M.S.S. v. Belgium and Greece: When is a Group Vulnerable?

Any attempt to comment exhaustively on the recent landmark ruling of the Grand Chamber in M.S.S. v Belgium and Greece in one page would be bound to fail. It is an extraordinarily rich judgment. In this post, I therefore limit my comments to one single aspect I find particularly intriguing: the concept of group vulnerability. The Court has referred to several groups as “vulnerable” in its case law. One example is the Roma minority who, “as a result of their history” – the Court has held – “has become a specific type of disadvantaged and vulnerable minority” in need of special protection (Oršuš). Another example concerns persons with mental disabilities. They have been regarded by the Court as a “particularly vulnerable group in society, who has suffered considerable discrimination in the past” (Alajos Kiss).

In M.S.S., the Court speaks, once again, of the applicant as a member of a vulnerable group. The case deals with the expulsion of an Afghan asylum seeker to Greece by Belgium in application of the EU Dublin Regulation. Asylum seekers, the Court holds, are a “particularly underprivileged and vulnerable population group in need of special protection.” What makes this group vulnerable in the eyes of the Court? What are its implications for this particular case? Should asylum seekers as such be deemed vulnerable? Judge Sajó thinks not. In his separate opinion in M.S.S, he contends that asylum seekers cannot be unconditionally considered a particularly vulnerable group in the sense the Court has used this term, that is, as a group “historically subject to prejudice with lasting consequences, resulting in their social exclusion.” But, should all groups fit into the idea of vulnerability that has apparently prevailed in the Court’s case law so far? In what follows, I address Judge Sajó’s criticism. But first, I briefly attempt to understand how the Court weighs up the vulnerable position of the applicant as an asylum seeker in its Article 3 analysis concerning both his detention and living conditions in Greece.  Continue reading