Reassessing the Relationship between Equality and Vulnerability in relation to Refugees and Asylum Seekers in the ECtHR: The MSS Case 10 Years On

Abstract

This article reassesses the impact of the concept of vulnerability as it emerges from the MSS v Belgium and Greece case of the European Court of Human Rights, and subsequent developments relating to the rights of refugees and asylum seekers. This examination is performed in light of the human rights principle of equality. The choice of the principle of equality is justified by frequent claims that vulnerability allows more substantive equality outcomes. Examining the concrete functions and consequences of the recourse to vulnerability in relation to refugees and asylum seekers in post-MSS judgments, the article argues that, in the European setting at least, vulnerability produces a set of negative consequences. More specifically, the article demonstrates that the deployment of the language of vulnerability results in the positioning of refugees and asylum seekers as passive recipients of benevolence rather than as active rights claimants, the introduction of additional layers of subjectively constructed stratification, and the erasure of the specificity of refugees' and asylum seekers' experience. It is contended that these negative consequences of deploying the concept of vulnerability can be mitigated if recourse to vulnerability is accompanied by a highly skilled technical discussion of the principles of substantive equality as they are known in international human rights law, including such aspects of substantive equality as structural discrimination and intersectionality.