A Further Step to Gender-Sensitive EU Asylum Law: The Case of ‘Westernised Women’

 

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.

 

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.

 

AG de la Tour’s Opinion in C-621/21: A Welcome Clarification on, or an Introduction of Unnecessary Obstacles to, Entitlement to International Protection for Women at Risk of Gender-based Violence?

 

 

Dr Maja Grundler, Lecturer in Law, Department of Law and Criminology, Royal Holloway, University of London

Photo credit: achrafmoroccan, via Wikimedia Commons

 

 

Introduction

On 20 April 2023, Advocate General (AG) de la Tour issued an Opinion in case C-621/21. The case concerns the scope of the refugee definition in Article 2(d) of the Qualification Directive, and of the definition of beneficiary of subsidiary protection in Article 2(g) of the Directive, in relation to women at risk of violence in the family context. The issue raised by case C-621/21 is not a novel one. The question whether, and under what circumstances, women experiencing domestic violence can claim asylum has been debated by academics, national courts and other stakeholders for many years. The United Nations High Commissioner for Refugees (UNHCR) issued guidelines on international protection concerning gender-related persecution (UNHCR Guidelines) as early as 2002, clarifying that ‘family/domestic violence’ is a common reason for gender-related persecution. The Court of Justice of the European Union (CJEU), however, received its first request a preliminary reference on the issue only in 2021, from the Administrative Court of Sofia, Bulgaria.

 

This blog post will argue that while AG de la Tour’s Opinion makes some welcome clarifications with regard to eligibility for international protection of women fearing violence in the family context, the reasoning employed in the Opinion is not in line with the standards contained in the UNHCR Guidelines and, in fact, introduces unnecessary obstacles to claiming international protection.

 

 

Facts of the case and questions referred

The case before the Administrative Court of Sofia concerns a Kurdish woman of Turkish nationality whose application for international protection is based on a fear of violence in the family context, more specifically, an honour crime and forced marriage. The applicant experienced violence and threats at the hands of her ex-husband, her family and the husband’s family. She left and divorced her husband and entered into a religious marriage with another man, with whom she has a child. She fears that she will be the victim of an honour crime and be forced to re-marry if returned to Türkiye.

 

The Bulgarian authorities dismissed the applicant’s initial claim, as well as her appeal, and refused to open a new procedure when she submitted a subsequent application.

 

The case came before the Administrative Court of Sofia, which submitted five questions, seeking clarification on the relationship between the Qualification Directive’s concept of gender-based violence and relevant international law definitions under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention); how to establish membership of a particular social group (PSG) in the context of protection claims based on gender-based violence generally, and domestic violence specifically; how to establish the necessary link between acts of and reasons for persecution in this context, considering the actors of persecution are non-state actors; and whether the harm experienced in this context can be classed as ‘serious’ for the purpose of qualification for subsidiary protection.

 

 

The concept of ‘gender-based violence’ in international and EU law

AG de la Tour’s opinion commences with an examination of the first question referred by the Administrative Court of Sofia, which concerns the concept of ‘gender-based violence’ and how it is defined in international and EU law.

 

Referring to Article 78(1) TFEU and its requirement that EU asylum policy must be in accordance with the 1951 Convention relating to the Status of Refugees (Refugee Convention), its 1967 Protocol and ‘other relevant treaties’, the AG examines which treaties are in fact relevant in the present context.

 

Highlighting the particular importance of the Refugee Convention, the AG draws on the above-mentioned UNHCR Guidelines concerning gender-related persecution (confusingly, at times, UNHCR is referred to as the ‘HRC’ – presumably ‘High Refugee Commissioner’ – an abbreviation commonly used to refer to the Human Rights Committee, i.e. the body tasked with monitoring the implementation of the ICCPR – and, other times, as ‘HCR’). The AG states that the UNHCR Guidelines serve as a relevant point of reference for understanding the meaning of ‘gender’ and its relevance to the refugee status enquiry. He also refers to the EU Victim Protection Directive, which defines gender-based violence in Recital 17.

