October 25, 2016
Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)
As has recently been noted in this blog, the case of O.M. v Hungary adds another tile to the European Court of Human Rights’ (ECtHR) mosaic on vulnerability. The present blog post seeks to start from these premises and dig further into the Court’s reasoning, to reflect on the extent to which vulnerability can be operationalised and meaningfully used in the legal reasoning and when, instead, it risks to remain confined only to a synonym for specific situations deserving attention.
As the readers of this blog may know, O.M. v Hungary concerned the detention to which a gay asylum seeker from Iran was subject while his asylum request was processed and before being granted refugee status. The detention was ordered because, allegedly, Mr. O.M. had not been able to clarify his identity and nationality; had entered irregularly; had not had any resources to live on in Hungary and there was a risk he could frustrate the procedure if left at large. The applicant claimed before the ECtHR that his detention had been unjustified with respect to Article 5(1)(b) of the European Convention on Human Rights (ECHR) and that no individual assessment had been carried out. Notably, the applicant’s sexual orientation had not been taken into consideration, although Mr. O.M. reported to fear harassment in detention because of this circumstance.
Importance of the case
The importance of this case – the first-ever ECtHR judgement on the detention of a gay refugee – is twofold. On the one hand, it corroborates the Court’s jurisprudence regarding the criteria to consider asylum seekers’ detention lawful; on the other hand, it takes a stance in favour of LGBTI asylum seekers and, more generally, of vulnerable individuals.
As for the first aspect – which is not discussed in detail here – this decision reaffirms core principles already enshrined in the Court’s jurisprudence; specifically, obligations under Article 5(1)(b) ECHR need to be concrete and specific (see Ciulla v Italy). The Court unanimously found that the applicant’s detention was unjustified under the ECHR, since Hungarian asylum law does not envisage any obligation incumbent on asylum seekers to provide documentary evidence of their identity and nationality, but rather a duty to cooperate with the authorities to this end.
Notwithstanding the importance of such determination on the lawfulness of detention, it is the second aspect – the lack of an individual assessment – that makes the present case stand out. The ECtHR criticised that the detention order had only been based on the risk that the applicant could have run away and therefore frustrated the asylum procedure, whereas no individual assessment of his situation had been carried out. As the Court eloquently affirmed in Saadi v United Kingdom, in order to comply with Article 5(1)(b) a detention must also not be arbitrary; thus, a thorough examination of the asylum seekers’ personal circumstances cannot be omitted (see Vasileva v Denmark). Yet, such individualised assessment lacked in the present case, to the extent that Mr. O.M.’s sexual orientation was completely neglected when he was detained. The Court held the view that the asylum authority had failed to take into adequate consideration the applicant’s vulnerability, which arises from the fact of him being a gay man in Iran. On this account, the decision to detain Mr. O.M. should have been weighted in the light of his sexual orientation, in order to ‘avoid situations which may reproduce the plight that forced’ LGBTI persons to flee (O.M. V Hungary at 54).
It is beyond doubt that the ECtHR’s acknowledgement of sexual orientation as a factor giving rise to vulnerability for asylum seekers in detention represents a welcome step forward in the protection of LGBTI refugees, who all too often experience discrimination and double victimisation. I agree with Corina Heri when, arguing from Martha Fineman, she discusses that the reference to vulnerability can trigger States’ responsiveness towards the particular needs faced by individuals.
Nevertheless, the question is to what extent vulnerability really brings an added value to the Court’s reasoning, as it might appear a vague and elusive concept, thus difficult to frame in legal terms. As a recent volume (2015) edited by Francesca Ippolito and Sara Iglesias Sànchez demonstrates, the notion of vulnerability has been explored by the ECtHR in several occasions and in relation to different groups (e.g. Roma people, children, refugees) but it still lacks a clear definition.
Regarding asylum seekers, the controversial nature of vulnerability emerged in the ECtHR jurisprudence for the first time in M.S.S. v Belgium and Greece, where the Court considered asylum seekers inherently vulnerable because they are part of a ‘particularly underprivileged and vulnerable population group in need of special protection’. The Court implied that all asylum seekers are vulnerable as such, regardless of their individual circumstances and affirmed that the distress caused by the situation of detention was exacerbated by the applicant’s inherent vulnerability as an asylum seeker. On the other hand, in O.M. v Hungary the Court zoomed in on vulnerability and stated that the detention order should have considered the applicant’s belonging to a particular group; that of LGBTI individuals. In this case, vulnerability appears linked to the applicant’s sexual orientation, rather than to his condition as asylum seeker per se.
From these two rulings, vulnerability emerges as a nuanced and adaptable concept: the ECtHR recognises that, whereas generally all asylum seekers are vulnerable because of the trauma and harsh conditions they often face, at the same time some of them may present personal circumstances that aggravate their (inherent) vulnerability, such as in the case of LGBTI refugees.
