Although the concept of vulnerability has become increasingly prevalent in both domestic and international migration policy in recent years, its precise meaning and implications remain ambiguous and under-examined. Without a coherent understanding of what makes individuals vulnerable, the concept can either act as a justification for additional consideration or reinforce stereotypes of disempowerment. To address this lack of clarity, this article presents the results of an extensive review of Canadian case law. Drawing on data from over 750 cases primarily from the Immigration and Refugee Board and the Federal Court of Canada, this study sought to examine how the concept of vulnerability is used by both decision-makers and parties to cases involving migrants seeking legal status and various forms of protection (including, but not limited to, asylum) under national or international law in Canada. Although an analysis of case law necessarily produces only a partial image of the landscape, this review identified two understandings of vulnerability at play: a procedural one associated with the need to ensure access to justice and a fair hearing, and a substantive one where vulnerability is linked to the categorization of particular groups. In both instances, the recognized importance of the concept is offset by its narrow and inconsistent application and a failure to acknowledge the role that the institutions and mechanisms of “protection” play in creating and perpetuating vulnerability.

Thanks to a convergence of circumstances, including the astuteness of UN Secretary General Kofi Anan and the 2015 European ‘migration crisis,’ migration - as opposed to refugees - has finally become a ‘UN topic,’ after decades of being excluded by Member States from any type of normative cooperation framework. From the creation of the Global Forum on Migration and Development (GFMD) in 2007 to the adoption of the Global Compact for Migration (GCM) in 2018, states have learned to overcome their reluctance to discuss migration policies on the international stage and to start planning for better global migration governance. During that decade, the mandate of the UN Special Rapporteur on the Human Rights of Migrants was able to contribute to better framing the legal, political, and social conversations on migration policies and to promoting a deeper engagement of all stakeholders, including migrants themselves.

The Canadian protection regime has made many positive steps towards the recognition of migrant vulnerability. For example, Chairperson’s Guideline 8 from the Immigration and Refugee Board (IRB) was developed in 2006 (and subsequently revised over the years) to assist Canadian decision-makers to provide procedural accommodation(s) (e.g., priority processing of application, allowing a support person, or varying the order of questioning—accommodations that impact the process of the hearing, not the substantive outcome) for vulnerable individuals who are going through Canada’s inland refugee determination process. However, as is discussed in this chapter, our research found that practitioners, and even civil servants, have mixed perspectives on the success of translating this awareness into effective action. Despite these developments, refugee claimants are facing several challenges in asserting or ‘proving’ vulnerability and thus eligibility for procedural accommodation. Of particular concern is the difficulty with accessing psychological assessments for psychologically vulnerable asylum seekers and their inconsistent consideration by decision makers. Another key concern is the discretion exercised by decision-makers, both in terms of acknowledging vulnerability and in terms of determining what, if any, procedural accommodations are appropriate. While recent changes to Guideline 8 suggest a desire to address some of the challenges presented here, it remains to be seen whether this effort will be successful.

The conclusion revisits the three central claims of this manuscript, highlighting some of the lessons for policy and practice that can be drawn from this analysis. The first claim is that any meaningful progress in addressing protracted refugee situations will come only from adopting a more refugee- and dignity-centered approach. The second claim is that a human rights-based capabilities approach and the fiduciary theory of state legal authority have great potential as an alternative and progressive framework through which the roles and correlative rights and duties of different actors can be understood. The final claim is that the legal empowerment of refugees is necessary in order to meet the normative requirements of the human rights-based capabilities approach and to ensure conditions of exile that are consistent with the inherent dignity of refugees.