August 29, 2025
by Georgios A. Serghides[i]
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A note from the team:
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.
Today’s post is a written version of the speech delivered by Georgios Serghides, Judge at the ECtHR, which he delivered as discussant in one of the panels at the symposium entitled ‘Stereotyped narratives of migration’.
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Madam Chair, esteemed co-panellists, distinguished guests, ladies and gentlemen,
I would like to begin by sincerely thanking the organisers of this seminar—the Strasbourg Observers 15th Anniversary Symposium, and especially Professor Eva Brems— for inviting me to participate in a timely and crucial discussion.
I am particularly honoured to do so in dialogue with insightful panellists—Dolores Morondo Taramundi, Elena Ghidoni, and Encarnación La Spina—whose work illuminates the Court’s engagement with vulnerability and stereotypes in migration-related cases. Their papers consider the tensions within the reasoning of the European Court of Human Rights (hereinafter ‘the Court’) and ask questions regarding whether the reasoning of the Court is stereotype-proof.
I will gratefully mention some of their perspectives as I go along.
So, let me begin.
The Court is the guardian of the effective protection of human rights. This goal is the gift of the European Convention on Human Rights (hereinafter ‘the Convention’).
Migration remains one of the most polarising and politically charged issues in Europe. The phenomenon of immigration presents many situations where the effective protection of human rights, particularly for refugees and asylum-seekers, is at risk. Courts play a vital role in ensuring that human rights law is able to temper majoritarian pressure for restrictive immigration policies and in protecting the most vulnerable.
The question ‘Is the ECtHR’s reasoning stereotype-proof?’ invites critical reflection on whether the Court is truly capable of interpreting and applying the Convention without being influenced by social, political, or cultural stereotypes—especially in cases involving migrants, minorities, or other vulnerable individuals and groups. As judges, when we see that a victim has a vulnerability, we take this fact seriously in our consideration. But judges are not always immune to the pull of narratives, assumptions, or stereotypes. There is always a risk of stereotyping when we make generalisations about vulnerability. This in itself can perpetuate discrimination, and defeat the purpose of our rights-protecting exercise (see here and here). But at the same time, not all generalisations are bad, for example, some generalisations are needed to understand group vulnerability. This is the dilemma of vulnerability. It is rightly argued that vulnerability, especially group vulnerability, ‘is a double-edged tool which should be handled with care’.
In this speech, I will discuss the dimensions of this challenge, and will make a proposal based on my experience from the bench to see what we can do about it. First, I will consider the Court’s application of the concept of vulnerability, and second, I will summarise the criticism of the concept, as has been ably covered by my fellow panellists. Third, I will present my view of vulnerability as a fact, an interpretative factor, and a normative concept, encompassing different types of vulnerability that guide the Court, but which must always be grounded in the factual situation and the overarching purpose of giving effect to rights. Fourth, I will reflect on some of my own separate opinions on this topic. I hope that I will present an approach to vulnerability which responds to the criticisms, avoids damaging stereotypes, and most importantly, assists in the effective protection of human rights.
First, I will deal with the Court’s application of vulnerability. The Court has significantly developed its recognition of vulnerability (for more on this topic, see here). In M.S.S. v. Belgium and Greece, the Court declared that asylum seekers constitute a ‘particularly underprivileged and vulnerable population group in need of special protection’ (para 251). The Court has further acknowledged the ‘extreme vulnerability’ of child migrants in Tarakhel, the vulnerability of children generally, and particularly children facing undignified detention conditions in Rahimi, and the most vulnerable position of illegal migrants who are unaccompanied minors in H.A. and Others v. Greece.
When considering Article 5 § 1 of the Convention, the Court has stated that in the context of some vulnerable groups, member States should pursue less coercive means than immigration detention. Such groups have included children, adults with a medical condition, and LGBT people in custody, whose safety needs assessment. A key component of the Court’s analysis in such circumstances is the availability—and fairness—of a vulnerability assessment, such as assessing the person’s age or health needs, to determine whether detention is necessary or appropriate (see here).
