysis to a case concerning it demands keeping in mind that the ‘strained asylum systems in the EU border states’ ⁵¹ might affect asylum seekers’ resilience. Second, there is the matter of qualification for international protection under the Qualification Directive, ⁵² as either a ‘refugee’ or a beneficiary of the ‘subsidiary protection’ status. The very definition of a ‘refugee’ centres around identity categories that are analogous to the ones from the anti-discrimination model. Just as discrimination based on racial or ethnic grounds is impermissible in democratic regimes, so is ‘persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group’. ⁵³ An asylum seeker's eligibility for refugee protection depends not on their diminished resilience (the circumstances), but instead: on its source (persecution); ⁵⁴ on the identity characteristics making them the target of the persecution; and on the State's culpability as either the perpetrator or the passive bystander that withholds its protection. This leads to a paradox, whereby a person who lives in life-threatening poverty because of the systemic failures of one's home State is not granted international protection, even though the circumstances of their vulnerability might be much more devastating than those of a person who has a well-founded fear of being persecuted because of their identity. ⁵⁵ The circumstances of an asylum seeker become more relevant within the context of the ‘subsidiary protection’ status, which allows for protection if there is a risk of treatment contrary to Article 3 of the European Convention on Human Rights (ECHR), the death penalty or execution, or a ‘serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’ ⁵⁶ Yet, even if the subsidiary protection status expands its protection beyond the identity of the beneficiary to also account for their circumstnaces, the focuses remains squarely on their circumstances in the State of origin. Keeping in mind the dangers not only of the journey, but also of the supposed places of refuge, ⁵⁷ a potent vulnerability analysis of cases concerning the interpretation of this instrument would require accounting for context in transit States and refugee camps too. It would also need to move away from exclusively focusing on the source of one's suffering to additionally account for its extent.

Then, there is the question of the common procedures for status determination that are to delineate the grant and withdrawal of international protection under the Procedures Directive. ⁵⁸ Here, the various elements of interviewing the applicants can be undertaken in a way that accounts for applicants’ utter dependency on a reassuring process that accounts for their individualised vulnerability, be it by virtue of inherent characteristics or external causes. Finally, there is the matter of reception standards that need to be offered to international protection applicants, which is governed by the Reception Conditions Directive. ⁵⁹ Vulnerability-sensitive assessment of the special reception needs of certain applicants, their health, potential response to detention and the details of their journey would all be relevant considerations in this scenario. Alongside accounting for the individual characteristics of an asylum seeker, a vulnerability analysis would also ensure reflection on the systemic causes of their suffering.

Knowing that these parts of the asylum process are governed by different instruments is essential to a differentiated reading of the Court's engagement with the tenets of the theory of vulnerability, depending on the nature of the issue it is dealing with. A more detailed look into the complete legislative design of these instruments, so as to propose concrete steps for their revision in line with the theory, is beyond the scope of this paper. Instead, the purpose of this work is to reflect on the CJEU's practice of interpretation within the confines set by the legislation. The following discussion of the Court's jurisprudence will nonetheless be divided according to the relevant legislation, presenting a few judgments by the CJEU that offer glimpses of what knitting vulnerability into the fabric of judicial reasoning when working with these instruments could look like.

4. EMPIRICAL EVIDENCE FROM THE CJEU'S ASYLUM JURISPRUDENCE: ECHOING THE TENETS OF VULNERABILITY THEORY

In the jurisprudence of the Court of Justice of the European Union, ⁶⁰ the word ‘vulnerability’ appears in 52 judgments out of more than 12,000. ⁶¹ The subject-matter of the cases varies with 21 being concentrated within the Area of Freedom, Security, and Justice (AFSJ), ⁶² of which only 12 relate to asylum. ⁶³ Yet, conceptualising Fineman's vulnerability theory as a heuristic device to study all 105 ‘asylum policy’ judgments delivered by the CJEU to date ⁶⁴ shows that there are certain cases in which the Court's approach to the applicants and their circumstances aligns with her theory even in the absence of explicit recourse to the term ‘vulnerability’. ⁶⁵ Therefore, rather than limiting itself to discussing the cases that explicitly refer to the term, this article presents those cases of the Court's asylum jurisprudence in which the Court's approach to the applicants in question is relevant to Fineman's theory.

