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By Karin Aberg, Doctoral Candidate in International Law at the University of Gothenburg.

Between 2016 and 2019, most asylum seekers on the Greek hotspots had to undergo a vulnerability  assessment. If found vulnerable, they were exempted from return to Turkey under the EU-Turkey Agreement and free to travel to the Greek mainland. Two groups were concerned. First, those who would not be safe in the third country; Second, those who for personal reasons cannot be managed through camps and border procedures, due to physical or social circumstances.

Vulnerability in EU Law

In May 2015, the European Commission launched the ‘hotspot approach’ as a response to the peaking numbers of migrants who came to seek international protection. In 2016, through the European Coast and Border Guard Regulation , the hotspots were legally defined and assigned the aim of ‘managing an existing or potential disproportionate migratory challenge’ (Art 2 (10)). Originally, migrants were to be screened by Frontex and the Greek police at the hotspots to distinguish between those who could be returned immediately, those who wished to apply for asylum and those whose situation was unclear. However, in March 2016, the hotspots were assigned a different role as the EU entered into the EU-Turkey Agreement , setting out that ‘[a]ll new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey’.

Under EU law, the return of asylum seekers to Turkey had its legal basis in Article 33 of the Asylum Procedures Directive. This Article establishes that a Member State is allowed to examine whether an asylum application is admissible before assessing its eligibility. An asylum claim may be found inadmissible, for example, in cases where a third-country is considered either a first country of asylum or a safe country. In addition, Member States are allowed to hold an asylum seeker at the border for up to four weeks to assess the admissibility (a so-called ‘border procedure’) under Article 43. In the Greek hotspots, three categories of asylum seekers were exempted from the border procedure: 

(1) those eligible for a transfer under the Dublin Regulation; 

(2) those for whom Turkey would not qualify as a safe third country; 

(3) those who were found vulnerable. In the national legislation on border procedures, the kind of vulnerability that allowed for an exemption was defined in Article 14(8) Greek Law 4375/2016. The definition covers:

      1. Unaccompanied minors, 
      2. Persons who have a disability or suffering from an incurable or serious illness, 
      3. The elderly, 
      4. Women in pregnancy or having recently given birth, 
      5. Single parents with minor children, 
      6. Victims of torture, rape or other serious forms of psychological, physical or sexual violence or exploitation, 
      7. Persons with a post-traumatic disorder, in particularly survivors and relatives of victims of ship-wrecks, 
      8. Victims of trafficking in human beings.

Under EU law, we can find a source of this in Recital 30 of the Asylum Procedures Directive (recast). It states: ‘Where adequate support cannot be provided to an applicant in need of special procedural guarantees in the framework of accelerated or border procedures, such an applicant should be exempted from those procedures’. The notion of ‘applicants in need of special procedural guarantees’ is not clearly defined in the Directive, but clarified in Recital 29, which sets out that such needs may arise from the individual’s ‘age, gender, sexual orientation, gender identity, disability, serious illness, mental disorders or as a consequence of torture, rape or other serious forms of psychological, physical or sexual violence.’

In general, the notion of ‘vulnerability’ can be found in a number of places in EU and human rights law. It is currently a buzzword, extensively advocated for by human rights organisations and increasingly endorsed by EU legislators as well as international law judges. Its popularity might give off the impression that the term carries a coherent and consistent meaning across the legal sources, which is incorrect. For example, in M.S.S. v. Belgium and Greece the European Court of Human Rights has stated that all asylum seekers should be considered vulnerable , whereas under the Common European Asylum System (CEAS) only certain categories of asylum seekers are vulnerable. While the word is becoming increasingly common, it appears to harbour different meanings in different contexts. However, under EU law, vulnerability appears to often be grounded in certain characteristics that might give rise to special needs (see for instance article 22 of Directive 2013/33 on reception conditions for asylum seekers). As such, the terms ‘vulnerable persons’ and ‘persons with special needs’ are often used interchangeably. In Greece, vulnerability served as an escape valve, releasing asylum seekers and relieving the reception facilities on the islands.