Vulnerability assessment is also key to States fulfilling their Article 3 obligations. The Court has found that the obligations of States under Article 3 concerning migrants vary depending on many vulnerability factors, including the situation of an unaccompanied child (in Rahimi), the health or personal history of a child (in Muskhadzhiyeva), a breastfeeding mother (in M.D. and A.D. v. France), a woman at an advanced stage of a complicated pregnancy (in H.M. and Others v. Hungary), and heavily pregnant women generally (in Mahmundi), as well as migrants suffering a medical condition such as advanced HIV-AIDS (in Yoh-Ekale Mwanje). As the Court put it in Mahamud, ‘individuals who are vulnerable because of their health may require further measures’ (para 85).
The Court has also sometimes considered vulnerability, without necessarily labelling it as such, when assessing whether deporting someone to their country of origin would violate Article 3 due to their real risk of ill-treatment upon return.[ii] Such risks have included, for example, where the applicant was a separated woman returning to Afghanistan (in N. v. Sweden), where the applicant faced gender-based abuse for marrying in a different religious group in Guinea (in R.D. v. France), and where a homosexual applicant was at risk of ill-treatment on return to Gambia (in B and C v. Switzerland). The Court has recently held that a government must ‘assess the risks’ of treatment contrary to Article 3 before removing people seeking asylum (M.A. and Z.R. v. Cyprus).
However, these cases did not involve the Court saying that if you are, for example, a separated woman, that you were especially vulnerable as a person in all circumstances. The Court’s analysis involved looking at these attributes and whether they entailed vulnerability as a matter of fact and a risk of a violation of rights in the specific circumstances. This distinction is important, and I will return to it shortly.
While this case-law has marked an important acknowledgment of the precarious conditions many asylum seekers face, it has also opened the door to another risk: over-generalisation, or stereotyping, about vulnerability.
Now, I will turn to the criticisms of vulnerability.
As this panel has clearly expressed, vulnerability-based analysis is open to a variety of criticisms. As Judge Sajó warned in his separate opinion in M.S.S. v. Belgium and Greece, asylum-seekers ‘are not a homogeneous group’ or automatically subject to similar historical prejudice and related group-based discrimination as some other groups may be (para 15).
Generalisation can be dangerous. If the Court refers to an applicant’s vulnerability but fails to link it meaningfully to its analysis, it leaves the relationship between vulnerability and the legal outcome unclear. This is not only an issue for judicial transparency, but also one which increases a risk of judicial short-cuts. One possible short-cut, which is a risk for judges just as much as in general social life, is stereotyping.
As panellist Dolores has shown us today, the concept of ‘vulnerability’ can both empower and constrain. While it helps recognise structural harm, it also risks casting certain group members as inherently ‘unequal’ and less autonomous than other individuals. She also rightly observes that ‘stereotypes are … justificatory mechanisms of inequality: they render racism, sexism and social hierarchies invisible or acceptable’. Panellist Encarnación, in turn, has incisively challenged the dichotomy between ‘vulnerable’ and ‘invulnerable’ migrants, particularly where irregular status is used to obscure or deny the existence of harm. She further argues that ‘through stereotyped categories, irregular entry activates a presumption of invulnerability that serialise all irregular migrants as non-vulnerable subjects’. She adds that ‘reinforcing the exclusionary effect of this vulnerability reasoning, the ECtHR can serialise only few genuine asylum seekers or refugees as vulnerable, excluding necessarily another’s.’ Panellist Elena’s exploration of the limits of the anti-stereotyping principle in cases concerning migrant families underscores how implicit biases continue to shape understandings of what constitutes a ‘normal’ or ‘ideal’ family, regrettably denying migrant families the same recognition and protection granted to others despite the presence of de facto personal and emotional ties.
At is strongest, such criticism sees vulnerability-based approaches as engaging in and perpetuating harmful stereotypes. These, of course, can reflect and replicate discrimination. This is especially important because of the central role stereotypes play in negative public narratives about migrants and refugees. They are often reduced to simplistic categories, such as passive victims deserving pity, or on the contrary branded as ‘illegal immigrants’, dangerous outsiders exploiting host countries and frequently associated with criminality (see here).
Legal systems are not immune to such dichotomies. Courts may sometimes reinforce, rather than challenge, these binaries by constructing some migrants as truly deserving, and leaving others to be mere ‘illegal migrants’. If this kind of stereotyping occurs, it means the legal analysis has not been grounded in a careful individual assessment. This is particularly concerning in migration cases, where individuals’ life stories, risks, and capacities are exceptionally diverse (see here and here), even within a given group. It can perpetuate a hierarchy of suffering, in which only some groups—such as children, the disabled, or asylum-seekers—are seen as deserving of protection, while others fall outside the scope of legal empathy (see here and here).
