The concept of vulnerability in European asylum procedures
The EU asylum acquis presents a fragmented legal framework for identifying vulnerable categories of asylum seekers, as well as defining the special guarantees necessary to preserve their ability to enjoy their rights and comply with their obligations in the asylum process. Although increased awareness and adaptability of Member States’ asylum systems has been a primary objective of the successive legislative reforms of the Common European Asylum System (CEAS), this has only yielded limited results in practice so far.
The application of EU law standards in Member States’ legal orders and systems faces important protection gaps, which result as much from poor implementation as from the complexity of and limitations inherent in current EU asylum law. Moreover, the terminological and conceptual ambiguity relating to the concept of vulnerability and the varying scopes of the categories of asylum seekers considered “vulnerable” in the recast Asylum Procedures and Reception Conditions Directives has contributed to incoherent approaches to the protection of these asylum seekers in national asylum processes.
Drawing on the AIDA report, ECRE makes the following recommendations:
Data collection
As it is the case in other areas of the CEAS, important gaps persist as regards the provision of statistical data relating to the presence of vulnerable individuals in national asylum systems, as well as the special procedural guarantees, such as exemption from special procedures, applied to the various categories of vulnerable groups. Systematic and detailed data collection requires a stronger statistical framework at EU level and should be pursued in the interest of a transparent, well-functioning CEAS. Against this backdrop, the Commission’s aim to explore amendments to the Migration Statistics Regulation at least with regard to children in migration may provide an opportunity to address these gaps.
Mechanisms for timely and effective identification
The objective of early identification is most effectively achieved through the establishment of reliable formal identification mechanisms that systematically screen all applicants. Targeted questionnaires at the moment of registration as well as during personal interviews constitute useful tools, provided that other procedural guarantees, including interpretation, are in place and that assessments go beyond visible medical vulnerability. Under no circumstances should authorities solely rely on vulnerable applicants’ self-identification, as this risks less visible vulnerabilities remaining undetected, thereby exacerbating applicants’ suffering and unnecessarily increasing medical costs. Both formal and informal identification mechanisms should be open to and incorporate expertise from specialised NGOs, including in training curricula, where necessary. In the interest of a well-functioning identification mechanism asylum authorities should ensure a clear legal framework and financial sustainability for the NGOs’ involvement in the identification process.
EASO’s role in identifying vulnerable asylum applicants in the hotspots in Italy and Greece has become crucial, although primary responsibility remains with competent national authorities. In Greece in particular, dysfunctional identification mechanisms have resulted in EASO-deployed experts de facto establishing vulnerability. In-depth monitoring is urgently needed vis-à-vis the role of EASO-deployed experts in identifying vulnerable asylum applicants, the extent to which perceived lack of credibility of applicants is superseding strong indications of vulnerability in the context of eligibility interviews, and the observance of procedural rules relating to the role of legal counsellors during interviews conducted by EASO deployed experts.
In order for European countries to comply with the best interests of the child principle, age assessment of unaccompanied children should only be envisaged where there are doubts after the person’s statements, available documentation or other indications have been considered. Medical age assessment should be a measure of last resort both in law and practice, where doubts persist following a psychosocial assessment. Age assessment decisions should respect the principle of the benefit of the doubt and be amenable to legal challenge by the applicant.
Exemption from special procedures
The extreme complexity and incoherence of the recast Asylum Procedures Directive provisions on exemption of applicants in need of special procedural guarantees and unaccompanied children from accelerated and border procedures has neutralised opportunities for genuine support to these groups in the asylum process. Two years following the expiry of the transposition deadline, Europe’s practice is equally fragmented: few Member States apply unequivocal exemptions, while others squarely contradict the Directive by providing no exemption, and others apply the regime of the Directive and end up exempting only minimal numbers of claims from truncated procedures. The implementation of these obligations results in individuals falling through the cracks of systems purported to offer them the special care they need when seeking protection. In the interest of clear, predictable and rights-compliant asylum procedures, EU law should lay down an unequivocal exemption of vulnerable groups from any procedure that is by definition unsuitable and not conducive to offering sufficient time and safety for them to put forward their protection claims.
Sensible and protective use of Dublin procedures
The Dublin Regulation provisions offer real possibilities for countries to reunite asylum seekers based on dependency or humanitarian considerations, yet their use in Dublin procedures remains marginal, if not non-existent, in most countries. Despite the attempt by the Commission proposal for the reform of the Dublin Regulation to further restrict the scope of such clauses, EU co-legislators have an opportunity to promote a more effective use of protective Dublin provisions in the aim of more sensible distribution of responsibility across the continent.
At the same time, European countries cannot operate the Dublin system in a manner that places vulnerable individuals at risk of harm. Despite judicial intervention to ensure that Dublin procedures take into account the situation of the applicants concerned, different Dublin Units have relied on general assurances from their counterparts to implement transfers, or request guarantees only for specific categories of vulnerable groups. Transfers of any asylum seekers requiring special guarantees should not be carried out in the absence of concrete, detailed and individualised guarantees from receiving countries that their needs will be taken into account.