'Vulnerability’ in the Case-Law of Belgian Asylum Courts: Time to Move Beyond a Formal Approach

January 31, 2022

A ‘formal’ approach to vulnerability may guide the decision-making process. But it also fails to understand that vulnerabilities can affect the ability of asylum seekers to cope with the administrative requirements of the asylum procedure. Zoé Crine explains the difficulties in this blog post.

In Belgian law, asylum seekers’ specific needs must be assessed and identified at different stages of the asylum procedure. These stages are much debated in the case law of Belgian asylum courts, where ‘vulnerability’ is often invoked in an all-encompassing way to refer to the multiple individual factors that may explain discrepancies and inconsistencies in the asylum seeker’s statements, and/or that are relevant when evaluating the fear of persecution in the home country.

The numerous and increasing references to ‘vulnerability’ in Belgian law raise multiple issues for judges, social workers and public servants in charge of dealing with asylum applications. These issues were extensively discussed in the  Belgian VULNER report. What these issues have in common is that they question the legal usefulness and purpose of the concept of vulnerability, given the difficulty of identifying the legal consequences of being identified as vulnerable.  

Judgment no. 259 533 of 24 August 2021 by the Belgian asylum court provides an interesting illustration of how the analysis of the vulnerabilities faced by asylum seekers can have concrete legal consequences. In that case, the Belgian asylum court quashed a decision to refuse recognition of refugee status after expressing criticism of how the asylum hearing was conducted by the asylum authority. In a nutshell, the applicant, of Guinean origin, fled her country after being forcibly married and subjected to genital mutilation. On appeal, she argued that her extreme vulnerability, which she substantiated by medical certificates that demonstrated severe psychological disorders, was not taken into consideration during the examination of her asylum application.

The approach taken by the asylum authority was purely formal. On the one hand, it acknowledged the applicant’s special procedural needs. On the other, it limited their consequences, stressing that they do not suffice to explain a general lack of consistency in the applicant’s statements.  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              This case illustrates one legal consequence of being identified as ‘vulnerable’, which focusses on the procedural aspects: vulnerability is viewed as a parameter to be considered, in a very “formal” way, in the examination of asylum applications. The asylum authority limited itself to pointing out that the required procedural guarantees have been granted in accordance with the law. It failed to consider the broader consequences of the applicant’s vulnerable position, including how it impacts her abilities to make consistent statements.

Yet, this very “formal” vision of vulnerability may come into conflict with its real potential to guide the decision-making process in a way that is both sensitive and adapted to positions of weakness. A formal approach may generate practical accommodations in the procedure (such as conducting the interview in a room that is accessible to a person in a wheelchair). Such an approach fails to fully consider actual vulnerabilities, which can go beyond logistical considerations and result from a complex set of multiple, intersecting and ever-evolving factors. It also departs from the holistic and multidisciplinary approach recommended by the UNHCR to Belgium, which is required to understand the actual abilities of asylum seekers to cope with the administrative requirements of the asylum procedure and, ultimately, their need for protection.

In a nutshell, this approach, based on a “formal” vision of vulnerability, turns a blind eye to any essential questions that go beyond the mere practical organization of the asylum interview (questions of technicality), but which examine the risk of persecution, including the assessment of the credibility of the asylum seeker’s statement (questions on the merits and content of the case). 

The current legal framework could serve as the basis for a more comprehensive approach to asylum seekers’ vulnerabilities. The relevant Belgian legislation (the 1980 Aliens Act) requires the asylum authority to consider the applicant's "individual situation" when assessing his or her asylum application. The applicant’s vulnerabilities, which are substantiated with documentary evidence, fall among the individual circumstances that must be considered.

Vulnerability could thus play a useful role not only in identifying special procedural needs but also, for example, in assessing the ability of an extremely vulnerable applicant to take an active part in the asylum procedure and to present consistent statements. This understanding of vulnerability could support another legal approach to vulnerability, and reflect the leeway judges have in deciding who should be considered as particularly vulnerable.

It is ultimately for decision-makers on the ground to develop their daily practices in a way that adequately considers the real vulnerabilities experienced by asylum seekers and which they continue to face. The challenges are multiple in a European asylum policy that perceives migration primarily as a security issue and that undermines the legal obligations of states to establish adequate standards of reception and care that fully address the vulnerabilities faced by migrants and asylum seekers. But this step forward is needed, to prevent vulnerability from becoming a mere buzzword.

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