Setting Gender-Based Asylum Straight: The Court of Justice’s Landing Point

 

 

Salvo Nicolosi and Türkan Ertuna Lagrand, University of Utrecht

Photo credit: USAID, via Wikimedia Commons

 

Just a couple of weeks after the Taliban regime in Afghanistan announced a new decree prohibiting women from being heard when speaking outside their homes, on 4 October, the Court of Justice of the European Union (CJEU) delivered its judgment in the joined cases of AH and FN (C‑608/22 and C‑609/22). The ruling constitutes the landing point of a recent stream of case law through which the Court has developed a gender-sensitive approach to refugee protection. In this regard, it is worth recalling that in WS (C-621/21), the Court recognised that women in a country can be considered ‘a particular social group’, while in K, L (C-646/21), it emphasised the importance of gender equality in defining such group. In AH and FN, instead, the Court addressed the issue of whether women subjected to a series of restrictive, state-imposed or state-supported measures, solely based on their gender, could be granted refugee status without the need for an individual assessment of their personal circumstances.

This case law is of particular importance not only because, as recently highlighted by scholars, judgments of the Court of Justice addressing gender-related elements of asylum cases are scarce, but also for the impact that the progressive stance of the Court could have on national authorities and more broadly the development of international refugee law with reference to gender-based asylum claims. After a brief account of the facts of the case, this short blog post reviews the Court’s reasoning in an attempt to explain to what extent the Court has expanded substantially and procedurally the scope of international protection for women who are victims of systematic discrimination in their country of origin. 

The Factual and Procedural Background

AH and FN are two Afghan nationals who have applied for international protection in Austria. The Federal Office for Immigration and Asylum refused to recognise their refugee status, but granted the applicants subsidiary protection on the ground that they would face economic and social difficulties if they returned to Afghanistan. The applicants unsuccessfully appealed to the Federal Administrative Court of Austria, claiming first that they had adopted Western values and a Western-inspired lifestyle, and second, that after the Taliban regime came to power in 2021, women in Afghanistan have faced widespread persecution. Accordingly, the applicants appealed before the High Administrative Court arguing once more that the situation of women under the Taliban regime alone justified the recognition of refugee status. The High Administrative Court thus decided to refer two questions to the CJEU. The first question concerned the substantial aspect of whether the accumulation of the measures taken by the Taliban regime in respect of women is sufficiently serious to be classified as an ‘act of persecution’ within the meaning of Article 9(1)(b) of the Qualification Directive 2011/95. The second question, more procedurally, concerned whether an Afghan woman may be granted refugee status without an individual assessment of her situation being carried out, despite the fact that Article 4(3) of the Qualification Directive underlines that ‘the assessment of an application for international protection is to be carried out on an individual basis.’   

The Added Value of the Court’s Reasoning

The Court’s judgment in AH and FN followed the insightful Opinion of Advocate General Richard de la Tour, which we discussed in a previous post, as well as the previous rulings, which we also discussed here and here. Based on these judicial precedents, the Court’s reasoning provides an important interpretation of EU asylum law, particularly regarding the concept of systematic discrimination, as well as the procedural requirement of individual assessment.

Systematic Discrimination

As is known, the concept of ‘discrimination’ is of paramount importance to determine the existence of persecution to seek recognition as a refugee. However, not all discrimination amounts to persecution. In this regard, the Court follows a helpful explicative approach that will offer clear guidance to national authorities while implementing the relevant EU asylum rules. In its reasoning, the Court offers a nuanced interpretation of Article 9(1) of the Qualification Directive, distinguishing between discriminatory acts that, on their own, qualify as ‘acts of persecution’ under Article 9(1)(a), and those which, when considered cumulatively, meet the threshold of ‘acts of persecution’ under Article 9(1)(b).

To this aim, the Court indicates as examples of the first category of discriminatory acts measures such as forced marriages - which the Court compares to a form of slavery prohibited under Article 4 of the ECHR - or the lack of protection against gender-based violence and domestic violence - which the Court defines as a form of inhuman and degrading treatment prohibited by Article 3 of the ECHR (paragraph 43). In the second category of discriminatory acts the Court includes measures against women that restrict access to healthcare, political life and education and the exercise of professional or sporting activity, restrict freedom of movement or infringe the freedom to choose one’s clothing (paragraph 44).