Opportunities and pitfalls
As scholars such as Peroni and Timmer have noted, the notion of vulnerability brings with it both opportunities and pitfalls. In the O.M. v Hungary case it is possible to outline both, by highlighting the positive aspects contained in this judgement as well as some of the unresolved questions triggered by the concept of vulnerability.
On the one hand, in this case the ECtHR fully recognised the struggle of LGBTI refugees. The Court did not limit itself to considering sexual orientation as an aspect exposing asylum seekers to a higher risk when in detention, but actually went beyond that. Specifically, vulnerability arising from the applicant’s sexual orientation is framed as a ‘continuum’: it originates in the asylum seekers’ countries of origin and risks to be perpetrated in the country of asylum if adequate safeguards are not in place. To this end, the ECtHR noted that the authorities did not adequately ponder that, in detention, Mr. O.M. could have risked again facing discrimination and hatred from other detained persons, who might come from countries where prejudice against LGBTI persons exists.
This case squarely stresses the heightened vulnerability that some asylum seekers may carry. It does not contradict the position held in M.S.S. v Belgium and Greece; rather, it enriches it and opens up new avenues for construing the notion of vulnerability. In the M.S.S. case, vulnerability serves to remind States about their obligations towards asylum seekers, in accordance with international and European law. In the present case, the ECtHR takes a step further and emphasises a peculiar characteristic that may render (certain) asylum seekers particularly vulnerable. It is not a mere shift from the vulnerability of a group (asylum seekers) to that of one another (sexual minorities); on the contrary, the Court acknowledges specifically the risks of a double vulnerability. First, it attaches weight to the belonging to a sexual minority and to the consequences of being a gay man in detention; and, second, it links this to his condition as an asylum seeker.
Hence, when it comes to deprivation of liberty, the assessment of asylum seekers’ conditions needs to duly consider all those factors that might exacerbate their precarious situation and add an extra layer of vulnerability: the result is that vulnerability is framed in a more individualised way. Conceptualised in these terms, vulnerability can serve to reinforce asylum seekers’ procedural and substantial rights, in particular by limiting State’s arbitrariness and requiring the application of a more stringent necessity test when it comes to the deprivation of liberty.
On the other hand, problems of elusiveness and broadness of this notion remain, as Judge Sajò highlighted in his separate opinion in the M.S.S. v Belgium and Greece case. Such criticism reveals the ‘open-ended’ nature of the vulnerable group concept (see Peroni & Timmer 2013) which risks to undermine the importance of vulnerability and downplay it to a merely vague and redundant concept. However, any effort to strictly establish vulnerability criteria, or to provide a clear-cut definition of this concept will not definitively overcome such shortcomings. As the ECtHR jurisprudence shows, vulnerability is a nuanced, flexible and layered notion; hence, any attempt to encapsulate it in a rigid definition is unlikely to succeed.
It seems more important to implement a vulnerability approach to the existing legal instruments when dealing with individuals requiring specific care. In EU Asylum Law, vulnerability is mentioned as a criterion to provide heightened protection to certain asylum seekers. Article 21 of the Reception Conditions Directive 20133/33/EU requires Member States to ‘take into account the specific situation of vulnerable persons’ by considering their special needs, particularly regarding detention. Similarly, the Procedure Directive 2013/32/EU imposes duties to pay attention to the applicant’s vulnerability and individual circumstances, especially in asylum determination procedures (Article 31). Notably, sexual orientation is regarded as a factor determining special procedural guarantees, for example in the context of the asylum interview (Article 15).
Mainstreaming a vulnerability-based approach in the context of access to international protection is paramount especially regarding border and accelerated procedures. Here, it is of utmost importance to promptly identify vulnerable individuals, who might be at risk because of the reduced guarantees that such procedures entail. The Draft Proposal for a Regulation on Common Procedures (currently under discussion to replace the Procedure Directive) seems to take into account this, by establishing that vulnerable applicants may be exempted from border and accelerated procedures. It remains to be seen how these safeguards will result in the final text and, most of all, whether implementation will be able to keep up to such standards.
Notwithstanding the encouraging findings of O.M. v Hungary, vulnerability is far from being a systematic and undisputed notion. Nevertheless, as Peroni and Timmer stated, the ECtHR’s jurisprudence and its engagement with the concept of vulnerability can be ‘a step towards a more inclusive universal human rights subject’. The obligations to protect persons with special needs are enshrined in EU Asylum Law and derive from international instruments; hence, the ECtHR approach can help complete and enhance this system of protection, by providing a link between vulnerability and human rights, eventually reminding States to their duties to adequately protect the most vulnerable ones.