Importantly, this approach reflects the fact that the theory is much more than re-claiming a term in common use, and is instead a holistic and multi-faceted theory of which the idea of vulnerability is but one part. Indeed, the theory also fundamentally concerns the ideas of ‘dependency’, ‘resilience’, the ‘responsive State’, as well as the fact of human beings’ ‘embodied and embedded’ existence. The following analysis will seek to examine how the judicial reasoning accounts – or could have accounted – for the effect of migration on these elements. One's resilience in one's country of origin is very different from one's resilience in one's transit or destination country. Using the ideas of dependency on the surrounding social structures (such as family) and legal entitlements (such as citizenship) as a heuristic device exposes migration's consequential effect on them. Highlighting people's embodied and embedded existence puts thinking about their month-long journeys, the dangers they have encountered on the way, and the insecure conditions they have endured in transit camps (without any of the support structures others so conveniently rely on every day) into a novel perspective. This is a perspective that moves towards examining the extent of one's suffering, rather than demanding that its source be established. It is these contingencies that the vulnerability analysis can bring to the forefront.

The judgments in the following discussion might not mention ‘vulunerability’ explicitly, but they all bring the reality of an asylum seeker's embodied and embedded experience to the legal analysis to a bigger or lesser extent. They are presented according to the legislative instrument they concerned, showing that the judges in Luxembourg are intuitively capable of applying a ‘post-identity’ approach when interpreting legislation in light of the cases that come before them. Importantly, given the limited number of cases, the intention is not to draw generalisable conclusions about the Court's overall jurisprudence from them. Rather, it is to offer glimpses of what a vulnerability analysis has the potential to look like. It is in this ambition that one can locate the Court's important lessons in asylum seeker vulnerability.

Without making any claims as to the Court's cognisance of the theory, this work argues that those cases offer a blueprint for what a vulnerability-informed judicial practice within the area could look like. The first cases to be discussed require interpreting the Dublin III Regulation, which is in charge of determining the Member State responsible (MSR) for examining an asylum application (Section 4.1). Then, the articles moves on to two cases that offer a look into the Court dealing with the Qualification Directive (Section 4.2). Thereafter, the analysis deals with a strongly-worded case related to the Procedures Directive (Section 4.3). ⁶⁶

4.1. Vulnerability theory and the Dublin III Regulation

Judgments about the interpretation of the Dublin III Regulation are judgments concerning asylum seekers who are caught in no man's land. They have applied for asylum in one EU Member State, but that Member State argues that the responsibility for processing their applications lies with another Member State. The matter of determining their qualification for international protection is thus put on hold until responsibility for their application can be established. Disembedded from the social and legal structures on which they usually depend in their daily lives, these asylum seekers are now completely dependent on the Member State where they are located for any resilience to withstand the consequences of their embodied and disembedded vulnerability. ⁶⁷ Language that reflects this migratory precarity would be evidence of the Court aligning its approach with Fineman's theory.

4.1.1. The grand chamber case of Jawo ⁶⁸

Starting this discussion with the case of Jawo ⁶⁹ sets the bar as to what can be expected from the CJEU quite high. The judgment is evidence of robust reasoning on the part of the Court, which illustrates the aptitude of the judges in Luxembourg to complement their practice with a vulnerability analysis.

