The Role of Vulnerability and Stereotyping in Addressing Discrimination Against Migrants

by Dr Dolores Morondo Taramundi

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To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.

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1. Introduction

For a long time, Article 14 of the ECHR has been considered too weak a foundation for a robust anti-discrimination doctrine. This provision has two specific characteristics that pull in opposite directions: on the one hand, its non-exhaustive list of discrimination grounds has allowed the ECtHR to expand protected groups under the term ‘other status’ (such as age or sexual orientation). On the other hand, Article 14 is non-autonomous—that is, it cannot be invoked independently. Consequently, claims under Article 14 are often treated as ancillary to those made under the primary Convention right(s) at issue, with some scholars even describing the provision as ‘parasitic’.

This position paper starts from the idea that an alternative interpretation of Article 14 is possible. Article 14 is, in fact, a horizontal provision that affects all other ECHR rights; it is, therefore, an inherent dimension of every right contained in the Convention, making the rights in the Convention truly human rights, universally granted. Rather than a secondary element, it is a defining feature of the ECHR framework. That said, it is true that the Court has frequently deemed it unnecessary to examine Article 14 claims when a violation (or lack thereof) of the right(s) primarily invoked had already been established. This approach has constrained the development of the ECtHR’s anti-discrimination doctrine, particularly by neglecting to assess whether rights were violated on discriminatory grounds—and thus as manifestations of a wider and deeper harm, i.e. systemic inequality, such as sexism or racism.

This paper examines how recent developments in the ECtHR’s anti-discrimination jurisprudence may promote or hinder the redress of systemic inequality. Over the past 15 years, two key trends have emerged (often highlighted by Strasbourg Observers—happy anniversary!): a) the concept of ‘vulnerability’ (including related formulations such as ‘vulnerable group’ or ‘situation of vulnerability’) has gained prominence in the Court’s rulings and in scholarly analyses of its anti-discrimination doctrine; and b) the role of stereotypes (or ‘stereotyping’) has become a significant factor in equality and non-discrimination reasoning.

Focusing on discrimination claims brought by migrants, this paper explores how these developments interact—specifically, how the ‘vulnerability’ framework aligns (or conflicts) with the Court’s anti-stereotyping approach, and whether this dynamic advances or obstructs the recognition of systemic harms, such as racism and xenophobia.

2. Vulnerability and Stereotyping in deciding discrimination

The literature on the role played by both vulnerability and stereotypes in the ECtHR’s recent case law is quite extensive. Regarding the former, the Court’s jurisprudence has developed both through admissibility decisions and in the substantive reasoning of judgments. Notably, the Court has neither provided a clear definition of vulnerability nor established criteria to determine when a claimant qualifies as vulnerable. Scholars observe that the concept is deployed to achieve diverse outcomes, such as narrowing the margin of appreciation, relaxing admissibility rules, or shifting the burden of proof.

Many scholars have considered vulnerability as a ‘promising’ heuristic tool for the Court’s reasoning, particularly because—when combined with the non-exhaustive list of grounds of discrimination in Article 14—it offers a post-identitarian framework for understanding inequality. This approach moves beyond liberal notions of disembodied subjects, engaging instead with contextual power dynamics and hierarchies. However, the concept—and the Court’s application of it—has faced criticism. Critics argue that it risks naturalising social conditions (e.g., poverty, marginalisation) as inherent group traits or excluding those deemed ‘not vulnerable enough’.

By contrast, stereotypes hold a more intrinsic connection to equality and discrimination. Article 5 of CEDAW long ago identified stereotypes and gender roles as root causes of discrimination, mandating their elimination alongside direct and indirect discrimination. The ECtHR explicitly introduced anti-stereotyping reasoning in its discrimination cases in 2012 and has since produced notable judgments, primarily on gender discrimination. Like other courts (e.g., the Inter-American Court of Human Rights, the Mexican Supreme Court of the Nation, or the Spanish Constitutional Court), the anti-stereotyping reasoning of the ECtHR is developed as a stricter scrutiny of the equality judgment (with a consequent narrower margin of appreciation for the State and a need to provide a higher level of justification for actions that appear stereotyped).

Yet, the ECtHR’s anti-stereotyping approach faces some limitations regarding: a) the identification of stereotypes (determining what constitutes a stereotype and thus triggers strict scrutiny); b) the expansion of the doctrine beyond single-axis gender roles (e.g., applying the reasoning to intersectional cases involving migrant women); and c) the lack of consistent application of an anti-discriminatory approach (failing to assess Article 14 in some stereotyping cases)

3. Discrimination against migrants

These two developments in the ECtHR’s jurisprudence operate differently in anti-discrimination reasoning – a distinction that becomes particularly pronounced in cases concerning migrants alleging discrimination.

While the ECtHR has extensive case law on migration, Article 14 claims remain rare in such cases. Admittedly, migration is a difficult ‘ground’ when it comes to the prohibition of discrimination, even in those systems with open or non-exhaustive clauses, such as the ECHR. Although the anti-discrimination clause generally protects migrants from differential treatment based on sex, race, ethnicity, or religion, their migration status itself is not an explicit protected ground. States retain broad discretion to treat migrants (particularly those without legal status) differently from citizens. The Court has addressed both aspects: (1) migration status as an ‘other status’ under Article 14, and (2) discrimination against migrants on other protected grounds. This paper focuses on the latter, specifically racist and xenophobic discrimination or violence against migrants/refugees.