The Hotspot Vulnerability Procedure

The assessment of vulnerability among asylum seekers on the Greek islands was never fully standardised, and the exact details may have varied over time as well as between different hotspots. When arriving to the Greek islands, asylum seekers would be screened, registered, and identified by the Greek Police and/or by Frontex and directed to the camp. Shortly thereafter, an official asylum application would be lodged to a Registration Officer. At this point, the asylum seeker had to state their personal information, such as name, country of origin, names of parents, nationality, ethnicity, religion, state of health, and professional and educational background. The Registration Officer would also ask about family members and previous visits to Europe in order to assess whether the person was eligible for a transfer under the Dublin Regulation. Finally, the asylum seekers had to summarise their reasons for seeking international protection briefly.

Thereafter, each asylum seekers would be handed a card that stated their name, date of birth, and country of origin, accompanied by a photo of their face. This document would first be ‘red’, referring to a red watermark on one of the pages that indicates that the holder is not allowed to leave the island. If the asylum seeker were to attempt to reach the Greek mainland, he or she would be stopped at the airport or boat terminal due to the red stamp. This arrangement was commonly known as the ‘geographical restriction’. 

At the time of arrival, compulsory medical screenings and psycho-social assessments were supposed to take place. Ideally, the medical staff at the Greek Centre for Disease Control and Prevention (KEELPNO) would assess the level of vulnerability of the applicant and classify it as ‘high’, ‘medium’ or ‘low’. Being classified with a ‘high’ level of vulnerability would result in having the geographical restriction lifted. However, as the hotspots suffer from a severe shortage of medical staff, the identification of vulnerability through medical reports would at times be paused or delayed. At such times, the vulnerability procedure instead lied at the discretion of the case workers.

A few months after arrival, an admissibility interview was held with an EASO officer. After having checked that the asylum seeker’s personal information was correct, the EASO officer would question the asylum applicant about how they travelled to Greece. Next, the interview would move on to the assessment of vulnerability. It would begin with questions on the applicant’s health, medical conditions, medication, and injuries. The applicants were at times also asked about their situation in the camp and whether they were able to access all services, such as food handouts. In case the applicant had an injury or a disability, the officer would usually ask what caused it, moving the conversation to the applicant’s history before reaching Europe. Due to the nature of some vulnerability grounds, the questions of the admissibility interview would sometimes resemble those of a regular asylum interview, as it also concerned the asylum seeker’s experiences in the country of origin. For this reason, an eligibility interview was not always necessary.

Soon after the interview, the EASO officer would issue an opinion based on the applicant’s answers, the submitted medical reports and their own observations during the interview. This opinion summarised the applicant’s statements and included an assessment of their vulnerability, credibility, and risk of persecution or serious harm. It would also include a recommendation regarding the admissibility and eligibility of the asylum claim. The decision was formally taken by Greek case officers, who in practice would rely heavily on the recommendations by the EASO officers.

If the asylum seekers were found vulnerable, they were granted a new card without the red watermark and would regularly be transferred to the Greek mainland where their asylum procedure could continue. Due to a lack of sufficient facilities, vulnerable asylum seekers would however be kept on the islands for extended periods of time. If the asylum seeker was not found vulnerable, they would have five days to appeal the decision from the time of notification. If an appeal was lodged, it should have been examined within the next three days, leaving the applicant two days maximum to submit supplementary evidence. In case the second instance made the same finding, the asylum seeker would remain in the hotspots, at risk of being returned to Turkey. It used to be common for asylum seekers on the Greek hotspots to be declared vulnerable. In 2016, 57% were found vulnerable out of all who received a decision, 78% in 2017, 82% in 2018 and 91% in 2019 . According to the European Union Agency for Fundamental Rights, ‘the majority […] were women and children.’

To summarise, the vulnerability procedure on the hotspots resembled an asylum procedure in several regards. The burden of proof lied on the applicant and the procedure revolved around an interview, in a setting that resembled an interrogation. Unlike an asylum claim, however, the questions primarily concerned the applicant’s physical health and family situation. This gave rise to a favouring of medical reports, which played a more decisive role in regards to vulnerability compared to international protection claims. While the principle of non-refoulement requires a forward-looking assessment of what might happen to the applicant in case they are returned, the assessment of vulnerability tried to assert who the applicant was or particular experiences they might have had. Moreover, the procedural guarantees granted to the asylum seeker was significantly fewer than in a regular asylum procedure.

Vulnerability as an Exemption from Externalisation?