On 19 March 2019, the Grand Chamber delivered its judgment in the case of Jawo, ⁷⁰ which ruled on the threshold for stopping a transfer to the MSR for examining an asylum application under the Dublin III Regulation. The applicant was a Gambian citizen who had first applied for asylum in Italy, after which he submitted a second asylum application in Germany. The latter application was rejected by the German authorities on the ground that it was inadmissible, and the German instance ordered the removal of the applicant to Italy, the MSR for his case. Mr. Jawo challenged the removal order on several grounds. Most notably, he argued that his removal would be against the law due to the systemic deficiencies in the asylum procedure, reception conditions, and living conditions afforded to the beneficiaries of international protection in Italy. The CJEU was therefore asked to interpret the Dublin III Regulation in tandem with the prohibition against inhuman or degrading treatment. Notably, the Court referred to an NGO report to establish the circumstances for asylum seekers in Italy. It acknowledged that a 2016 Swiss Refugee Council report contained specific evidence that beneficiaries of international protection in Italy are ‘exposed to the risk of becoming homeless and reduced to destitution in a life on the margins of society’ ⁷¹ ; live at the mercy of the inadequately developed Italian social system, which does not provide them with any aid; and find themselves at the receiving end of inadequate integration arrangements in Italy. In other words, the Court went beyond the usual engagement with the legislative instruments before it to seek information that had to do with the circumstances of the applicant, as opposed to his identity.

The Court ruled that an asylum seeker may not be transferred to the Member State originally responsible for his application even where that Member State had granted him protection, if it was established that the living conditions in said Member State would expose the asylum seeker to a situation of such ‘extreme material poverty’ ⁷² that it might amount to inhuman and degrading treatment in breach of Article 4 of the Charter of Fundamental Rights of the European Union (EU Charter), a first in the Court's history. The outcome of the case and the Court's reasoning echoed the European Court of Human Rights’ (ECtHR) decision in the infamous M.S.S. v Belgium and Greece ⁷³ case, where the latter Court ruled, amongst other things, that Belgium had violated Article 3 of the ECHR by sending an applicant to Greece, where he was exposed to risks arising from the deficiencies in the asylum procedure, potential detention, and living conditions in breach of Article 3 of the ECHR. In terms of a vulnerability analysis, the CJEU's approach in Jawo established the ‘institutional production of vulnerability’ ⁷⁴ for asylum seekers in Italy. Not only that, but it also engaged in a vulnerability analysis when it allowed for the applicant's material conditions to have a bearing on the asylum process.

As a matter of principle, the deficiencies which the Court mentioned would be considered in breach of the prohibition against inhuman or degrading treatment only if they were to reach a significantly high level of severity, which is to be established on a case-by-case basis. Importantly, the Court ruled that this threshold would also be met if the indifference of the Member State authorities led to the applicant being in a situation of extreme material poverty and thereby jeopardised his physical or mental health to the extent of harming his human dignity:

[t]hat particularly high level of severity is attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself, irrespective of his wishes and personal choices, in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity. ⁷⁵

The ‘extreme material poverty’ threshold is very high. Yet, the Court's acknowledgement that one's material, socio-economic circumstances are capable of activating Article 4 of the EU Charter is significant for the future of the EU asylum system and for the people caught in it. Quite importantly, intentional deprivation is not required, with mere indifference on part of Member State authorities that causes ‘extreme material poverty’ being enough to engage Article 4 of the EU Charter. This is in stark contrast to Court's requirements in previous cases such as M’Bodj, for example, which is discussed below. ⁷⁶

Alongside paying attention to the diminished resilience of the applicant due to his material conditions, in Jawo the Court also highlighted his individualised vulnerability:

[i]t cannot be entirely ruled out that an applicant for international protection may be able to demonstrate the existence of exceptional circumstances that are unique to him and mean that, in the event of transfer to the Member State normally responsible for processing his application for international protection, he would find himself, because of his particular vulnerability, irrespective of his wishes and personal choices, in a situation of extreme material poverty. ⁷⁷

The reference to the applicant's ‘particular vulnerability’ echoes Fineman's idea that albeit universal vulnerability is experienced in an individualised manner by different people because ‘[t]here are two relevant forms of individual difference in a vulnerability approach—those that arise because we are embodied beings and those that arise because we are social beings embedded in social institutions and relationships’. ⁷⁸