 

In contrast, he dismisses the relevance of both the CEDAW and the Istanbul Convention for the purpose of implementing the Qualification Directive, since the EU has not ratified and acceded to, the two instruments, respectively. Considering that the UNHCR Guidelines explicitly refer to the CEDAW, among others, as an instrument which has assisted ‘the analysis and understanding of sex and gender in the refugee context’ (para 5, n2), the relevance of the two instruments is, perhaps, too easily discounted (the UNHCR Guidelines do not refer to the Istanbul Convention which only opened for signature in 2011, nine years after the Guidelines were published).

 

As will become apparent from the discussion below, the Opinion also ignores other important aspects of the UNHCR Guidelines.

 

 

Women at risk of violence in the family context and membership of a PSG

AG de la Tour then moves on to examine the next issue raised by the referring court: the question how to establish membership of PSG in the context of protection claims based on gender-based violence generally, and domestic violence, honour crimes and forced marriage, specifically.

 

Setting out the two tests for establishing a PSG – the ‘innate characteristics’ and the ‘social perception’ test – and recalling their cumulative nature under the Qualification Directive, the AG explains how both can be met by women at risk of domestic violence.

 

First, he states that ‘the applicant’s gender may be associated with an innate characteristic – namely her biological sex – “that cannot be changed”’ (para 71), so that the first test can be met with reference to being biologically female. While the UNHCR Guidelines endorse this approach (para 30), they also make it clear that is sufficient to meet one of the two tests to establish membership of a PSG (para 29). In the particular context of EU law, then, which requires that both the ‘innate characteristics’ and the ‘social perception’ test must be met cumulatively, relying on biological sex to meet the former test becomes problematic.

 

Relying on biological sex – a problematic and difficult to define notion in itself – for the purpose of the innate characteristics test creates a risk of excluding trans persons from membership of the relevant group, even though, based on their differential treatment by surrounding society, they may satisfy the social perception test (UNHCR Guidelines, para 30). While the applicant in the case referred by the Administrative Court of Sofia is not a trans person, AGs’ opinions and CJEU judgements have repercussions not just for the applicant in the particular case, but for many others down the line. Thus, when defining particular terms of EU law, AGs and the Court should be mindful of the possible consequences of their statements and seek to avoid restrictive interpretations of EU law which could have negative consequences for other applicants. As Avgeri notes, establishing membership of a PSG on grounds of (trans or non-conforming) gender is extremely complex. Thus, the issues raised by different gender identities should be carefully considered in any discussion on gender-related persecution (more carefully than the scope of this blog post permits). Unfortunately, AG de la Tour has taken a different approach in his Opinion.

 

The Opinion also takes a problematic approach to the social perception test. While it is positive that the AG explains that gender is a social construct which creates inequalities between men and women, and thus states that ‘women, solely on account of their condition as women, are an example of a social group defined by innate and immutable characteristics liable to be perceived differently by society’, the AG then goes on to qualify this by adding that women are perceived as different ‘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).

 

Claiming that the relevant PSG ‘is made up of women in a given society (and not by “women” in general)’ (ibid; emphasis added) leaves room for claiming that, in some societies, women are not perceived as different and this may, in turn, have negative repercussions for women from societies perceived as ‘progressive’. While the UNHCR Guidelines agree that social, legal or religious norms play into the differential treatment of women, they still designate ‘women’ as the relevant PSG (para 31). Seven years after the #MeToo movement began to demonstrate the scale of (sexual) violence against women worldwide, the AG’s approach to the social perception test seems out of touch with the lived experiences of women in all societies.

 

Continuing to focus on the cultural context of the country of origin for the purpose of the social perception test, the Opinion then turns to discussing the relevance of Recital 30 Qualification Directive for establishing membership pf a PSG. The Recital states that

 

For the purposes of defining a particular social group, issues arising from an applicant’s gender, including gender identity and sexual orientation, which may be related to certain legal traditions and customs, resulting in for example genital mutilation, forced sterilisation or forced abortion, should be given due consideration in so far as they are related to the applicant’s well-founded fear of persecution (emphasis added).

 

The AG interprets this to mean that the acts of persecution referred to in the Recital ‘may be applied for the purposes of defining [the relevant PSG]’ and that it is ‘the nature of the acts of persecution, which refer to particular victims, that allows the “distinct identity” of a social group to be characterised’ (para 76).

