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21
European Agenda on Migration
Towards Vulnerable Persons
MAGDALENA PÓŁTORAK1
ORCID: 0000-0002-0712-6509
University of Silesia in Katowice
The purpose of the paper is to analyse the European Agenda on Migration from the perspective of
people who, for some reason, are susceptible to harm or have found themselves in a challenging
situation (i.e. are “vulnerable”), and answer the question of whether the Agenda has taken notice
of this issue in any way.
-
the EAM objectives in terms of vulnerable persons. On the basis of several communications, proposals,
working documents and reports that the EU has formulated since May 2015, the Agenda’s theoretical
assumptions have been compared with their implementation in practice. Part four attempts to answer
(as the latest achievement in the discussed area) with particular attention paid to vulnerable persons.
the latest literature on the subject.
Key words: European Agenda on Migration, vulnerable persons, migrants in vulnerable situations,
New Pact on Migration and Asylum
Introduction
2 (hereafter: EAM or Agen-
da) adoption provides an adequate opportunity to assess the EU “strategy” of dealing
1 Contact: magdalena.poltorak@us.edu.pl
2 A European Agenda On Migration, Brussels https://ec.europa.
-
formation/docs/communication_on_the_european_agenda_on_migration_en.pdf (Accessed: 14.09.2020).
Studia Migracyjne – Przegląd Po-
lonijny, 2(180): 21–40, DOI: 10.4467/25444972SMPP.21.018.13774
Migration Studies– Review ofPolish Diaspora
nr 2 (180)/2021, http://www.ejournals.eu/Studia-Migracyjne/
DOI: 10.4467/25444972SMPP.21.018.13774
22
with the refugee-migration crisis quite objectively3. Quite because the European
Union faced many other problems at the same time, and some said that it has
4 (i.e. Dinan et al. 2017, Barcik and
What is more, in 2017, the White paper on the future of Europe and the way for-
ward
5
-
and that real actions would be taken to eradicate climate change and global warm-
ing. Even more so, probably no one anticipated that the world would have to face
While it is evident that each crisis somehow affects individuals, the impact is
particularly strong on those who are considered “weaker”. Moreover, if crises over-
lap, the realisation of the most fundamental human rights is questioned even more.
of the European Commission6) from the perspective of people who, for some reason,
are susceptible to harm or have found themselves in a challenging situation (i.e. are
focus only on program objectives without considering their actual realisation, especially
-
nerability with particular emphasis on the role of the adopted perspective and sit-
uation of migrants. Then I move on to analysis of the EAM objectives in terms
-
acquis.
Lastly, I present the general objectives towards vulnerable persons formulated in the
New Pact on Migration and Asylum (as the EU latest achievement in discussed area).
analysis
3
186–187), who proposes to look at this phenomenon as a highly conditional arrangement, and the need
of focusing around these same conditions during discussions between supporters and opponents of mass
border crossings.
4
Yugoslavia.
5
White paper on the future of Europe, https://ec.europa.eu/commission/future-europe/white-paper-
future-europe_en (Accessed: 14.09.2020).
6
The communications of the Commission are so-called atypical acts (not provided for by the Treaties),
which generally present new policy programmes.
23
-
I have used the comparative method as well, compiling successive documents (such
as communications, proposals, working documents and reports). The research sample
consisted of more than twenty operational documents from 2015–2020, adopted
by EU institutions to implement the objectives of the Agenda, in which the term
“vulnerability” has appeared.
The complexity of vulnerability
of migration and the Agenda.
-
tionally nuanced phenomenon. Depending on the adopted research perspective,
the vulnerability can be treated both as a kind of “blessing” (e.g. when it facilitates
access to granting asylum procedures or solutions), and a “curse” (e.g. when it causes
stigmatisation correlated with dependency, weakness etc.). This feature may also be
a source of abuse, which I discuss later on in the article.