The Jawo decision shows the Court studying the applicant's circumstances (even going into NGO reports to get a better grasp of them), his social and institutional embeddedness, and particular vulnerability for the purposes of allowing them to nuance the standard analysis underlying the international protection regime. The Court's reasoning is aligned with Fineman's approach which, as she reiterates, is

concerned with privilege and favour conferred on limited segments of the population by the state and broader society through their institutions. As such, vulnerability analysis concentrates on the structures our society has and will establish to manage our common vulnerabilities. ⁷⁹

By echoing the tenets of the vulnerability analysis in its reasoning, the Jawo decision therefore illustrates how taking context into account can be a more robust way of preventing the breach of fundamental human rights. Yet, as much as that element of the analysis can be celebrated, it is worth remarking that, to a large extent, the reasoning in Jawo reproduces the very high threshold of ‘extreme material poverty’ from the similar ECtHR judgment in M.S.S. ⁸⁰ that needs to be met before Article 3 of the ECHR (or Article 4 of the EU Charter) can be engaged. In other words, the context-driven analysis of the judgment should be celebrated with a dose of caution. Furthermore, since the Jawo judgment was delivered in the context of the Dublin system, its reasoning applied to the material conditions in EU Member States. Therefore, one cannot be sure about the applicability of its reasoning to the conditions in the country of origin, a transit State, a refugee camp, or other locations relevant to the asylum seeker's experience, ⁸¹ though it is easy to see that it has the potential to be transposed to origin or transit countries.

The future of the Jawo judgment remains uncertain, but even with the abovementioned caveats, its context-driven approach remains noteworthy. Previous empirical studies of the Court's jurisprudence reveal that the legal relevance of a case is, to a large extent, contingent on how old it is, ⁸² as ‘a case can become “embedded” in a long process of reinterpretation by legal actors’. ⁸³ Yet, the number of the Court's own references back to the case is not directly proportional to the case's popularity in the academic literature. ⁸⁴ Instead, what seems to be more definitive (for the time being) is its age and the amount of attention it gets in academic writing. With the advent of empirical studies that rely on computational analyses to determine the importance of a case, ⁸⁵ this might be about to change, and the noteworthy aspects of the Court's reasoning in Jawo might gain the attention they deserve.

4.1.2. The case of C.K. and Others ⁸⁶

The C.K. and Others ⁸⁷ case was related to the Dublin III Regulation transfer of a couple and their new-born child from Slovenia to Croatia. However, after the psychiatric assessments of the mother, she and the child were allowed to remain at the reception centre in Slovenia because they were in need of care. The Court's decision was very firmly grounded in human rights’ considerations and it ruled that the transfer may be refused, where, because of the applicant's ‘particularly serious mental or physical illness’ it ‘would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned’ which in turn, ‘would constitute inhuman and degrading treatment.’ ⁸⁸ The Court also added that ‘suffering following naturally occurring illness’ (physical and mental) could qualify as risking a breach of Article 4 of the EU Charter and Article 3 of the ECHR if

[it] is, or risks being exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible, provided that the resulting suffering attains the minimum level of severity required by that article. ⁸⁹

The Court's reasoning in the current case took account of the applicant's lived experience. By giving her illness due consideration in its decision, the Court acknowledged her embodiedness and vital healthcare dependency on the institutions and systems around her. Not only that, but it allowed those to trump considerations of preserving the functioning of the asylum system, which is otherwise dependent on the effective and timely execution of transfers. In fact, the Court's ruling prevented a transfer due to her circumstances, even though the applicant's eligibility for international protection was yet to be established. Explicit recognition of the applicant's vulnerability-induced dependency therefore established a caveat in one of the most solid pillars of the Court's reasoning within its asylum cases, namely the pursuit of preserving the effectiveness of the asylum system. ⁹⁰

