07-09-Dupont-DJHR

BOOK REVIEWS / CRÍTICAS BIBLIOGRÁFICAS

La Spina, Encarnación. 2020. La vulnerabilidad de las personas refugiadas ante el reto de la integración. Cizur Menor: Aranzadi Thomson Reuters. 251 p.

doi: http://dx.doi.org/10.18543/djhr.2469

E-published: June 2022

In anti-discrimination law, and especially in the case law of the European Court of Human Rights (ECtHR), the examination of a group’s vulnerability has become a crucial way for judges to determine whether its members should be protected by special measures aiming to redress disadvantage. While this approach enables more context-sensitive analyses than the closed lists of protected grounds of discrimination usually found in national laws (eg. age, disability, sexual orientation, sex, race and ethnicity, among others), the turn to a lexicon of vulnerability rather than, say, prejudice, poverty or powerlessness has not been without critics. Prominent among these is the charge that vulnerability potentially casts the source of disadvantage as inherent to the person rather than constructed by social structures, and can therefore spur stereotypical modes of legal reasoning.

Dr. Encarnación La Spina’s monograph entitled La vulnerabilidad de las personas refugiadas ante el reto de la integración (Aranzadi, 2020) contributes to the debate by documenting, in an eminently comparative and critical perspective, how legislators, courts and policymakers have understood and responded to vulnerability among asylum seekers, refugees and beneficiaries of international protection. These three closely related legal statuses, which the author sometimes uses interchangeably but generally differentiates from the “economic” or “irregular” migrant, in fact correspond to two distinct stages of the migration trajectory: a first one while an application for refugee or international protection status is being processed, and a second one between the recognition of this status and eventual naturalization or return to the country of origin. In practice most of the book focuses on asylum seekers and the challenges they face while living in state-provided accommodation. Rather than being the product of a theoretically driven choice, this angle seems rooted in the empirical pull of the legal instruments, case law and policies discussed throughout the 251 pages.

The volume is divided into four argumentative parts, respectively covering the philosophical debate on vulnerability; its reflection in global, regional and national refugee law; the case law developed over the last decade by the ECtHR, the European Court of Justice (ECJ) and the courts and tribunals of EU member states; and the integration policies implemented at the national and sub-national levels, largely independently from European intervention.

After an introduction that highlights the contemporary diversity of migration flows and associated vulnerabilities, Chapter 1 defines vulnerability as an exposure to threats, disasters, poverty and the effects of globalisation. Drawing on Martha Fineman and a string of other theorists of vulnerability, the chapter argues that this exposure is inherent to the human condition as all human beings are necessarily dependent on others throughout their life course. However vulnerability is also unevenly distributed (everyone is vulnerable, but some are more vulnerable than others) as a result of complex interactions between individuals and groups. In the case of asylum seekers and refugees, vulnerability can be understood as the outcome of multiple juxtaposed factors that compound pre-existing harms in the societies where they settle. For instance, it may depend on their means of living, the type of treatment or persecution suffered, their age, family relations, health condition or eventual disability. The author draws a useful distinction between external vulnerabilities, linked to the circumstances of displacement and transit at the border or in the receiving country, and internal vulnerabilities, flowing from personal characteristics or the situation in the country of origin. On a critical note, she observes that external vulnerabilities tend to be underplayed so as to obscure the impact of receiving states’ laws and policies and emphasise asylum seekers’ individual decision to move. Vulnerability is also stratified and intersectional, in the sense that it can affect differently the members of a given social category. Some of its forms arise from the combination of several factors and, as such, can only be addressed through a detailed analysis of individual experiences. On a moral level, vulnerability works as a ground of deservingness that justifies the more favourable treatment of asylum seekers, refugees and beneficiaries of international protection with respect to a priori less deserving migrants.

