Türkan Ertuna Lagrand, Assistant Professor, and Salvo Nicolosi, Senior Assistant
Professor, University of Utrecht
Photo credit: Mystslav Chernov, via Wikimedia
Commons
Gender-based asylum
claims have been gaining momentum in EU law. On 11 June 2024, the Court of
Justice of the European Union (CJEU) published its most recent judgment in the
case of K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) concerning the
interpretation of ‘membership of a particular social group’ under Article 10 (1)
(d) of the Qualification
Directive with reference to ‘westernised women’ who, because of the
identity and lifestyle they have acquired in the host country, namely the
Netherlands, fear persecution if they were returned to the home country, namely
Iraq. The judgment follows the ruling in WS (C‑621/21)
in which the Court last 16 January 2024 recognised that women in a country as a
whole may be regarded as belonging to ‘a particular social group’, leading, as
analysed here,
to the recognition of refugee status.
Following this
thread, this post aims to shed some more light on the Court of Justice’s
contribution to a more gender-sensitive reading of international refugee law.
To this aim, drawing from the judgment in K, L, attention will be paid to
the axiological dimension of the concept of ‘equality between women and men’
and its use by the Court for the purposes of constructing the ‘particular
social group’ under EU asylum law. A short synopsis of the case will be first
provided.
The Factual
Background
The judgment is the
landing point of a case originating from a reference
made on 25 October 2021 by the Tribunal of the Hague. The main proceedings
concerned two minor sisters (10 and 12 years old) who left Iraq in 2015
together with their parents who unsuccessfully applied for international
protection in the Netherlands. In 2019, the applicants lodged subsequent claims
for international protection, which were rejected as manifestly unfounded. On
28 December 2020, they appealed to the referring court in The Hague. At the
time of the hearing before the referring court, the applicants had been
continuously resident in the Netherlands for over five years and were both
still minors. They argued that, due to their long stay in the Netherlands, they
have adopted Western norms, values and actual conduct and, because of this,
they fear persecution if they were returned to Iraq.
The referring court,
therefore, asked the CJEU whether third country nationals who have lived in a
Member State for a significant part of their life during which they developed
their identity by adopting Western norms, values and actual conduct, may be
considered members of a ‘particular social group’ within the meaning of Article
10 (1) (d) of the Qualification Directive, because (applying the definition of ‘particular
social group’ in the Directive) they have ‘a common background that cannot be
changed’ or characteristics that are ‘so fundamental to identity that a person
should not be forced to renounce’ them. (The UN
Refugee Convention, as applied in EU law by the EU Directive, defines a ‘refugee’
as someone outside their country of nationality or (if stateless) habitual
residence, who is unable or unwilling to avail themself of the protection of
that country owing to a well-founded fear of persecution on various grounds,
including ‘particular social group’; but unlike the EU Directive, the
Convention does not elaborate further on the meaning of the term).
In his Opinion,
Advocate General Collins, first of all, rejected the application of the terms “Eastern”
and “Western” in the context of moral codes and values as projecting a false
dichotomy that constitutes part of a divisive dialogue. He underlined that ‘“the
East” and “the West” are vast regions with a multitude of religious traditions,
moral codes and values’ making terms such as “a Western lifestyle” or “Westernised
women” ‘largely meaningless’. More importantly, by setting the centrality of
‘gender equality’ within EU law, the Advocate General provided a valuable
background against which the Court could frame its ratio decidendi.
The axiological
dimension of gender equality in the Court’s Judgment
In its reasoning, the
CJEU reiterates the approach followed in the previous case of WS in which the
Court declared the Istanbul
Convention and the UN Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW)
as being relevant treaties under Article 78 (1) TFEU according to which EU Asylum
law, including the Qualification Directive, is to be interpreted. In pursuing
such an approach, the Court provides a broad and rights-based interpretation of
gender equality, explaining that, in light of Articles 1, 3 and 4 (2) of the
Istanbul Convention as well as Articles 3, 5, 7, 10 and 16 of CEDAW, equality
between women and men includes the right of every woman to be protected from
all forms of gender-based violence, the right not to be forced to marry, to
choose whether to adhere to a religion, to hold one’s own political views and
to make one’s own life choices, especially in terms of education, career or
activities in the public sphere.