4.1.3. The case of K. ⁹¹

The case of K. ⁹² concerned the humanitarian clause of the Dublin III Regulation. ⁹³ What was interesting about the situation was that it was not the asylum seeker herself but her daughter-in-law who had mental health problems and needed help, which the applicant was able to provide if she were allowed to stay in Austria, rather than Poland (the MSR for her application). In its reasoning, the Court gave a wider interpretation and a more extensive coverage to the notions of ‘inhuman treatment’ and ‘family’. ⁹⁴ It was generous and considerate of the applicant's circumstances, even though she wished to be reunited with a person who was not her direct relative. The CJEU thus recognised that the extended family can be a source of resilience, and by being an institution that accounts for that, the Court itself became a source of resilience. Despite the presence of references to ‘effectiveness’, ⁹⁵ legislative intent, ⁹⁶ and the objective of the Regulation in question, ⁹⁷ the Court heavily considered the applicant's context. The decision was therefore a substantial balancing exercise between preserving the effectiveness of the Dublin system and taking note of the desires of the applicant and her social embeddedness. The importance of the Court's ruling in this case cannot be overstated. By being responsive to the wishes of the applicant, the CJEU went against one of the main rationales for having the Dublin system in the first place, namely preventing applicants from choosing where to apply for asylum. The fact that the dependency, not of the applicant, but of her daughter-in-law, was a sufficient consideration to outweigh the principle of preserving the effectiveness of the asylum system is therefore very progressive. It reveals the resilience-building power that a vulnerability analysis can have when all circumstances are incorporated into the exercise of balancing applicant interests against those of preserving the asylum system.

Even though it was the asylum seeker who wished to remain in Austria, the vulnerability analysis could also highlight the benefits for granting said wish for Austria. The facts of the case made clear that the applicant's relative in Austria was significantly dependent on her help because of having a newborn alongside having a mental health issue and a handicap. Not only that, but the applicant's relative was at risk of violence from men in her family ‘on account of cultural traditions seeking to re-establish family honour.’ ⁹⁸ With ‘appropriate professional exeprience’ ⁹⁹ to aid her relative, the applicant's presence in Austria would make the world of a difference for her relative. It would, however, also spare a lot of material and human resources for the Austrian State. Here, it is important that one exercises awareness when justifying the State's ‘privatisation’ of care through the family unit because, currently, this maintains the primacy of the idea of the autonomous liberal subject and absolves the State from any responsibility to take care of the caretaker. ¹⁰⁰ Therefore, this fact of life should be examined with the tools provided for by the theory of vulnerability that allow us to re-frame our societal and institutional responsibility to caretakers such as the applicant in a way that ensures that her needs in meeting the demands of care-taking are accommodated in a general way. ¹⁰¹

4.2. The Qualification Directive and health-related cases

Once the MSR for an asylum application is established through the the Dublin III Regulation, the Qualification Directive comes into play in parallel with the Procedures Directive and the Reception Conditions Directive. The following discussion begins by comparing and contrasting the M’Bodj ¹⁰² and the M.P. ¹⁰³ cases in the context of the Qualification Directive. They are examples of the Court pursuing alternative approaches when looking into the individual circumstances of the applicants in order to rule on the interpretation of the instrument. The discussion begins with the M’Bodj case, where it is highlighted how a vulnerability analysis could have been relevant through a juxtaposition with the M.P. case.

In the M’Bodj case, the applicant, Mr. M’Bodj (a Mauritanian citizen) had been granted a residence permit based on humanitarian grounds in Belgium for medical reasons (a major eye disability). It had been deemed that the absence of appropriate medical treatment in Mauritania would subject him to a real risk of inhuman or degrading treatment if he were to be returned there. Since he qualified neither for the refugee, nor for subsidiary protection status under the Qualification Directive, he was refused the income support afforded to the beneficiaries of international protection. Upon the applicant questioning the verdict on his entitlement to financial allowance, the Belgian Constitutional Court referred two questions to the CJEU. First, it asked whether, under the Qualification Directive, ‘subsidiary protection’ could also be extended to a foreign national who had been authorised to reside in a Member State territory because he suffered from an illness that either posed a real risk to his life or physical integrity, or a real risk of inhuman or degrading treatment, should he be returned to his country of origin, where appropriate treatment could not be provided. Second, the referring court asked whether, if the ‘subsidiary protection’ category applied in the situation described above, the accompanying social welfare and health care benefits available to subsidiary protection beneficiaries (with the additional benefits for people with disabilities) should have been made available to the applicant in M’Bodj as well.

