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Executive Summary This research report has been published as part of the EU Horizon 2020 VULNER research project (www.vulner.eu). Our project arose from the finding that the requirement to address migrants’ multiple and various vulnerabilities is flooding the policy discourse on asylum and migration at the EU and global levels (as illustrated by the UN Global Compact for Migration and its objective 7 to ‘reduce vulnerabilities’ in migration, and the current focus at the EU level on the establishment of vulnerability assessment mechanisms as part of asylum and border procedures as well as in resettlement programmes). Yet, if not based on scientific data and analyses that provide a clear and non-stereotyped understanding of the vulnerabilities that are lived and experienced by migrants, such a policy objective runs the risk of failing to address vulnerabilities, exacerbating existing vulnerabilities or even producing new ones. The overall objective of the VULNER project is to produce such scientific knowledge in ways that will assist states in identifying suitable strategies to assess the ‘vulnerabilities’ of migrants, to address their specific needs and to prevent stereotyped understandings of their lived experiences. The VULNER project also seeks to develop a broader, more thorough and more critical reflection on the increasing use of ‘vulnerability’ as a legal and policy standard that guides the development and the implementation of migration policies, including how it relates to border control considerations inherent in such policies. This research report presents some of the intermediate research results of the VULNER project based on the first phase of the project, which consisted of mapping out the vulnerability assessment mechanisms developed by state authorities in Germany, including how they are implemented on the ground through the practices of the public servants in charge. The following research questions are addressed: What do the relevant domestic legislation, case-law, policy documents, and administrative guidelines reveal about how “vulnerabilities” are being assessed and addressed in the countries under study? Do the relevant state and/or aid agencies have a legal duty to assess migrants’ vulnerabilities, and if yes, using which procedures, when and how? Following which legal and bureaucratic criteria? How do decision-makers (street-level bureaucrats) understand and perceive the ‘vulnerabilities’ of the migrants they meet on a daily basis? How do they address these ‘vulnerabilities’ through their everyday practices? What is their stance on existing legal requirements towards ‘vulnerable’ migrants? Which loopholes do they identify? The approach followed for this report was an inductive one, in which we aimed to start by analysing existing state approaches towards ‘vulnerability’ as a legal and policy concept. We complemented our focus on the legal framework with interviews with decision makers. This is just the first phase of the data collection process. We are now conducting ethnographic fieldwork among informal and state-run migrant and refugee settlements, with the view to reach a more profound understanding of migrants’ own experiences of vulnerability. The objective is to document and reflect on how these experiences are shaped, and sometimes even produced, by the legal frameworks and state practices; how refugees and migrants adapt their behaviour to fit within existing vulnerability categories; and what coping and resilience strategies they develop. Our ultimate objective is to reflect upon thoroughly and from a critical perspective on the increasing use of ‘vulnerability’ as a standard that guides the development and implementation of migration policies at EU and global levels. Due to the federalised system in Germany, three different procedures were examined. Firstly, the German asylum procedure, which is uniformly regulated by the federal level (Bund). Secondly, the reception procedures and accommodation systems, which are left to each German state (Länder), so that 16 different reception procedures were examined here. Thirdly, the German procedures for humanitarian admission from abroad including resettlement, which are decided by the Bund and the Länder. Concerning the EU level, we mainly analysed the EU Reception Conditions Directive (RCD) and the Asylum Procedures Directive (APD). Both oblige EU Member States to identify vulnerable individuals during the asylum process and to provide them with specialised assistance. In addition, further European and international regulations were considered, especially those focusing on human trafficking such as the European Directive on Trafficking in Human Beings or the Council of Europe Convention on Action against Trafficking in Human Beings. At the national level, the focus was on the relevant regulations of the German Reception Act (RA) and Asylum Act (AA). The fact that the 16 Länder are responsible for most relevant aspects of the reception procedure and its corresponding legislation was a great challenge for our research. Here, we found a great variety of different approaches, measures and instruments for addressing the vulnerabilities of asylum seekers. All in all, we intensively analysed around 100 (legal) regulations and documents. Our “map” of these regulations concerning the reception procedures and their provisions addressing the special reception needs of vulnerable migrants can be grouped in 5 types of norms: Parliamentarian acts Executive decrees Internal administrative instructions Operator contracts with reception centres Strategic concepts Interviews with key actors and scientific experts made it clear that the reality of the practical procedures is often different from the legal regulations, so that we had to explore and compare both levels. Our interview partners were representatives from BAMF (Federal Office for Migration and Refugees), specialised NGOs (6 interviews), researchers (1 interview), lawyers (1 interview) and court judges (1 interview). In German law and legal research, the term and topic “vulnerability” are mentioned in various research contexts, but they are not given a centralised and unified definition and orientation. Therefore, it is not easy to find thematically relevant studies with corresponding database queries because they may utilise other key terms. The research was focused on four aspects: The interplay of the international, EU and federal levels in a multilevel legal system. A systematic analysis of the existing norms, their