While relying on
these international law sources, the Court contributes to upholding the
axiological dimension of gender equality, as ensuing from Articles 2 and 3 (3)
TEU enshrining gender equality as one of the EU’s core values and fundamental
objectives. In this connection, concurring with Advocate General Collins, it is
worth mentioning that EU primary law contains a number of provisions that establish
an obligation to mainstream equality and non-discrimination. This is the case
of Article 8 or Article 10 TFEU, which, as clarified by the Court itself in VT
(C-304/21,
para. 34) set out obligations on the Union, not on the Member States. It is equally
noteworthy that the Court clarified that the provisions of the Qualification
Directive must be interpreted in a manner that is consistent with the EU
Charter’s rights, including Article 21 (1) of the Charter, which prohibits
any discrimination based on, inter alia, sex.
This axiological
dimension of gender equality is especially significant because it constitutes
an attempt to frame equality as a ‘central
concern.’ In other words, by insisting on the value of gender equality, the
Court was not only able to expand the interpretation of refugee law concepts,
as will be explained below, but sent a clear message about gender
mainstreaming, which has been very challenging to implement, as noted by Timmer.
Equality and the
construction of the ‘particular social group’
Even if partly
calibrating the emphasis permeating the Advocate General’s Opinion, the Court used
this axiological framework to acknowledge that women, who have spent most of
their lives in the Netherlands, will have been influenced by the value of
gender equality. This value constitutes an indelible part of their identity and
reflects core values, principles, and fundamental rights deeply rooted in the
EU legal tradition.
Accordingly, the
Court finds that the fact that a female third country national identifies herself
with the fundamental value of equality between women and men can be regarded as
‘a characteristic or belief which is so fundamental to the identity or moral integrity
of the concerned person that she should not be asked to renounce it’. According
to the Court, the crystallisation of such a fundamental characteristic stems
from the exposure to the fundamental value of equality between women and men during
a phase of life in which a young woman forms her identity. What is striking is
that such a fundamental characteristic is established, as in casu, outside of
the country of origin and whilst the applicant was living in the host State,
waiting for the asylum application to be processed. Essentially, the Court
decides that the applicants are to be seen de facto as sur place refugees,
because of their actions outside the country of origin, as clarified by the
United Nations High Commissioner on Refugees (UNHCR).
The Court also takes
a chance to clarify the relationship with other possible grounds for
persecution, such as religion or political opinion. The fact these grounds
could also connect with the personal affinity with the value of equality
between women and men did not prevent the Court from affirming that these women
could be regarded as belonging to a particular social group. As is known, this
ground requires two cumulative conditions, namely the identification of a
common essential characteristic and that those sharing such a characteristic
are seen as “different” from the surrounding society (or part of it). According
to the Court, the latter condition is satisfied by the specific circumstances
in the country of origin. In this regard, by echoing the argument made in WS,
the Court reiterates that ‘it is for the Member State concerned to determine
which surrounding society is relevant when assessing whether such a social
group exists.’ Nonetheless, even if much more engagement by the Court with issues
related to cultural differences could be necessary, the Court seems to indicate
that the value of equality between women and men constitutes the element
through which the Member States have to assess the perception of the group in
the surrounding society.
Waiting for the
next episode…
This judgment
represents another episode of a series of developments towards a more
gender-sensitive EU asylum law. In WS the Court has already established
that women in a country as a whole may be regarded as belonging to ‘a
particular social group’, thereby ending
once and for all the discussion whether the size of the group may prevent such
qualification.
In K, L, by
recognising that refugee status may be granted to women who identify themselves
in the value of equality between women and men, the Court makes a twofold
contribution. First, the Court indirectly contributes to gender mainstreaming
in EU law by upholding gender equality as a core value of the EU. Following up
on the previous ruling in WS, the CJEU uses the Istanbul Convention and
CEDAW as ‘relevant treaties’ in the meaning of Article 78 (1) TFEU, to
interpret EU Asylum Law. This is an important step in preventing legal
fragmentation in the protection of women against discrimination and violence
and in creating a coherent framework across legal fields at the international
and European levels.
Second, the Court’s
ruling in K, L opens the way to the next episode in promoting a more
gender-sensitive EU asylum law. A case in point concerns the pending joined cases
in AH (C‑608/22) and FN
(C‑609/22). The Court will decide whether
the requirement for individual assessment may be relinquished for women fleeing
the Taliban regime in Afghanistan, as proposed by Advocate General de la Tour
in his Opinion, analysed here.
Such a case is directly related to gender equality and the systematic discrimination
against women. Therefore, the centrality and axiological dimension given to
gender equality by the Court in K, L
will play a crucial role in future decisions. It is legitimate to expect that when
the circumstances in the country of origin reach a point where gender equality
is utterly demolished, as in the case of Afghanistan under Taliban rule, even
the need for an individual assessment for the recognition of refugee status
could be put aside.
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