-
even though the terms “vulnerability” or
-
One can agree, however, that
-
in the majority of the EU documents, the term “vulnerable person” refers to minors,
unaccompanied minors, disabled people, elderly people, pregnant women, single
parents with minor children, and persons who have been subjected to torture, rape
-
7. Nevertheless, as the term has its origin in the Latin term vulnus (which
be emphasised that the EU institutions have started using the term “vulnerable” in
7
EC Glossary, https://ec.europa.eu/home-affairs/e-library/glossary/vulnerable-person_enhttps://
ec.europa.eu/home-affairs/e-library/glossary/vulnerable-person_en (Accessed: 14.09.2020).
24
other hand, harm and suffering feature centrally in most accounts of vulnerability”.
It should also be emphasised that harm may take various forms: bodily, moral, psy-
the quality and quantity of resources we possess or can command”.
Therefore, it can be observed that “vulnerability” does not function as a stand-
in abstracto.
feature or circumstances that can be quite easily demonstrated or proven. While
adopting such an approach, however, one should bear in mind that creating a spe-
individual groups. Instead, she proposes it should be perceived as a “universal, inevi-
table, enduring aspect of the human condition” and calls for the state’s proper role to
law) that group vulnerability reasoning entails some risk of essentialism, stigmatisa-
tion, victimisation and paternalism that consequently leads to the misleading conclu-
sion that these groups are the only, “true” and quintessential vulnerable subjects in
autonomous (Perroni, Timmer 2013). This way inequality is legitimised.
8
) “have
learnt” how to “manifest” their vulnerability to facilitate getting help or increase the
-
nancy or placing women at the front and on the outside edges of the boat full of
refugees while crossing the sea. Such situations, undoubtedly, indicate some gaps
or weakness of the vulnerability determination system.
This proves there is a need for in-depth research to determine whether “vulner-
8
to bear in mind problems with distinguishing between refugees and economic migrants, which in turn
https://edition.
, https://www.nbcnews.com/news/world/
europe-grapples-distinction-between-refugees-economic-migrants-n965161 (Accessed: 6.11.2020).
25
Kmak shows (2015), implementation of asylum policy and control practices of the
state’s administration sometimes merely “force” migrants to adapt to the ideas of the
“real” refugee and show they deserve protection, so both sides of the coin should
be taken into account.
910 and Lyra Jakuleviciene (2016), ac-
cording to whom vulnerable persons can be perceived as a new sub-group of asy-
lum seekers. She has based her assumption on the Stockholm Programme (2010),
consequently follow this path. Secondly, the International Organisation on Migra-
tion (hereafter: IOM) has constructed the migrant vulnerability model that refers to
recover, as a result of the unique interaction of individual, household/family, community
and structural characteristics and conditions.
11.
-
tive suggested by the IOM seems to be appropriate for solutions such as the EAM as
and Guidelines (2017: 5), the concept of “migrants in vulnerable situations” has
been developed, and it stands for the “persons who are unable virtually to enjoy their
human rights, are at increased risk of violations and abuse and who, accordingly,
-
proaches to the protection of these asylum seekers in national asylum processes has
Thus, currently “vulnerability” seems to be “a useful notion of accounting for
the varied but nonetheless concrete circumstances faced by migrants, asylum seek-
9 M.S.S. v. Belgium and Greece
of European courts’ interpretation of vulnerable migrants’ rights, based on a combination of empirical
research, interviews, and theoretical analysis was made by Moritz Baumgärtel (2019).
10
Resettlement Submission Categories, https://www.unhcr.org/558bff849.pdf (Accessed:
6.11.2020)
11 IOM, The Determinants Of Migrant Vulnerability,
DMM/MPA/1-part1-thedomv.pdf (Accessed: 14.09.2020).
26
not inherently vulnerable”, but in their case, due to multiple and intersecting forms
of discrimination, inequality and other factors, full enjoyment of human rights is
limited. So, ensuring them access to appropriate protection always requires all in-
volved actors’ awareness of possible circumstances and an individual assessment. In
this regard I am going to investigate the EAM.