So, what can we do about this challenge?
Ιn responding to this question, it is first necessary to briefly outline the different kinds of vulnerabilities that are identified and reasoned through by the Court, and then to turn to my own perspectives from my experience on the bench.
Let me begin by saying that the Court distinguishes between different kinds of vulnerability (for one attempt at systematic categorisation of such kinds, see here). These can broadly be categorised as group-based or individual. As explained by Boutier, ‘[g]roups are considered vulnerable due to a history of discrimination, while individuals are vulnerable based on certain traits, conditions, or situations.’ This distinction can be helpful in deciding whether vulnerability may be presumed. But in all cases, the Court should provide its full reasoning.
Inherent vulnerabilities — such as those of children, elderly people, persons with disabilities (for the latter, see here and here), or ethnic minorities in certain contexts — are generally group-based and are presumed by the Court without requiring detailed justification.[iii] Similarly, intersectional vulnerabilities, where individuals belong to multiple disadvantaged groups, such as a disabled asylum-seeker, are also primarily group-based, though in some cases they may require additional explanation to establish this compounded effect.
In contrast, situational vulnerabilities, such as those arising from detention, and constructed or contextual vulnerabilities, such as those arising from poverty, homelessness, or systemic institutional failings, are considered individual in nature. These are generally notpresumed and must be carefully reasoned by the Court with reference to the facts of the specific case. However, certain presumptions may still apply in contexts involving control or a profound power-imbalance, such as detention.
Understanding this distinction is essential, as it directly influences the intensity of the State’s obligations and the reasoning for finding a violation under the Convention.
I will now turn to my own perspectives from my experience on the bench regarding the nature and function of vulnerability.
In my view, vulnerability—of any kind—should be considered by the Court both as a relevant fact and as an interpretative factor or means that may trigger enhanced protection of human dignity, whether by member States in fulfilling their positive obligations or by the Court when adjudicating cases brought before it. In certain cases, this consideration may also support the pursuit of substantive equality.
Its relevance and weight, however, must always be evaluated in light of the particular circumstances of each case and in relation to the specific Convention provision at issue—typically Articles 2, 3, 5, 8, 14, or Article 2 of Protocol No. 1.
In such an evaluation, the Court must give reasons why it considers vulnerability in a particular case as a fact or as an interpretative factor, and must explain the extent to which it takes vulnerability into account. The Court has a duty to clearly explain why it considers an individual to be vulnerable, how and to what extent this vulnerability is relevant to the facts of the case, and why it justifies heightened protection of human dignity and the specific right at stake. If there is a presumption of vulnerability, the Court should state this in its reasoning and explain the extent to which it is relevant.
At the same time, the Court must take care to avoid employing the concept of vulnerability in a way that carries negative connotations. It should make every effort to minimise the risk of stigmatising or being paternalistic towards the applicant or the groups to which they belong, and must be especially vigilant not to undermine their autonomy or agency (see here).
Recognising vulnerability as both a fact and an interpretative factor serves a deeper purpose within the Convention system. As a fact, it grounds legal analysis in the lived reality of the applicants, often revealing an unequal starting point in their ability to exercise and enjoy Convention rights. As an interpretative factor, it invites the Court to take that inequality into account when determining the level of protection required. In either case, it should be used to enhance rights and reduce the risk of violations, and courts should exercise particular caution against any negative uses of vulnerability that may unintentionally foster stigmatisation.
However, rather than being limited to a dual function, vulnerability holds a threefold position within the Convention framework. It is not only a fact or an interpretative factor, but also a normative concept in its own right. Due to its intrinsic connection to human dignity and the corresponding obligations it entails, vulnerability influences both the interpretation and application of Convention provisions safeguarding human rights. It enables the Court to identify structural inequalities and actively shape jurisprudence that prioritises the protection of individuals whose dignity is most at risk. In this normative capacity, vulnerability helps define the scope and intensity of States’ obligations under the Convention, including by acting as a constraint on the breadth of their margin of appreciation.
