Rethinking Gender-Based Asylum: A Look at the Advocate General’s Opinion on Women Fleeing the Taliban

 

Türkan Ertuna Lagrand (Assistant Professor, Utrecht University School of Law) and Salvo Nicolosi (Senior Assistant Professor, Utrecht University School of Law)

Photo credit: USAIDAfghanistan, via Wikimedia Commons

Can a woman be recognized as a refugee, merely because of her gender? This has been one of the most debated questions in international refugee law, which has recently reached the Court of Justice with two joined cases in AH and FN on which last 9 November 2023, Advocate General Richard de la Tour delivered his Opinion. These joined cases relate to a request for a preliminary ruling from the Austrian High Administrative Court. The referring judge was in doubt whether, in light of Article 9 (1) (a) and (b) of the Qualification Directive, it is sufficient that a woman who is affected, merely on the basis of her gender, by the accumulation of government-imposed or supported restrictive measures can be recognised as a refugee without the need to assess the woman’s individual situation.

While awaiting the ruling from the Court of Justice, it is worth underscoring the significance of the Advocate General’s Opinion in light of three complementary dimensions, each representing crucial elements within the Advocate General’s assessment. These dimensions refer to the nature of persecution arising from discriminatory measures; the issue of whether women can be recognized as constituting a distinct social group; the need to conduct an individual assessment as the foundational basis for granting refugee status.

By addressing these three dimensions, this short post aims to flag the potential for the Court of Justice to expand the scope of protection in Europe and contribute to the progressive development of international refugee law.

Systematic discrimination against women

The reference from the Austrian Court is rooted in the rise of the Taliban regime in Afghanistan in 2021, marked by the implementation of a set of discriminatory measures specifically aimed at women in the country. As the Austrian High Administrative Court as well as experts of the United Nations have underscored, the Taliban has put in place measures severely restricting civil and political rights. Such measures consist of preventing women from travelling without a male companion, obligating them to cover their bodies; denying participation in political office and political decision-making processes; denying women access to legal means to obtain protection from gender-based and domestic violence; and lack of protection against forced marriages. Additionally, these measures have significantly curtailed social, economic and cultural rights, such as women’s right to engage in gainful employment, and women’s access to health care, education and sports. In this regard, it is worth stressing that Afghanistan is the only country in the world where girls and young women are forbidden from attending secondary school and higher education institutions.

Admittedly, the accumulation of these measures has led to a situation that the Advocate General considered of 'severe, systematic and institutionalised discrimination' against women.

The concept of ‘discrimination’ is  of paramount importance to determine the existence of persecution for the purposes of seeking recognition as a refugee. However, not all discrimination amounts to persecution. On this point,  Advocate General’s Opinion is especially illustrative as it, in light of the UNHCR Handbook, clarifies that ‘a measure of discrimination will only amount to persecution if it leads to consequences of a substantially prejudicial nature for the person concerned, such as… access to available educational facilities’.

The Advocate General concluded that while some measures individually amount to persecution under Article 9 (1) (a) of the Qualifications Directive (which states that to be considered ‘persecution’, an act must be ‘be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights’ which States cannot derogate from under Article 15(2) ECHR), others cumulatively meet the threshold under Article 9 (1) (b), due to systematic violations of human rights which are ‘sufficiently severe as to affect an individual' in a similar manner as mentioned in Article 9 (1) (a).

 

Women as a particular social group

Interestingly, these joined cases gave the Advocate General de la Tour an opportunity to reiterate and finetune a line of argumentation that he followed earlier this year in the case of WS. On that occasion, the Advocate General argued that women can constitute a particular social group ‘solely on account of their condition as women.’ They in fact share an innate and immutable characteristic, because of which they are seen differently by society, according to their country of origin, by reason of the social, legal or religious norms of that country or the customs of the community to which they belong (para 72). In the same opinion, Advocate General de la Tour convincingly rejected the tendency,  often followed by senior courts, according to which to use women qua women cannot constitute a relevant social group owing to the size of the group. On the contrary, de la Tour concluded that ‘the concept of “distinct identity” of a group, in that it is perceived differently by the surrounding society, cannot be interpreted as entailing a quantitative assessment.’ From this perspective, the Advocate General echoed the position of the UNHCR  reminding that other grounds are not bound by the question of size and upheld the scholarly view that have unearthed the fallacy of such an approach.