Vulnerable (persons) in the EAM
Before moving on to the EAM objectives towards vulnerable persons, it should be an-
It is confusing and symptomatic that even when it comes to “human rights
lawyers” it is likely that the correlation between these two concepts is slightly con-
troversial and complicated. This is mostly because when considering whether human
negative) answers seem correct. As Anna Gear (2007) points out, on the one hand,
the whole human rights system is founded on a concern for embodied vulnerability
and the liberal legal subject has been imported into the human rights structure:
other hand, referring to feminist legal theory, she argues that the many groups that
12, dispossessed, people of colour, and
(particularly!) asylum seekers “fall outside the scope of the purportedly universal pro-
tection of human rights” (Perroni, Timmer 2013: 1061). The conclusion is, therefore,
that despite guarantees within the framework of the human rights protection system,
they require at least theoretical frames of “additional” particular legal protection, and
political tools (such as the EAM in the case of seeking-asylum migrants13) can provide
14.
The EAM is composed of the Introduction and three parts (Immediate actions,
clou of the
12
“a priori as <vulnerable> can increase the chances of protection within the EU asylum and refugee
which reduce agency and autonomy”. A similar position is presented by E.C. Gilson, who argues that
being “labelled” as “vulnerable” can suggest dependency, weakness, susceptibility to harm, and violabil-
ity (Gilson 2016).
13
these situations can be associated with reasons for leaving the country of origin, or with situations that
migrants encounter during their journey and at a destination and associated with a person’s identity,
condition or circumstances.
14 Although the doctrine has also taken the opposite view, see i.e: K. Smith and L. Waite (2019) or
Sözer (2020).
27
on the English-language version of the document15, references to vulnerable persons
To begin with, it is legitimate to invoke part I “Immediate actions”, which was
intended to be an answer “to the need for swift and determined action in response to
the human tragedy in the whole of the Mediterranean”.
it is vulnerable migrants who in particular become victims of smuggling
16
and human
vulnerable
migrants17
-
petrated by criminal networks. The difference between the two is that in the former,
migrants willingly engage in the irregular migration process by paying for the services
of a smuggler in order to cross an international border, while in the latter they are the
of a border. In reality, the two phenomena are not easy to disentangle18 as persons who
voluntarily start their journeys are also vulnerable to networks
19.
raised with reference to resettlement. The EAM provides that
the EU has a duty to contribute its share in helping displaced persons in clear need of in-
ternational protection (…) Such vulnerable people cannot be left to resort to smug-
reach the EU20.
15 Research on other language versions requires more in-depth analysis than just the literal layer of
the document.
16
is a voice in the doctrine with regard to Syrians that indicates “smuggling’s moral economy” and the
and moral nature of agent-customer transactions.
17 Emphasis added.
18 So, they need to be tackled in a consistent manner. It seems that raising awareness of the staff
19
20 -
-
-
of international protection of 2017 the “vulnerability” category refers only to “groups of migrants from
Libya” (C(2017) 6504).
28
Nevertheless, as stressed above, particular attention should be paid to part III:
pillars to manage migration and Europe’s duty to protect: a strong common asy-
lum policy.
In the framework of the coherent implementation of the Common European Asylum
(EASO), the Commission will give further guidance to improve standards on reception
and simple quality indicators, and reinforcing the protection of the fundamental rights
of asylum-seekers, paying particular attention to the needs of vulnerable groups, such
vulnerabilities of children, not only those
having a migrant’s background, the Commission will develop a comprehensive strategy
to follow up on the Action Plan on Unaccompanied Minors (2011–2014) to cover missing
and unaccompanied children.
refugee crisis in 2015 revealed the need for in-depth CEAS reform. This resulted
(2) a regulation to reform the Dublin system, (3) a regulation to amend EURODAC,
(4) a regulation to establish the EU Agency for Asylum (replacing EASO), (5) a new
regulation to replace the Asylum Procedure Directive, (6) a new regulation to replace
-
ception Conditions Directive. The last three documents, in particular, deserve special
attention on the part of vulnerable persons.
As Lyra Jakuleviciene (2016) pointed out, from the very beginning of the creation
as the term “vulnerable” was in use explicite in the so-called second asylum package
(ECRE 2017: 13–17), in the light of CEAS reform, the concept of vulnerability has
slightly changed21.
