In recent years, the European Court of Human Rights has drawn on the complex concept of vulnerability with increased frequency. The Court’s landmark judgment in M.S.S. thrust migrant vulnerability firmly into the Court’s jurisprudential corpus, by accepting that asylum seekers are inherently deserving of heightened protection under the Convention. However, while M.S.S. further extended vulnerability’s reach into the arena of cross-border migration, Khlaifia brought this extension to an abrupt halt. In the latter, the Grand Chamber declined an invitation to recognise as vulnerable all those undertaking hazardous journeys across the Mediterranean, irrespective of the reasons for their migration. For the Grand Chamber, the journey, taken alone, was seemingly insufficient to establish particular vulnerability under the Convention.
This research argues that this conclusion was the natural, if flawed, consequence of the Court continuing to latch onto a simplistic, outdated, and arguably prejudicial, understanding of vulnerability, one which views vulnerability of the individual as contingent upon membership of an accepted vulnerable sub-population group. Many non-asylum-seeking migrants have as a result been left exposed. The manner in which the Court continues to operationalise vulnerability in this context indeed demonstrates the harsh reality of the concept’s potential as a tool for exclusion.