Turning to the legal framework, Chapter 2 sets out the four factors identified by UN committees as shaping the vulnerability of asylum seekers, refugees and beneficiaries of international protection: 1) the situation prevailing in the country where an asylum seeker may be returned; 2) the asylum seeker’s previous experience in that country and, consequently, the treatment they are likely to receive upon return; 3) the asylum seeker’ situation while their case is being examined, and 4) whether the receiving state has obtained from the state of return any guarantees that the person returned will be treated adequately in light of their personal circumstances. At the regional level, the author points out that the inter-American human rights system places greater emphasis than the European one on the external vulnerability of certain subjects or groups. For instance, this system recognises that migrants’ vulnerability is exacerbated by growing economic and social disparities between countries and by marginalisation from the global economy. In the EU’s Common European Asylum System, the concept of vulnerability plays an important role but its interpretation by member states has led to considerable divergences and opened the door to “vulnerability shopping”. In line with the findings of the philosophical section, the Chapter notes that states have been more open to recognising internal than external factors of vulnerability. Worryingly if unsurprisingly, the recognition of internal vulnerabilities often comes hand in hand with stereotyping and a “culture of disbelief” toward asylum seekers’ claims. This is further catalysed by the variety of mechanisms used to identify vulnerability-based special needs, from specialised state agencies to non-governmental organisations, administrative circulars, delegation of regulation at the regional level or even non-regulation. The chapter ends with a description of the measures required under EU law to accommodate special needs in asylum reception centres and during asylum procedures, especially interviews, and with a synthesis of the main vulnerable categories addressed in international refugee law.

Chapter 3 delves in the normative framework by laying out the specific standards derived from the case law. It opens up with a detailed review of the MSS case, decided in 2011, where the ECtHR set a leading precedent by recognising that vulnerability is inextricably tied to the condition of asylum seeker. According to the landmark decision, the two key (and, one should add, internal) factors underlying this vulnerability are the past experiences endured by the asylum seeker and the ensuing trauma. Henceforth it becomes vital for a claim to succeed to produce evidence of the harms suffered in the country of origin, which can be compounded by the treatment received in the country of destination. While acknowledging the pathbreaking nature of the judgement, the author also expresses sympathy toward Justice Sajo’s dissenting opinion, which rejects that asylum seekers should collectively be considered vulnerable given they lack a history of stigmatisation. In Sajo’s view, the problems they face mainly flow from the stratification of rights created by state laws, a qualitatively different matter. The judge does accept, however, that the claimant himself has been made vulnerable by extreme poverty, the fear of being attacked and robbed, and the long delay in evaluating his claim. The author concludes that MSS has opened more questions than it has answered, introducing vulnerability as a legal tool to assess the situation of asylum seekers but leaving considerable uncertainty as to the underlying factors of discrimination.

Later ECtHR judgements have striven to identify especially vulnerable sub-categories of asylum seekers, where traumatic migratory experiences are compounded by belonging to a historically discriminated group and reliance on the receiving state to fulfil basic needs. In this respect, jurisprudence has highlighted delays in the conduct of vulnerability assessments and the absence of proactive equality measures as two important indicators of state-created vulnerability, which can cast doubts on the good faith of the authorities. When it comes to minors, the Court has paid special attention to the duration and conditions of their detention. Detention can be considered degrading in violation of Article 3 of the European Convention of Human Rights (freedom from torture and inhuman or degrading treatment) if it humiliates or degrades, if it shows a lack of respect or diminishes dignity, or if it triggers feelings of fear, anxiety or inferiority liable to breach moral and physical integrity. For young children this can happen in centres that are not adapted to minors, where hostility reigns and privacy is reduced to a minimum. In addition, asylum seekers with special health needs such as pregnant women can suffer a violation of their rights due to overpopulation in dormitories, lack of heating and adequate blankets, the absence of female personnel, and lack of access to outdoor recreation.

In the ECJ, several decisions have revolved around the transfer of asylum seekers to their first safe country of arrival for their application to be examined under the Dublin regulations. Case law has established that when a vulnerable refugee legally resides in a member state and depends on an asylum seeker, their state of residence has a duty to process the asylum application. More generally vulnerability has been treated as a humanitarian ground for states to depart from the first safe country principle and to limit transfers. Notably, the Court has found that transfers can violate rights independently from the asylum conditions prevailing in the first safe country, when the displacement itself poses a threat to health. In relation to LGB applicants, detailed questions on sexual activity have been found to breach privacy and psychological assessments have been found insufficient in themselves to ground an asylum decision. In an exercise of comparative jurisprudence at the national level, the chapter suggests that the vulnerable groups that have received the most attention are those of unaccompanied minors and, to a lesser extent, victims of trafficking and female genital mutilation. In relation to the former, the Spanish Supreme Court recently ruled that age tests must only be carried out exceptionally when a self-identified minor manifestly appears over 18 years of age. Any available official ID must take precedence over age tests, and the asylum seeker’s refusal to undergo an age test cannot be a decisive reason to suspect them to be over 18.