The three dimensions of vulnerability are not isolated but mutually reinforcing: the factual dimension identifies the risk; the interpretative factor dimension justifies a legal response to that risk; and the normative dimension frames the response in terms of values and obligations, embedding vulnerability within systemic principles such as human dignity, equality, and effectiveness. Together, these dimensions enable courts to move from diagnosis to prescription—from identifying harm to crafting protective norms.
This threefold role reflects the evolving nature of the Convention as a ‘living instrument’ that must be interpreted in a way that is practical and effective, rather than theoretical or illusory. The principle that the Convention is a living instrument is a dimension of the broader principle of effectiveness. By acknowledging vulnerability, the Court ensures that the Convention remains responsive to the changing realities of human experience and the current needs of society (see here). This, in turn, strengthens the protection of human dignity and the realisation of Convention rights.
To me, as a judge looking at the facts of each case, the answer is not to avoid the issue of vulnerability. The answer is to directly engage with the factual scenario and risk levels in the specific circumstances as best we can, and always do so in pursuit of the primary goal of the effective maintenance and further realisation of Convention rights, as provided in the Preamble to the Convention.
It is true that in some contexts, the Court relies on a person’s status of some kind to define vulnerability. This is justified in certain areas, such as in family reunification, where a status—such as being a child or a parent—helps tell the important factual story we need to consider. In other areas, particularly those concerning asylum seekers and immigration detention, the Court weighs more heavily the specific, individual circumstances—such as whether a child is very young or close to adulthood, or how advanced a pregnancy is. Vulnerability analysis can make human rights law ‘more responsive to vulnerable and often marginalised people’.
In many situations, a person is vulnerable to a violation of their rights because they are vulnerable in fact, not only because they are a member of a group associated with a higher rate of risk of vulnerability (see here). The latter would mean they might or might not be vulnerable. The best test is, and always has been, the actual facts of the case.
Please allow me now to make reference to some of my opinions on vulnerability.
I have written separate opinions in several cases regarding the international protection of aliens, given their vulnerable position where expulsion from a country can mean that an applicant faces being subjected to ‘a risk of ill-treatment’ (see here, here, here and here). When considering vulnerability under Article 3 in Savran, and Khlaifia, I have emphasised the need to assess the individual’s vulnerable or difficult situation in the specific facts of the case, not simply their general legal status. For example, in Savran, I agreed that ‘the applicant was more vulnerable than an average “settled migrant” facing expulsion’, due to his particular health circumstances, which had to be taken into account.
In Y.P. v. Russia and Semenya, both Article 3 cases, I explicitly used or developed the concept of ‘situational vulnerability’ to highlight the unique constellation of factors that left the applicants especially exposed to harm. In Y.P. v. Russia, I described how applicants ‘may be considered vulnerable due to the particular situation in which they find themselves’, such as when ‘in the hands or under the authority of another, a State agent, and helpless to prevent an act of the latter that is of a degrading or ill-treating nature towards him or her’. This formulation of vulnerability allows the expansive use of the concept to protect rights, rather than only applying narrow categories formulated in previous judgments. Similarly, in Semenya, I argued that situational vulnerability could be created in a ‘forced choice’ human rights scenario, in that case regarding unwanted hormonal treatment.
As I said in Y.P. v. Russia: ‘it is clear that the instances of vulnerability should not be exhaustive, as vulnerability depends on the facts of each case’.
In conclusion, I wish to make the following observations and proposals.
I suggest that the Court, when engaging with a potentially vulnerable person in a case, should ask four questions:
First, is the person vulnerable, and to what extent?
Second, what type (or types) of vulnerability is pertinent for this analysis?
Third, how does this vulnerability connect as a fact and as an interpretative factor to the specific case? This will, of course, require clear and transparent reasoning.
And fourth, does this analysis effectively safeguard the applicant’s human rights, consistent with the Court’s duty to uphold substantive equality and prevent undue hardship?
These four questions do not avoid the issue of vulnerability. On the contrary, they respond to it directly. These questions lead to an analysis which, rather than avoiding vulnerability, offers a closer, more transparently reasoned assessment of vulnerability that is less likely to promote harmful stereotypes.
My proposal means that the Court is dealing with the question of vulnerability, rather than taking vulnerability into account without mentioning it, which it sometimes does. It is better to consistently apply the test, and always to refer to the principle of the effective protection of human rights, a principle which I have used in all of my separate opinions and in academic literature.[iv]
This structured approach allows the Court to engage with vulnerability not only as a fact and an interpretative factor but also in its third and deeper capacity — as a normative concept. Understanding vulnerability in its full complexity ensures that rights are not merely formal, but substantive and responsive.