It means that pursuant to Article 21 of Directive 2013/33/EU22
vulnerable persons
such as minors, unaccompanied minors, disabled people, elderly people, preg-
nant women, single parents with minor children, victims of human trafcking,
persons with serious illnesses, persons with mental disorders and persons who
have been subjected to torture, rape or other serious forms of psychological,
21 As stressed in the ECRE report (2017: 17) “The treatment of vulnerable groups in the EU has
been one of the priority areas of the reform of the CEAS proposed by the Commission in 2016. Whereas
the changes proposed with respect to the position of applicants with special needs have been more
positively received”.
22 The in-force Reception Directive
second-asylum package documents) the broadest catalogue of vulnerable persons, reference to which is
made in other EU documents. Emphasis added.
29
physical or sexual violence, such as victims of female genital mutilation23, in the
national law implementing this Directive”,
respectively with “applicants in need of special procedural guarantees”, “persons with
fact that the categories of persons (with special needs) in principle24 have remained
a shift from a categorisation among refugees, migrants and asylum seekers (who is
‘vulnerable’?) to a procedural approach (how are vulnerabilities being addressed?),
international protection.
According to the ECRE report (2017), Member States seem to apply their own
interpretation of the concept of “vulnerability”, which consequently leads to severe dis-
crepancies among domestic legal regimes regarding who constitutes vulnerable asylum
-
ticed a recent shift from “forced migrants’ vulnerability” to (newly) “vulnerable forced
migrants”, that in practice leads to provide humanitarian assistance only to segments
of forced migrants (because ‘the vulnerable’ becomes an unevenly distributed label).
Presumably, these inconsistencies could be reduced when cooperation between the
25.
has formulated several communications, proposals, working documents and reports26.
presents only selected ones. Nevertheless, this part of the research aims to compare
the theoretical assumptions of the EAM towards vulnerable persons with actual EU
23 Emphasis added.
24
The Parliament's position on the Reception Conditions Directive reform advocates for inclusion
persons, non-believers, apostates and religious minorities among others (European Parliament 2017).
25 Practical Guide on age assessment and
Practical Guide on Family Tracing and information that among agency activities are: thorough training,
quality support and country of origin information. Based on: https://easo.europa.eu/asylum-support-train-
ing/vulnerable-groups
EASO Operating Plans (Greece and Italy) or Support Plans (Cyprus and Bulgaria).
26 European Agenda on Migrationhttps://ec.europa.eu/home-affairs/what-
we-do/policies/european-agenda-migration/proposal-implementation-package_en (Accessed: 20.09.2020).
30
As for the situation of vulnerable persons, it should be emphasised that the EU
from the very beginning paid particular attention to women (including pregnant
ones)27 and children
chronological order.
In 2015 these two categories were distinguished with regard to migrant smug-
-
functioning of the hotspots in Greece, and here respectively: avoidance of coer-
-
The worsening situation in Syria in 2016 revealed the need of ensuring by the EU
both: the basic assistance (such as food, water, shelter and education) for the most
vulnerable people on-site, as well as humanitarian aid for refugees living in Turkey
(according to the EU-Turkey Joint Action Plan), which should focus in particular on
child protection, women’s health, education in emergencies (also informal), cash
transfers and non-food items (tents etc.). Simultaneously, the EC stressed the neces-
28
. Again, attention was drawn here to smugglers and human
29.
Reference to women and minors (as vulnerable migrants) appeared in 2017
of the EU institutions were: strengthened anti-smuggling actions to provide actual
forcibly displaced to areas where is no real governance, engage with the Libyan
27 -
Kivilcim and Ozgur Baklacioglu, 2017).
28
Greek mainland to have their asylum claim heard”. As a consequence, being “labelled” as vulnerable is
from the better reception conditions on the Greek mainland”.
29
Ibidem.