Proving racial discrimination before the ECtHR has long been difficult. Although the Court recognises racial discrimination as ‘a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction’, its jurisprudence shows inconsistent protection, especially where demonstrating racist intent is concerned. This inconsistency is particularly acute in migrant cases.

For example, in racial profiling – a pervasive practice in Europe according to ECRI and FRA – ‘racist attitudes’ have largely been confined to explicit verbal abuse, ignoring structural discrimination by state authorities of certain racial or ethnic groups. In B.S. v. Spain (2012), the Court ruled that Spanish authorities failed to investigate racial slurs but it did not question that the raids and surveillance of the city areas on racial basis was a discriminatory practice in itself. Ten years later, in Muhammad v. Spain (2022), Spanish courts again failed to investigate racist attitudes (derogatory insults) and racial profiling in identity checks. In both cases, the evidence provided by the plaintiffs was disregarded by the Spanish courts, which decided solely on the grounds of the reports of the police officers involved. Evidence of the structural character of racial profiling and racially motivated police abuse was overlooked by the ECtHR, focusing instead on individual instances of racist language or discriminatory intent.

In B.S., the Court found an Article 14 violation by framing the claimant’s intersectional discrimination (as a migrant African woman in sex work) through the lenses of vulnerability. With this change, the Court shifted the focus from the structural racism of racial profiling to the victim’s particular personal circumstances, which seems to call for a special consideration which is not due, obviously, to victims of those same practices – racial profiling and police abuse – who are not deemed vulnerable. In Muhammad, for example, no vulnerability argument was made, and no Article 14 violation was found.

The vulnerability argument, thus, risks individualising structural harm: victims receive protection only if deemed ‘vulnerable’, while others subjected to the same racist practices (but lacking this label) are excluded. Vulnerability thus could be considered an equity argument (the justice of the concrete case), but it appears at odds with – or even hinders – the assessment of structural dimensions of inequality. As previously mentioned, it remains unclear what precisely constitutes a plaintiff’s vulnerability. Consequently, vulnerability not only obstructs the evaluation of structural discrimination but may also fail to protect victims in vulnerable circumstances if the Court does not engage with the argument. This was evident in M. and Others v. Italy and Bulgaria (2012) where the victim’s de facto vulnerability prompted protective measures by Italian authorities (removal from her husband’s home, placement in a state protection facility, and transfer to her mother’s custody). Yet, the Court did not raised the vulnerability argument and no violation of Article 14 was found.

A promising development in this regard may be seen in Wa Baile v. Switzerland (2024), which shifts focus from individual racist attitudes among police officers to the systemic nature of racial profiling in identity checks. The judgment also introduces a reversal of the burden of proof—a typical element of anti-discrimination law previously overlooked in ECtHR rulings.[i]

Anti-stereotyping might play an important role in strengthening the ECtHR antidiscrimination doctrine in racial discrimination against migrants. Both in the assessed racial profiling cases or in M. and Others v. Italy and Bulgaria, stereotypes played a significant role in justifying racist practices by State authorities. The text of the judgments of the ECtHR bears witness to it in the description of the facts. In Muhammad, for example, the facts of the case start with the applicant and his friend being ‘stopped by two National Police officers while walking on a street in Barcelona where pickpocketing and theft are relatively frequent’. So-called ‘predictive’ profiling links crimes with racialised persons, based on stereotypes which remain unproblematised. In M. and Others, stereotypes about Roma culture (e.g., Roma marriage) led Italian authorities to exempt the case from domestic legislation on sexual and domestic violence—despite involving an underage victim. Additionally, stereotypes regarding the credibility of women reporting abuse, particularly Roma women, justified the authorities’ failure to properly investigate forced marriage and assaults. Instead, the plaintiffs themselves faced persecution. Nevertheless, the Court declined to engage with Article 14, as no overtly ‘racist attitudes’ (such as slurs or insults) were present—arguably a lesser harm than the structural violence endured by the victims at the hands of the police.

4. Concluding points

Over the last 15 years, the ECtHR has activated Article 14, once dismissed as the Cinderella of anti-discrimination law, demonstrating its potential. Nevertheless, it is essential to get over the perception of Article 14 as merely ‘secondary’ or ‘auxiliary’ due to its non-autonomous character. The principles of equality and non-discrimination are fundamental to human rights: they are what differentiates universal rights from group privileges. In my view, the Court should seize every opportunity to engage with Article 14 and address the structural dimensions of inequality in human rights violations across Europe.

Migrants have not benefited equally from Article 14 protections. In Europe, they face pervasive racist and neo-colonial treatment. To counter this, the Court must confront structural racism, strengthen the reversal of the burden of proof, and admit evidence of structural discrimination—such as reports from the ECRI, FRA, reputable NGOs, and statistical data.

The concept of vulnerability, framed as equity or empathy, offers only limited protection (and only to very specific victims) while obstructing the development of robust anti-discrimination reasoning. Where inequality is at stake, this argument should be used with extreme caution.

Stereotypes, in my view, function primarily as justificatory mechanisms for inequality: they render racism, sexism and social hierarchies invisible or acceptable. The Court could adopt a presumption of their existence (requiring proof of their absence in individual cases) and apply a strict scrutiny approach to equality assessments (via the objective justification test).

[i] It is early to know whether this is an acknowledgment of the structural dimension of discrimination in racial profiling, or it is based on the specific circumstances of one of the national rulings, as observed by De Vries, Karin: The ECtHR Advances the Battle against Racial Profiling in Wa Baile c. Suisse, VerfBlog, 2024/3/06, https://verfassungsblog.de/profiling-in-wa-baile/