 

Returning to the facts of the case before the Administrative Court of Sofia, the AG then states that there is ‘nothing to prevent a competent national authority from considering that a female child or adolescent, or even a woman, is a member of a particular social group on the ground that she would be exposed, if she were to return to her country of origin, to a risk of forced marriage’ (para 77) and that national authorities would also be entitled to find that ‘a woman who would be forced to return to her country of origin belongs to a group having its distinct identity in that country on the ground that, by her return, she would be exposed in that country to acts of serious marital violence (beatings, rape and other sexual harm, etc.) that are traditional in certain communities’ (para 78).

 

This approach comes dangerously close to defining the PSG with reference to the persecution feared, while the UNHCR Guidelines remind us that ‘a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society’ (para 29; emphasis added). Although the AG considers that the persecution feared is relevant in the context of the social perception, rather than the innate characteristics test, referring to the precise risk is entirely unnecessary if we can accept that the relevant PSG is ‘women’ and not ‘women in a given society’.

 

 

The link between acts of and reasons for persecution

The next question the Opinion examines concerns the link between the persecution feared and the Convention ground ‘membership of the PSG’, in the present case the PSG ‘women (in a given society)’. When compared with the standards contained in the UNHCR Guidelines, some problematic aspects are immediately apparent in this section of the Opinion.

 

The Opinion delves into a detailed discussion on the state of origin’s inability or unwillingness to protect (since the harm feared emanates from non-state actors). This discussion, however, is not necessary for determining the link between the persecution feared and the Convention ground. As the Qualification Directive states, and the AG reiterates at para 89, such a link can be established by finding a connection either ‘between the reasons [for persecution] and the acts of persecution … or the absence of protection against such acts’ (Article 9(3); emphasis added). Similarly, the UNHCR Guidelines state that

 

In cases where there is a risk of being persecuted at the hands of a non-State actor (e.g. husband, partner or other non-State actor) for reasons which are related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Convention related (para 21).

 

The AG, however, finds that ‘the competent national authority is … required to assess whether a causal link can be established between, on the one hand, the reasons underlying the acts of domestic violence committed within the household or the family circle, namely membership of a particular social group, and, on the other hand, the absence of protection on the part of the authorities of the country of origin … against those acts’ (para 90). Since membership of the PSG ‘women’ explains why women experience domestic violence at the hands of non-state actors, the link should be established without considering the reasons for an absence of state protection. Requiring a link between the reasons for persecution and failure of state protection without explaining that the link can, alternatively, be satisfied by establishing a connection between the reasons for and the acts of persecution introduces an additional hurdle into the refugee claim.

 

 

Eligibility for subsidiary protection

Finally, the AG deals with the question of eligibility for subsidiary protection. This section contains some welcome clarifications. Most importantly, the fact that an honour crime, which ‘consists in putting a person to death’ constitutes an ‘execution’ for the purpose of Article 15(a) Qualification Directive (paras 106-107) and that other acts of domestic violence can amount to ‘serious harm’ for the purpose of Article 15(b) Qualification Directive.

 

 

Conclusion

AG de la Tour’s Opinion in C‑621/21 makes some welcome clarifications, but the devil is in the details. Importantly, the Opinion clarifies that women fearing violence in the family context can be granted refugee status since they can establish membership of a PSG and that those women who cannot claim refugee status are likely to be entitled to subsidiary protection. Yet, the AG’s Opinion is problematic, not because of its overall findings, but because of the reasoning employed in arriving at these findings. Both the proposed way of establishing membership of a PSG and the nexus to Refugee Convention grounds introduce potential difficulties for applicants fearing gender-related persecution.

 

Indeed, the AG’s views on establishing a PSG, and the link to the persecution feared, do not align with the standards contained in the UNHCR Guidelines, despite the AG referring to their importance and relevance earlier in the Opinion. Thus, AG de la Tour’s Opinion seems to seek to maintain the trend of the CJEU selectively engaging with international (soft) law instruments in interpreting the Qualification Directive.

 

In conclusion, while, at first glance, the Opinion seems like a welcome clarification on entitlement to international protection for women at risk of gender-based violence, much of the discussion in fact introduces unnecessary obstacles to claiming such an entitlement.