31
authorities to ensure that the conditions in centres for migrants are improved and
-
EC Communication on the pro-
tection of children in migration emphasised that especially in Afghanistan and Syria
-
conditions and capacity both in Greece and in Italy need permanent improvement
situation in migrant detention centres in Libya too, and promote alternatives to
detention including by creating dedicated accommodation for vulnerable persons,
The implementation of the EAM in 2018 predominantly focused on help pro-
and strengthening reception capacity in the Member States, in particular when taking
into consideration places and protection programmes adapted for unaccompanied
necessity for improving conditions in the hotspots, addressing the needs of vulnerable
it was underlined that the hotspot approach has been crucial in helping to stabilise
the situation on the Greek islands, due to the action focused on improving living,
-
ranean route, Morocco (as a country of both transit and destination) received help
for providing protection and access to legal assistance with a particular focus on the
Apart from pointing to women and children, the documents implementing the
EAM’s objectives towards vulnerable persons have formulated other categories rather
broadly. In other words, they generally referred to the vulnerable groups/asylum-
quality of reception centres on the Eastern Mediterranean route and cash transfers
received within the implementation of the EU-Turkey statement (COM(2017) 669
32
material and medical assistance in detention centres and in host communities in
(and swift resettlement) of the most vulnerable persons from Libya to Niger, migra-
programmes along the Central Mediterranean route and providing direct medical
-
covering the basic needs of the most vulnerable refugees and migrants in Bosnia and
-
The above mentioned brief overview of selected EU actions under the EAM imple-
mentation, allows for making an observation that the problem of vulnerability was
-
grant smuggling, the CEAS reform and enhancing legal avenues to Europe, through
EU-Turkey statement. There-
-
ture under the proposed reform of the CEAS has changed from “vulnerable persons”
to “applicants with special needs” (what seems to go hand in hand with the universally
accepted conception of “migrants in vulnerable situations” and a more procedural
The protection of vulnerable migrants in the EU
during the COVID-19 pandemic
of this part of the paper is to check whether or not, in the face of a global pandemic,
the EU has paid attention to vulnerable persons’ particular needs.
In the middle of April 2020, the Commission adopted the Guidance on the imple-
mentation of relevant EU provisions in the area of asylum and return procedures and
on resettlement
30
. Although non-binding, this document is a fairly comprehensive
30
2020/C 126/02,
(Accessed: 20.09.2020)
33
solution, and the indication of vulnerable persons appears here in relation to each
-
antees with the need to keep social distance. According to the provisions referring
to asylum, the Commission recommends that even if face-to-face contact between
-
ticular attention should be paid to the situation of vulnerable persons31, families
and minors (including unaccompanied minors)”.
well-known universal recommendation on treating all applicants for international pro-
As for Dublin interviews, the Commission recommends where necessary and as far
an opportunity to submit further relevant information and “Member States should
prioritise the processing of cases concerning unaccompanied minors, other vulner-
able persons, or family unity”.
In turn, as for material reception conditions, the Guidance stipulates that when it
comes to newly-opened collective reception facilities (i.e. emergency shelters), Mem-
ber States should ensure appropriate social distancing between applicants, as well
as isolation of those at risk and paying “particular attention to vulnerable groups”
Moreover, “vulnerable groups
-
health (including mental health) of detained vulnerable applicants.
necessity of preventing and
protection measures (such as social distancing and other precautionary measures)
should be applied in a proportionate and non-discriminatory manner to all illegally
staying third-country nationals “with particular attention paid to the situation and
needs of vulnerable people”. As for detention or other appropriate facilities, Mem-
ber States should respect “the right to family life in case of couples and families with
children, as well as the situation of vulnerable people”.
The second document worth noting was the European Parliament resolution
of 17 April 2020 on EU coordinated action to combat the COVID-19 pandemic and
its consequences (2020/2616(RSP))
32
vulnerable situations and includes migrants in this category (par. 4). At the same time,
it calls the Commission and the Member States to “prioritise aid and crisis-mitigation
31 Emphasis added.
32
2020/2616 (RSP), https://www.europarl.europa.eu/doceo/document/TA-9-2020-0054_EN.html
(Accessed: 20.09.2020)
34
measures for the most vulnerable citizens (…) who all run the greatest risk of be-
stresses the importance to make aid available to victims of violence (par. 35).
in reality, their disadvantageous situation (which was foreseeable) was further com-
-
procedures and actions – was often impossible due to restrictions, remote contact
33
. The problem with
this situation, every month is crucial since the age of 18 means the end of protection.
-
crowded centres with foreign adults, often become victims of violence (Schulz 2020).