Challenging the individual assessment as the foundational basis for refugee status

Borrowing Hathaway and Foster’s words ‘it is now widely understood that where a woman has a well-founded fear of being persecuted for reasons of her gender,… refugee status ought to be recognized.’ Despite the equivocal terms of the Qualification Directive (Article 10), recognizing only that ‘[g]ender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group,’ there is nonetheless widespread recognition in Europe that women constitute a social group for Convention purposes. As the situation of women and girls in Afghanistan has deteriorated rapidly, Member State authorities went even further to recognize women as refugees solely on the basis of their gender without assessing on a case-by-case basis whether there is an individual a risk of persecution.

While Austria was the first Member State to officially explore the possibility of accepting Afghan women as refugees without an individual assessment, a number of other States have recognized women from Afghanistan as refugees without further examination as to the individual situation. Sweden announced in December 2022 that any Afghan woman asking for refugee status will be granted this status. After firstly declaring to  continue with an individual examination of female asylum seekers from Afghanistan, Denmark later decided to hold a ‘relaxed assessment of evidence’ and as of 30 January 2023 all women and girls from Afghanistan have been granted asylum solely because of their gender. Similarly, the Finnish Immigration Service has announced in early 2023 that ‘all Afghan women and girls are granted refugee status.’

Such a domestic practice offered the Advocate General the opportunity to explain that this practice falls within the margin of appreciation that is left to the Member States by Article 3 of the Qualification Directive to introduce or retain more favourable standards for determining who qualifies as a refugee, in so far as those standards are compatible with the Directive. In this regard, the Advocate General also referred to the ruling in LW e, in relation to which the Court- decided that such standards may consist, inter alia, in relaxing the conditions for granting refugee status and should not prejudice to the general scheme and objectives of that Directive (paras 39-40). Indeed, concurring with the Advocate General, asylum applications submitted by women and girls from Afghanistan have specific characteristics that would allow the competent authorities to deviate from the individual assessment method, in principle required by Article 4 (3) of the Qualification Directive. The discriminatory measures to which Afghan women and girls are exposed are part of a regime of segregation and oppression imposed solely on account of the women’s presence on the territory, regardless of their identity or personal circumstances. Such a circumstance makes unnecessary to establish that the applicant is targeted because of distinctive characteristics other than her gender.

Interestingly, despite these readily apparent, objective circumstances in the country of origin, the Advocate General did not approach the cases on the basis of prima facie recognition of refugee status, which as confirmed by the UNCHR, constitutes an exception to the principle of individual assessment. As argued by Zieck, prima facie recognition is in essence ‘a collective form of status determination that presumes that each individual member of a particular group qualifies for refugee status based on objective information on the circumstances causing flight.’ While particularly suited to situation of large scale arrivals of refugees, prima facie recognition may also be appropriate in relation to groups of similarly situated individuals whose arrival is not on a large scale. However, as the legal foundations and contours of this practice remains still opaque, the Advocate General might have chosen to confine his argumentation within the specific features of EU asylum law, notably Article 4 of the Qualification Directive. This was a reasonable but also particularly relevant choice as it clarifies to what extent EU asylum law allows a departure from an individual assessment, thereby offering a valuable standpoint to the Court to proceed in the same direction.

Concluding remarks

To conclude, the Joined Cases in AH and FN bear significant relevance, particularly in the near term for Member States that have already adjusted their asylum policies concerning Afghan women, and, prospectively, for those Member States poised to emulate such modifications, following an expected favourable ruling by the Court. If the Court were to adopt the analytical framework proposed by Advocate General de la Tour, this would, therefore, contribute to aligning the EU's stance with that of the UNHCR, the Human Rights Council, thereby substantially contributing to the advancement of international refugee law.