Protecting human rights effectively takes judicial vision. Where law uses empathy, justice becomes human. Human dignity is protected by the will to turn our principles into lived reality. In doing so, the Court has the unique opportunity to build a fairer and more humane human rights order—one that continually evolves in response to the lived experiences of those it serves.
This responsibility becomes especially urgent in the context of migration. Stereotypes dehumanise; human rights must do the opposite. The Court has the capacity to resist dominant narratives that reduce people to simplified categories. If the Court is to remain a guardian of human rights and human dignity, it must strive to view migrants not through the lens of fear—fear that sees migration as a threat to society—or through the lens of assumption—a generalisation that overlooks the diversity and individuality of migrant experiences—but through the humane lens of vulnerability and individual justice.
In this way, the Court reinforces the enhanced positive obligations of member States, requiring them to take active steps to protect migrants from harm, uphold their rights, and ensure their dignity is respected.
The Court must aspire not only to be stereotype-proof—it must be stereotype-breaking: actively confronting harmful assumptions, reaffirming the humanity of each applicant, and setting legal standards that advance effectiveness and guide States toward a legal, ethical, and moral culture, grounded in the values of the Convention.
To do so, it must avoid blanket designations and develop a consistent approach that answers my four questions. The lodestar for this exercise must always remain the Court’s efforts to ensure the effective protection of human rights.
In doing so, the Court can ensure that its judgments do not inadvertently echo the reductive narratives that often dominate public debates about migration, but instead provide a transparent and humane framework for protecting the rights of those most in need.
Thank you.
[i] Speech delivered in my capacity as judge discussant on panel 1, on 8 May 2025, chaired by Associate Professor Alexandra Timmer, at the 15th Anniversary Symposium of the Strasbourg Observers. I am indebted to Marcus Dahl, DPhil candidate (Oxford) and Study Visitor at the Court under my supervision, for assisting me in the preparation of this article. I am also grateful to Thomas Straub, senior lawyer at the ECtHR, for his feedback on the Court’s case-law, and to James Brannan, a linguist at the Court, for proofreading the article.
[ii] In the cases cited in this paragraph, the Court did not explicitly discuss vulnerability in its analysis of the law, although vulnerability was mentioned in the factual background in N. v. Sweden and M.A. and Z.R. v. Cyprus.
[iii] As Kagiaros notes, the Court has occasionally used vulnerability to justify positive obligations that are objective and not subject to state-specific resource constraints—particularly in cases where individuals are wholly dependent on state support. See Dimitrios Kagiaros, ‘Vulnerability as a Path to a “Social Minimum”? An Analysis of ECtHR Jurisprudence’, in Toomas Kotkas, Ingrid Leijten and Frans Pennings (eds.), Specifying and Securing A Social Minimum in the Battle Against Poverty (Hart Publishing, 2019), 245, at p. 253.
[iv] See Georgios A. Serghides, The Principle of Effectiveness and its Overarching Role in the Interpretation and Application of the ECHR: The Norm of all Norms and the Method of All Methods (Strasbourg, 2022); Georgios A. Serghides, ‘The Principle of Effectiveness in the European Convention on Human Rights, in Particular its Relationship to the other Convention Principles’, Hague Yearbook of International Law, 2017, vol. 30, 1 et seq.; Georgios A. Serghides, ‘The Principle of Effectiveness as Used in Interpreting, Applying and Implementing the European Convention on Human Rights (its Nature, Mechanism and Significance)’, in Iulia Motoc, Paulo Pinto de Albuquerque and Krzysztof Wojtyczek (eds), New Developments in Constitutional Law – Essays in Honour of András Sajó (The Hague, 2018), 389 et seq.; and Georgios A. Serghides, ‘The Principle of Effectiveness and the European Convention on Human Rights’, in Dominique D’Abmbra, Peggy Ducoulombier, Gabriel Eckert, Jean-Paul Jacqué and Patrick Wachsmann (eds), Mélanges en L’Honneur de Florence Benoît-Rohmer – Les droits de l’homme, du Conseil de l’Europe à l’Union européenne (Bruylant, 2023), 535 et seq.
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