In the last decades, refugees’ access to rights has been the most widely debated topic of refugee studies. Privatisation, securitisation and externalisation have become the norm of migration control in the Global North. Since the end of the Cold War, countries that have organised their reception and protection mechanisms on a rights-sensitive basis (EU, US and Australia) have increasingly invested in deterrence measures, aimed at preventing migrants from entering. As described above, the vulnerability procedure does by no means replace the asylum procedure, but provides a tool for migration management that carries importance in relation to access to asylum. 

It is against the background of rights and externalisation that the hotspots should be understood. From the perspective of the asylum seekers who have recently arrived to the islands, the situation is marginally different compared to in the countries surrounding the EU. The European Asylum Support Office (now the EU Asylum Agency) makes in fact the decision as the Greek authorities always endorse EASO’s draft. The result of the hotspot system and the EU-Turkey Agreement was that the Greek islands were constructed as a non-territorial zone. In this context, vulnerability functioned as a relief from externalisation. As stated in the EU-Turkey Agreement, the aim was initially to return all new irregular migrants. When the Agreement was entered, the main rule became readmission and to be allowed to apply for asylum in Greece became the exception. As shown by Mariana Gkliati, the Greek Asylum Appeals Committees have systematically found Turkey to be a safe third country). Thereby, the border of the greatest importance for the asylum seekers became the one between the Greek islands and the Greek mainland, instead of the one between Greece and Turkey. 

This function of the vulnerability category appears to be in line with how the concept has been applied in resettlement procedures from third countries. As has been shown by Natalie Welfens and Yasemin Bekyol, to be considered vulnerable is essential in order to be resettled, both as Syrians under the ‘one-to-one’ mechanism under the EU-Turkey Agreement, as well as under the UNHCR’s resettlement criteria. In short, the category of vulnerability functions as a tool for moving the asylum seeker from externalised spaces into Europe. But who is at an advantage in this procedure, and what other effects does it bring?

On the one hand, the main characteristic of this vulnerability assessment is that it overemphasises documentable health issues and deemphasizes vulnerabilities that are less easy to detect. The model is focused on the corporeal and the medical. However, as the decision-makers are not trained in medicine, translating medical knowledge through a legal assessment runs a high risk of creating miscommunications. On the other end, it could be argued that the increased focus on medical assessments frees the asylum seeker from having to speak for themselves. Instead of words, the body becomes the site of truth for the migrant. In the vulnerability procedure there is no need to give an account of the worst day in one’s life. People who might lack experience in speaking with public authorities would not be at a disadvantage. As such, the vulnerability procedure manages to avoid some of the most common critiques of an interview-based  individualised procedure.

Looking Forward: Vulnerability in the New Pact on migration and asylum

In December 2021, the Commission presented a proposal for a Regulation addressing situations of instrumentalisation in the field of migration and asylum (the “Instrumentalisation Proposal”). This proposal reproduces, to a large extent, the emergency measures made available to Latvia, Lithuania and Poland through a EU Commission proposal to a Council decision proposed two weeks earlier. This ‘emergency asylum management procedure’ resembles the hotspot system, and provides a framework for Member States to decide on the admissibility or substance of asylum applications at the border. This Regulation would make it possible for Member States to apply the asylum border procedure to all applications and to follow specific procedural provisions.

Recital 7 of this proposal sets up that if ‘it becomes apparent that an applicant is in need of special procedural guarantees and adequate support cannot be provided in the context of the procedure at the border […] the Member State concerned should not apply, or cease to apply, the emergency asylum management procedure at the border.’ While this is a slightly awkward formulation, the intention is most likely to indicate that the applicant who has special needs should be exempted from this procedure. This particular need could be discovered either in the border procedure or under the proposed screening procedure (discussed by Lyra Jakuleviciene). It is however noteworthy that the Instrumentalisation Proposal only mentions ‘apparent’ cases, and the proposal for a Screening Regulation only mentions ‘evident cases’, rendering it unlikely that groups whose particular needs are more difficult to uncover, for instance mental health issues or traumatic experiences, are discovered. As such, this framework risks worsening the previously discussed issues of overemphasising documentable health issues. 

Between 2016 and 2019, ‘vulnerability’ functioned as an exemption from hotspots and return for those who met the requirements for specific types of hardships. Looking at recent proposals, it seems vulnerability will continue to play a part in border management, though it remains obscure exactly how. In cases where the vulnerability procedure provides a pathway to access asylum, it risks leaving behind those who cannot easily translate their experience into evidence.