The Grand Chamber addressed the first question in detail and the second one more superficially, with the overall judgment mirroring the logic that underlies the international protection regime, whereby an applicant is required to establish persecution (which in turn involves an element of intent) and the absence of State protection. Whilst a vulnerability analysis would have directed attention to the extent of the applicant's dependency on, and embeddedness within, the different Belgian State structures and institutions, as well as his resilience (or lack thereof) in light of his particular circumstances, the judgment remained focused on the nature of the source of the applicant's diminished resilience strictly in line with the ‘rationale of international protection.’ ¹⁰⁴ In the words of the Court, ‘harm must take the form of conduct on the part of a third party and […] it cannot therefore simply be the result of general shortcomings in the health system of the country of origin.’ ¹⁰⁵ Though the extent of the applicant's dependency on Belgian State structures was high enough that their absence upon his potential return to Mauritania would risk subjecting him to inhuman and degrading treatment, what mattered for the Court was whether said absence would be the consequence of intentional withholding of help. Formally, the Court made one reference to a human rights instrument, namely the EU Charter, ¹⁰⁶ and referred to the case law of the ECtHR. ¹⁰⁷ Those were, however, outweighed by considerations characterising the teleological interpretative approach, such as references to the context and objectives of the Directive, the intention of the Directive, the general scheme and objectives of the Directive, and once again, the ‘rationale of international protection.’ ¹⁰⁸

On the claimant's eligibility for subsidiary protection status, the Court ruled that the Qualification Directive does not cover an applicant with a deteriorating state of health when it is not the consequence of an intentional deprivation of health care. ¹⁰⁹ Making references to rulings from the ECtHR, the CJEU also noted that whilst there is jurisprudence in favour of establishing a violation of Article 3 of the ECHR where a person is to be removed to a State in which the treatment of the person's illness would be poorer than the ones in the hosting State, ¹¹⁰ establishing this would still not have been enough to grant subsidiary protection to the applicant.

The Court therefore ruled that the Qualification Directive did not oblige Belgium to give social welfare or healthcare benefits to applicants who had been granted leave to remain on the grounds of suffering a serious illness which the applicant's country of origin could not treat suitably. The judgment led to the unfortunate conclusion that despite his deteriorated state of health and compromised resilience, the applicant in M’Bodj could not avail himself of the protection and rights afforded to refugees or subsidiary protection beneficiaries, unless it could be proven that he would be intentionally deprived of medical care. The Court's decision mirrored the persecution logic of the international protection regime, which largely focuses on the perpetrator and the intention to perpetrate harm, instead of examining the extent of said harm, and how it was exacerbated by an applicant's dependency on the host State systems in which he was embedded.

In stark contrast, in the case of M.P. ¹¹¹ , the applicant was a third country national who had been tortured in the past. He was no longer at risk of being tortured, but his health could significantly deteriorate if he were to be returned to his country of origin. The Court ruled that the return should not happen, if there was a real risk that he would be ‘intentionally deprived of appropriate care for the physical and mental after-effects resulting from the torture he was subjected to by the authorities of that country’. ¹¹² Here, the risk of intentional deprivation of treatment was implied through reading Article 14 of the Convention Against Torture (CAT), which states that ‘a victim of torture has the right to obtain redress, including the resources necessary to achieve as full a rehabilitation as possible.’ The Court held that redress for inflicted harm should be understood as the norm (despite requiring positive action on behalf of a State), and any deviation from it should be considered intentional. The Court's decision in M.P. ¹¹³ to complement the requirement of intent with looking into the circumstances of the applicant in the country of origin and evaluating the extent of his diminished resilience is praiseworthy. However, when the M’Bodj ¹¹⁴ and M.P. ¹¹⁵ judgments are juxtaposed, the line that the Court draws to separate the two applicants seems thin. Indeed, the reasoning in the two cases would have aligned more cohesively if the de facto circumstances, including the dependency and the resilience of both applicants, were given a proper examination. Positing the vulnerability analysis as a mandatory accompaniment to the familiar considerations that are given weight in asylum cases could achieve precisely that. Indeed, that a consistently applied vulnerability analysis can enhance the protection standards for ‘irregular’ migrants in the field of health has already been observed in the context of the ECtHR jurisprudence. ¹¹⁶