In line with the Advocate General’s Opinion, the Court affirmed that while discriminatory measures against women in this second category may not individually qualify as persecution, their combined and systematic application does. Thus, when considered collectively, these measures reach the severity necessary to be classified as acts of persecution under Article 9(1)(b). From this perspective, the Court promotes the integration into EU asylum law of the notion of systematic discrimination. This notion is particularly supported by the Court’s view that those measures, as also stressed by the Advocate General, reflect the establishment of a social structure based on a regime of segregation and oppression in which women are excluded from civil society and deprived of the right to lead a dignified daily life as guaranteed by Article 1 of the Charter of Fundamental Rights of the EU (paragraph 46).

Individual Assessment 

Regarding the individual assessment, the Court’s reasoning is especially progressive because, following the suggestion of the Advocate General, it allows a gender-sensitive interpretation of Article 3 of the Qualification Directive, according to which Member States may adopt more favourable standards, including by easing the conditions for granting refugee status (paragraph 55). From this perspective, the Court essentially showed sensitiveness about an emerging national practice resulting in the recognition of women from Afghanistan as refugees without further examination of the individual situation.

As we previously noted,  Sweden announced in December 2022 that any asylum-seeking woman or girl from Afghanistan should be recognised as a refugee. Similarly, in Denmark, as of 30 January 2023 all women and girls from Afghanistan have been granted asylum solely because of their gender, while the Finnish Immigration Service announced in early 2023 that ‘all Afghan women and girls are granted refugee status.’ Domestic practices across Europe remain, however, inconsistent. For instance, the Federal Administrative Tribunal of Switzerland recently ruled that the collective persecution of women and girls cannot be presumed solely based on gender and that Afghan women do not face collective persecution giving rise to automatic recognition of refugee status. In this context, the Court’s judgment in AH and FN plays a crucial role in harmonising domestic practices within the EU, particularly regarding the recognition of refugee status for women who are victims of systematic persecution in their country of origin.

The novelty of the Court’s ruling thus lies in the departure from a settled case law establishing, based on Article 4 of the Qualification Directive, that ‘every decision on whether to grant refugee status or subsidiary protection status must be based on an individual assessment.’ Such a departure is, nonetheless, operated by the Court through an appropriate systemic interpretation of EU asylum rules in light of international human rights law. This is confirmed by the Court’s strong reliance on the UNHCR Statement issued on 25 May 2023 in the context of these preliminary ruling proceedings, which emphasised the need for protection due to the persecutory measures imposed by the de facto authorities in Afghanistan, specifically targeting women and girls based on their gender. Additionally, the Court’s references to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further underscore the importance of these international treaties, which the Court recognises as ‘relevant treaties’ within the framework of Article 78(1) TFEU.

Concluding remarks

In this last episode of a series of developments towards a more gender-sensitive EU asylum law, the Court’s reasoning is particularly noteworthy for its significant broadening of protection standards under EU law. Notably, the Court emphasised that country of origin information may suffice as a basis for asylum determinations when discriminatory practices against women reach a point where they are effectively excluded from society and deprived of their right to a dignified life. In such cases, the Court considered it unnecessary to establish a specific and immediate risk of persecution for individual applicants (paragraph 57), underscoring a shift towards a more flexible and context-sensitive approach. This approach promises further progress in a wider spectrum of asylum claims where the applicant’s statements are not supported by evidence about their personal situation, which is often observed in applications based on sexual orientation and gender identity.

In sum, the Court’s case law has confirmed that women in a country can constitute a ‘particular social group’ that systematic persecution can arise from the cumulative impact of state-imposed measures infringing upon women’s fundamental rights and that, in such cases, no individual assessment of the applicant’s circumstances is required. By expanding refugee protection for women facing gender-based persecution, the Court not only offers significant guidance to national authorities but also contributes to the progressive evolution of international refugee law. Its approach underscores the need to integrate fundamental human rights principles, such as equality between women and men, as already emphasised in K, L (C-646/21), to ensure that women subjected to systematic oppression receive the protection they need.

It now remains for national authorities to apply the Court’s approach and ensure consistent protection across the EU for women fleeing the Taliban regime.