implementation and efficacy. The special regulations and procedures relating to victims of human trafficking. The importance of different infrastructural settings (especially regarding the activities and services of specialized NGOs) in the different parts of Germany and their effects on satisfying the special reception and procedural needs (special needs) of vulnerable migrants and protection seekers in general and victims of human trafficking in particular. In German federalism the obligation to identify vulnerable protection seekers concerns on the one hand the Bund and on the other hand the Länder, including municipalities (Kommunen). In this system the Bund carries out the asylum procedure, whereas the Länder and Kommunen are responsible for reception in respective accommodation facilities or apartments. Together they have to guarantee identification of vulnerable individuals and address their special needs. However, Germany has inconsistently applied these EU directives in its own practice. So far, the federal Asylum Act only briefly mentions the obligation to identify vulnerable people, referring broadly to “women” and “persons in need of special protection” (besonders schutzbedürftige Personen). Furthermore, it passes on this responsibility to the Länder, whose regulations and practices for reception procedures vary greatly. The Asylum Act does not contain any legal guidelines regarding the identification procedure for which the BAMF, and thus the federal level, is responsible. Nevertheless, the federal BAMF office has introduced some measures to assess and address special vulnerabilities in the asylum procedure: special representatives, e.g. concerning trafficking in human beings; administrative regulations, e.g. a list of indicators for trafficking; a counselling service by BAMF employees. However, the practical impact of these measures on the identification of vulnerable persons is an open question. Undoubtedly, a legally binding right for vulnerable persons to be heard by a special representative should be included in the Asylum Act. The fact that in most relevant aspects the 16 Länder are responsible for the reception procedure and its corresponding legislation is a great challenge. Here, we found a great variety of different approaches, measures and instruments for addressing the vulnerabilities of asylum seekers. In all the states examined, there are arrangements with NGOs which offer additional support, especially social and legal counselling, social care and other supports. Formal and informal cooperation with NGOs turned out to be very important and is to be examined more deeply. Many regulations were implemented or changed within the last three years and are continuously changing, making them difficult to evaluate. Protection concepts against violence (Gewaltschutzkonzepte), here understood as a formal legal framework for reception centres, serve as the main way to address vulnerability in the Länder. Their implementation differs widely (regulations, administrative regulations, advices, contracts). Conversely, concrete legislative considerations of special needs remain the exception. The executive branch thus becomes a key actor – not only in implementation, but also in normatively addressing the needs of vulnerable protection seekers in general. Regardless of the type of regulation, their references to single vulnerability criteria are as common as substantial considerations of vulnerability in general. In addition to minors, this frequently affects (pregnant) women, single parents and, in some cases, LGBTI+-persons. This gives us an idea of the German understanding of vulnerability. The mention of particular vulnerabilities is probably not least due to the fact that the discourse on legal obligations to certain groups of people has a long tradition and is flanked by other human rights sources. Nevertheless, comprehensive consideration of vulnerability is necessary for implementing the RCD. Differentiation between vulnerable groups can and must be made only in the case of needs-based support and within the framework of protection concepts against violence. Accommodation in collective reception centres applies in principle to vulnerable persons as well as protection seekers in general. The explicit promotion of mass accommodation, as in the states of Bavaria or North Rhine-Westphalia, must be viewed through an especially critical lens with regard to its risks for vulnerable persons. The approach of the city-state Berlin, which considers the accommodation of vulnerable persons in collective reception centres per se as unreasonable, is in contrast noteworthy but needs to be practically realized. In general, there is a difference in supply between city and territorial states, where access is much more difficult due to peripheral accommodation, especially since it is sometimes impossible for counselling centres to provide assistance simply because of the distance. This makes internal relocation within the Länder an essential requirement. In this regard additional legal regulations, such as the right to adequate accommodation in shelters and flats, are necessary and must be included in the Asylum Act. As there are important regional differences in infrastructure for migrants and refugees with special needs, the reception procedure should be reformed, so that the identification and consideration of vulnerable persons is regarded as an integral part in the reception procedure in all parts of Germany. In the reception centres for protection seekers managed the Länder as well as in BAMF offices, increased attention should be paid to the training of employees. This applies also to other public institutions, such as the immigration offices of the Länder. Humanitarian admission and resettlement programs, which provide a legal way to enter the German territory, mostly consider specific vulnerabilities, including minors, pregnant women, single parents, the ill and elderly protection seekers. At the same time, these programs include the “integration capability” (Integrationsfähigkeit) as selection criteria. In German federalism, both, the Bund and the Länder may decide upon the issuance of admission programs. Since 2018 a range of municipalities and Länder demand admission of more forced migrants in their towns. This movement and the legal implications merit further attention. In all, awareness of the special needs of vulnerable migrants in Germany is increasing, but it is not yet sufficiently legally implemented in comparison with the provisions of international and European Law. |