4.3. The Procedures Directive and the right to be heard

The leading objective of the Procedures Directive ¹¹⁷ is to ‘to further develop the standards for procedures (…) for granting and withdrawing international protection.’ ¹¹⁸ Article 15 ¹¹⁹ of the Directive, ‘Requirements for a Personal Interview’, is an important example of how a procedure can take account of the particular circumstances of an applicant. It concerns the need for interviewers to be qualified enough to consider and take note of the applicants’ vulnerability when conducting interviews with them. The caveat of course is that the reference to ‘vulnerability’ in the legislation is categorical rather than universal. Interpreting the legislation with Fineman's theory in mind would mean reading this vulnerability as universal and understanding that the interviewers need to account for the systemic and circumstantial elements in an asylum seekers’ account that exacerbate her situation of diminished resilience.

The following discussion will concentrate on the M. ¹²⁰ case, ¹²¹ whose focus on what is currently Article 15 of the Qualification Directive concerned whether an applicant's right to be heard for his subsidiary protection application was satisfied with an initial interview within the context of his refugee protection application, or whether he should have been allowed additional interviews. Here, the applicant's vulnerability was pivotal to the Court's reasoning, where it was stated that

An interview must also be arranged if it is apparent — in the light of the personal or general circumstances in which the application for subsidiary protection has been made, in particular any specific vulnerability of the applicant, due for example to his age, his state of health or the fact that he has been subjected to serious forms of violence — that one is necessary in order to allow him to comment in full and coherently on the elements capable of substantiating that application. ¹²²

The noteworthy element of the Court's reasoning is its direction to the relevant domestic authorities to take account of the ‘specific vulnerability’ of the applicant and consider ‘his state of health or the fact that he has been subjected to serious forms of violence’ in their assessment. Here, the ‘specific vulnerability’ of the applicant is in line with Fineman's ‘universal, but individualised’ vulnerability approach, whereby all people are vulnerable, but experience their vulnerability in an individualised manner as resilience varies due to factors such as the ones listed above. In fact, noting the ‘serious forms of violence’ is very much akin to the process of pointing out the structural, contextual, and non-identity-related causes of diminished resilience, which Fineman tries to capture with her theory.

By looking beyond the identity of the applicant, to also include an examination into how his embodied, lived experience, changing with ‘his age or state of health’, as well as how the surrounding circumstances might affect his resilience, the Court was very much conducting the type of analysis that Fineman is promoting with her theory. Therefore, this case could easily be read as evidence of the Court's potential to mobilise the contextual approach mandated by Fineman's theory.

5. REFLECTING ON THE DRAWBACKS OF FINEMAN'S VULNERABILITY THEORY

As is the case with most theories, Fineman's approach has a number of pitfalls that need to be addressed. Often times, the first danger that is highlighted is that the universal application of ‘vulnerability’ can have a potentially eclipsing effect when it comes to the needs of specific groups. ¹²³ The second danger, especially within the asylum context, is that reforming our conceptualisation of vulnerability might simply end up being a vacuous act of replacing the concept with another shorthand, undermining the more deep-rooted change that the ‘vulnerability theory’ pursues. The third danger is that the concept gets watered down, and existing carve-outs for particularly vulnerable asylum seekers, such as those who are old or sick, completely disappear. This potential problem is especially relevant when one considers the ‘hotspots approach’ for example. ¹²⁴ In Greece, the ‘hotspots approach’ meant that especially vulnerable asylum seekers on the Greek islands were allowed to move onto the mainland, rather than remain on the islands. ¹²⁵

