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.
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