In Chapter 4, the book leaves the terrain of minimal legal standards and enters the more fluid, empirical and aspirational one of the policies implemented both to comply with these standards and to go beyond them. Rather than vulnerability per se, the overarching theme of this section is the contested concept of “integration”, understood as a mutual adaptation between refugees and the host society. The thread that ties the two ideas together is that refugees’ special vulnerability creates distinct integration needs and, at the same time, overcoming it constitutes a litmus test for the success of integration. The chapter notes that the EU-wide concern for refugee integration is a relatively recent one, as prior to the 2015 Syrian crisis an expectation prevailed that refugees would return to their countries of origin when conditions improved. From 2015 onwards it becomes increasingly obvious that many aspire to stay in the long term, and integration becomes part of the policy agenda. The main difference between integration policies for refugees and other migrants is found in the initial phase of state-provided accommodation, where integration is strongly institutionalised, strictly guided and assistive in nature. Once this phase ends and recognised refugees or beneficiaries of international protection move to generalist accommodation, integration tends to be mainstreamed within services for migrants or vulnerable groups within the local population. Another factor that reduces the availability of refugee-specific integration policies is a governmental view that integration should not start before an asylum seeker has received some form of international protection. In line with this logic, all European states have availed themselves of their discretion to restrict access to their labour market for a period between two and nine months after arrival. The author argues that the delay can be problematic given that asylum seekers must interact with the local population from the moment of their arrival, for instance to make use of health services or send children to school.

The book flags two exceptions to the restrictive trend in integration policies for asylum seekers. The first is the “civic integration” courses on the host society’s history, institutions, values and customs, introduced by several national authorities as a response to refugees’ perceived long-term integration deficit (visible in low educational levels and participation in the labour market and a high likelihood of working in jobs that do not correspond to their qualifications). The second is the case of children, whose right to access an education comparable to that of the local population within a space of three months is guaranteed by EU regulations. To facilitate this, local authorities in particular have developed various integration strategies such as multi-lingual and introduction classes, one-stop information points on the education system, and the evaluation of qualifications. In practice however access to education remains hampered by linguistic and bureaucratic barriers, waiting lists and the distance between asylum reception centres and schools. Overall, the Chapter underscores that the Common European Asylum System’s aim of harmonising reception policies to reduce “asylum shopping” among EU member states has not been completely achieved, and that differences often stem from countries’ broader standards of living as well as from the policies in place before the introduction of EU regulations.

The conclusion offers an overview of the main findings, reiterating the strong influence of a group-based conception of vulnerability in the legal framework, the role of states themselves in creating vulnerability among asylum seekers, their corollary obligation to take measures to prevent inhuman and degrading living conditions, and the uneven policy responses developed at the national, regional and local levels, often in collaboration with the third sector.

While it does not always make for easy reading, the book offers a rigorous and up-to-date legal and policy analysis that will be invaluable for activist scholars and legal practitioners alike. The breath-taking amount of research underlying the discussion is particularly obvious in the number of legal cases cited, often with succinct and helpful summary of the facts, legal arguments, and findings. Given its focus on legal references to vulnerability and cases of good practice in the policy domain, the book mainly adopts an optimistic outlook but also flags important gaps by drawing on the perspective of vulnerability theory and some empirical evidence. Supported by a number of prestigious research grants, including a Ramón y Cajal post-doctoral scholarship from the Spanish Ministry of Science and Innovation, it will establish Dr. La Spina as a scholarly reference in the field and open up new avenues for the understanding and mitigation of refugee vulnerability.

Pier-Luc Dupont
University of Bristol