Avoiding these pitfalls requires diligence and reflexivity upon engaging with vulnerability à la Fineman. Indeed, these concerns can be compellingly addressed if one accounts for the fact that Fineman's universal application of vulnerability is one element of a holistic theory, which offers more potent tools for tackling the needs of individuals – regardless of their belonging to a particular group – than is possible under the existing regime which defines vulnerability as categorical. In response to the first and second critique, one could therefore argue that the benefits inherent in adopting Fineman's definition of ‘vulnerability’, as complemented by her ideas of ‘resilience’, ‘dependency’, and the ‘responsive State’, far outweigh any potential risks of doing so. Indeed, the payback of replacing the dominant definition of ‘vulnerability’ with Fineman's is even more apparent within the context of asylum, where the categorical application of the term ‘vulnerable’ has led to stigma, paternalism, and othering. ¹²⁶ Not only that, but practices anchored in ‘categorical’ vulnerability have had problems of their own. For example, despite its apparently principled goals, the EU ‘hotspots approach’ has faced critique as ‘considerably restricting the procedural guarantees available to asylum seekers subject to border procedures contrary to European Courts’ case law and to the recast Asylum Procedures (such as Articles 35 and 43) and Reception Conditions Directive (Article 8).’ ¹²⁷ It is precisely this kind of critique that the vulnerability approach seeks to avoid by guaranteeing that the circumstances of the asylum seekers are always taken into account. Beyond the immediate benefits of avoiding stigma, unnecessary paternalism, and re-establishing the connection between all human beings by virtue of their shared vulnerability, it is worth reiterating that introducing Fineman's vulnerability approach to asylum governance would help bring it closer to the embodied and embedded reality of the asylum seekers.

6. CONCLUDING REMARKS: THE ADDED VALUE OF THE VULNERABILITY THEORY FOR THE CJEU

Keeping in mind the ever-growing disenchantment with the power of liberal policies to lead to equitable outcomes, it is hardly surprising to note the growing appeal of Fineman's ‘vulnerability theory’, not least within the context of asylum governance, where inadequate policies continue to cost human lives. ¹²⁸ Whilst advocating for a ‘responsive State’ through a re-conceptualisation of the autonomous liberal subject as the vulnerable subject, her theory becomes a potent tool for justifying the need for paying stronger consideration to the asylum seeker's context in the asylum seeking process.

Its relevance to the asylum process notwithstanding, the vulnerability theory also proves to be a valuable heuristic device for studying the judicial practice on the subject, particularly within the EU context. As illustrated through a number of cases from the asylum jurisprudence of the CJEU, such scrutiny is already occurring in certain instances, albeit sporadically. In those few cases, the vulnerability lens allows one to see the benefit of complementing familiar engagement with asylum seekers’ cases by incorporating their embodied and embedded experience into the legal analysis. Judicial reasoning widens its gaze beyond the asylum seekers’ identities and also accounts for their individual circumstances. Not only that, but it draws attention to the consequential nature of the total collapse of the social and State structures asylum seekers usually depend upon, once on the move. This problematises the various asylum procedures’ preoccupation with an asylum seekers’ State of origin, ¹²⁹ and little regard for the nature of the journey an asylum seeker has been through or its effects. With its emphasis on the imperative for ‘responsive’ and resilience-enhancing institutions, the vulnerability analysis shifts the focus of asylum adjudication and processing ever so slightly onto the institutional setup within which an individual is embedded.

Though no claim as to judicial cognisance of the theory is brought forward, it is argued that the Court's judgments can offer the blueprint for what incorporating a vulnerability analysis into existing modes of adjudicating asylum cases might look like. That is, of course, should the relevant instances become compelled to account for ‘the lived experience’ ¹³⁰ of asylum seekers in their interaction with them. Whilst mandated within Fineman's vulnerability theory, such an approach is but an aspiration under current practice. Yet, with ever-growing critique ¹³¹ being levelled against the mismatch between asylum governance and asylum seekers’ reality, ¹³² it is precisely this kind of aspirations – with articulate and tangible properties – that might make them the blueprint for much-needed reform.