-
tain a residence and work permit, which has proved to be particularly damaging for
migrants-caregivers as well. In the reality of widespread isolation, the loss of work,
hampered access to health care or displays of racism towards people who perform daily
activities in favour of the so-called “highest risk” groups, carry a risk of “sick society”,
such as: limited possibilities of undertaking treatment, staying in reception conditions
discrimination, fear of strangers and sometimes even hatred towards them34. In the
well), the implementation of the objectives concerning integration programs, lan-
guage learning in the host country or remote education of children turned out to
be “law in books” only.
Instead of conclusions: New Pact on Migration and Asylum
towards vulnerable persons35
Conducted research affords the conclusion that both in the EAM and in documents
-
33
spaces (parks, squares) in Athens.
34
Apart Together survey. Preliminary overview of refugees and migrants self-reported
impact of COVID-19, https://www.who.int/publications/i/item/9789240017924 (Accessed: 28.12.2020).
35 A New Pact on Migration and Asylum
35
its own rules. Moreover, the situation of vulnerable persons (severe and complicat-
-
to vulnerable persons being treated more seriously.
After years of the functioning of the asylum and migration system in kind of
“emergency mode”, in September 202036 the Commission proposed a New Pact on
Migration and Asylum (hereafter: Pact)37, which the EC head Ursula von der Leyen
38. The New Pact basi-
cally builds on the 2016 reform by adding additional elements to ensure a balanced,
common framework bringing together all aspects of asylum and migration policy.
It is based on the balance between solidarity and responsibility.
This clearly political document has also proved not to be indifferent to the needs of
vulnerable persons. In the framework of the new procedures to establish status swiftly
on arrival in the case where securing necessary guarantees is unfeasible, the most vulner-
39.
A common framework for solidarity and responsibility-sharing includes taking into
-
-
nota bene, is entirely
consistent with the previously mentioned documents and the obligation under the
UN Convention on the Rights of the Child– gives the needs of children in migration
priority, regarding them as “particularly vulnerable”. It means that tailored processes
and families formed in transit countries). The Pact also gives priority to the relocation
of unaccompanied children and appointing special representatives for them. The
from the EU budget for the Member States that will participate in search and rescue
operations of vulnerable persons (par. 2.4).
countries and humanitarian evacuation of the most vulnerable from Libya (in the
36 The publication of a New Pact on Migration & Asylum, announced by the von der Leyen Commis-
37 https://ec.europa.
(Accessed: 25.09.2020).
38
and solidarity, https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1706 (Accessed: 25.09.2020).
39 Relevant information on countries’ mechanisms to identify vulnerable applicants in the case of
that a similar solution (however conditionally) has already been regulated in the recast Asylum Procedure
Directive.
36
framework of Emergency Transit Mechanisms in Niger and Rwanda) (par. 6.2), as well
as developing legal pathways to Europe and resettlement as a “tried and tested way
to protect the most vulnerable refugees” (par. 6.6).
-
pression of a well-thought out approach, makes the impression of consistency with
the universal principles and guidelines referring to “migrants in vulnerable situations”
and, unlike the proposed reform of the CEAS of 2016, treats the issue of migration
resembles a global approach proposed in the UN New York Declaration for Refugees
and Migrants of 2016 and the Global Compacts adopted as a result.
It is also clear that the Pact is an attempt to adopt all its components simultane-
ously and deserves special attention (since the Commission seems to conclude a lack
everything depends on the political will of particular authorities, one can only hope
that the transposition of the New Pact on Migration and Asylum in Member States’
Simon Behrman’s observation (2018: 57) that
apparently most sympathetic to their plight, a problem to be managed, not a subject
capable of seeking and demanding protection on their own terms.
seeking asylum in the EU, it should be clearly emphasised that this approach is correct
(empowering those susceptible to harm or in a challenging situation). Referring
of 1951, it seems that “subjective perceptions of the State authorities” should be
-
ment, conducted according to the highest standards. Otherwise, any generalisations
or “strategic” use of vulnerability by migrants itself, combined with the inconsisten-
cies and gaps in the EU strategy for dealing with the migration and refugee crisis,
can lead to the situation that a number of the potentially vulnerable persons will
approach the number of all the others seeking refuge in the EU, making adopted
that adequate protection of the rights of vulnerable migrants is a challenge for all
actors involved: the courts, the legal representatives, European society at large, and
37
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