Tuesday 16 May 2023

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 GrundlerLecturer in Law, Department of Law and Criminology, Royal Holloway, University of London

Photo credit: achrafmoroccan, via Wikimedia Commons




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.




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.



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