Misreading the Temporary Protection Directive? The CJEU sets the record straight on access to subsidiary protection in Framholm (C-195/25)

 

Dr Meltem Ineli Ciger, Associate Professor of International Law, Suleyman Demirel University

 

Photo credit: Dietmar Rabich, Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219, CC BY-SA 4.0

Framholm (C-195/25), delivered on 20 November 2025, is the Court of Justice’s third ruling interpreting the Temporary Protection Directive (Council Directive 2001/55/EC, TPD) following Joined Cases C‑244/24 and C‑290/24 (Kaduna) (cf. analysis here), and Case C‑753/23 (Krasiliva) (cf. analysis here). The ruling provides further clarification of Articles 3, 17 and 19 of the TPD and, crucially, confirms that temporary protection does not exclude access to subsidiary protection, ie the type of international protection available for those who do not qualify for refugee status. It therefore marks an important step in aligning the TPD, an instrument drafted in 2001, with the contemporary Common European Asylum System (CEAS).

The reference for a preliminary ruling to the Court of Justice originated in Sweden, where several third-country nationals displaced from Ukraine were granted temporary protection and subsequently applied for subsidiary protection. For years, the Swedish Migration Agency (Migrationsverket) had maintained a practice of automatically rejecting subsidiary protection applications lodged by temporary protection beneficiaries, without any examination on the merits. It interpreted Swedish law as allowing temporary protection beneficiaries to apply only for refugee status and treated all subsidiary protection applications as per se inadmissible. Faced with this restrictive and legally questionable approach, the Göteborg Administrative Court for Immigration Matters asked the CJEU whether EU law really permits a Member State to deny access to subsidiary protection solely because the applicant already enjoys temporary protection. The Court’s answer is unequivocal: No.

1.    What is the case about?

 On 11 March 2025, the Göteborg Administrative Court for Immigration Matters referred questions to the CJEU concerning whether beneficiaries of temporary protection may apply for subsidiary protection under the Qualification Directive (or QD – which defines refugee and subsidiary protection status in the EU) and have that application examined on the merits. All applicants (a Nigerian national holding a permanent residence permit in Ukraine and his Ukrainian family members) had been displaced from Ukraine following the Russian invasion and were granted temporary protection in Sweden. When they applied for international protection, the Migration Agency rejected their refugee status applications but declared their subsidiary protection claims inadmissible solely because they already held temporary protection. No assessment of eligibility under Article 15 of the QD (ie the definition of subsidiary protection) was undertaken. The referring court rightly doubted whether such a blanket exclusion could be reconciled with the development of EU asylum law since 2001, which clearly conceptualises “international protection” as including both refugee status and subsidiary protection. (cf. The Judgment paras 28-37)

2.     The questions referred to and the Court’s short answers

The Göteborg Court referred four questions to the CJEU (OJ C/2025/2651, 19 May 2025), all centred on how temporary protection interacts with the CEAS:

1.    Do the QD and the Asylum Procedures Directive 2013/32/EU (APD) apply to international protection applications lodged by persons already benefiting from temporary protection under the TPD? Yes.

2.    a) Does the term “application for asylum” in Articles 17(1) and 19(2) of the TPD cover applications for both refugee status and subsidiary protection, and must such applications be examined under the QD and APD? Yes.
b) Does Article 3(1) of the TPD prevent Member States from recognising subsidiary protection for persons who are eligible for, or already enjoying, temporary protection? No.

3.    If Articles 17(1) and 19(2) of the TPD also cover the right to apply for subsidiary protection status under the QD, are those articles, in conjunction with Article 10(2) of APD, sufficiently clear and precise to have direct effect?  Yes, and kind of yes (the Court said the QD and APD provisions have direct effect, but did not say that the TPD provisions alone have direct effect)

4.    Is Swedish law, which allows temporary protection beneficiaries to apply only for refugee status (but not subsidiary protection), compatible with EU law? No.

3.    What are Articles 3, 17 and 19 of the TPD about?

Article 3(1) of the TPD makes clear that temporary protection does not prejudge refugee status under the Refugee Convention. It is not a derogation from the Refugee Convention, nor does the grant or expiry of temporary protection affect the substantive assessment of whether an applicant meets the refugee definition.  

Article 17 of the TPD guarantees that beneficiaries of temporary protection may lodge an asylum application at any time and provides that any applications still pending when temporary protection ends must be assessed and decided hereafter.

Article 19 of the TPD regulates the interaction between temporary protection and the asylum procedure: Article 19(1) allows Member States to decide that a person cannot simultaneously hold the status of “asylum seeker” and benefit from temporary protection while their asylum application is being examined. Whereas Article 19(2) ensures continuity of protection: if, after examining an asylum application, the authorities do not grant refugee status or another form of protection, the person must still be allowed to enjoy temporary protection for the rest of the designated duration. (Cf. for a detailed commentary on these articles Skordas’ chapter; Peers’ post; Ch. 5 of my book)

4.    The AG Opinion (which I fully agree with)

The Advocate General’s analysis is worth examining closely, not least because it is carefully constructed and has clear implications for how the TPD must be read today. His reasoning develops along five points.

First, AG interprets Article 17(1) TPD’s reference to an “application for asylum” as an application for international protection, encompassing both refugee status and subsidiary protection. Although the TPD predates the CEAS, it must now be read in light of Article 78(2) TFEU, which is a Treaty provision on asylum (AG Opinion, paras 49-58). He adds “A restrictive understanding of the term ‘asylum’ in Article 17(1) of Directive 2001/55 would fail to take into account the context in which that directive applies following the entry into force of the FEU Treaty, as well as the objectives and scope of the legislation concerning ‘international protection’ which has been adopted in the intervening period.”  (para 50)  

Secondly, the AG stresses that temporary protection does not suspend or exclude access to subsidiary protection. Beneficiaries of temporary protection may lodge applications for refugee or subsidiary protection “at any time,” and the TPD operates as a complement, not an alternative, to the individual assessment required under the Qualification Directive (AG Opinion, paras 43-45, 51-52, 59-61, 66).

Thirdly, he confirms that being a temporary protection beneficiary is not a lawful ground of inadmissibility or exclusion. The exhaustive lists in Articles 12 and 17 of the QD (on grounds for excluding people from refugee or subsidiary protection status) and Article 33(2) APD (grounds for inadmissibility of asylum applications) do not include temporary protection, and national authorities cannot refuse subsidiary protection applications on that basis (AG Opinion, paras 70-72, 78-81).

Fourthly, he accepts that Member States may postpone examination of international protection applications in mass influx situations but makes clear that this administrative flexibility cannot justify a blanket inadmissibility rule for all subsidiary protection applications lodged by temporary protection beneficiaries (AG Opinion, paras 73-80, especially 7-78, 86).

Finally, he concludes that Article 17(1) TPD (not Article 19), read together with the overall CEAS architecture, confers a sufficiently clear and directly effective right to lodge an application for international protection.  

5.    What did the Court say?

The Court’s reasoning proceeds in three clear steps.

First, the Court explains that nothing in Articles 3, 17 or 19 TPD authorises Member States to refuse to examine a subsidiary protection claim simply because the applicant enjoys temporary protection (paras 45-46). Article 19(2) even anticipates the existence of “other kinds of protection,” which must be read today as encompassing subsidiary protection (para 46). The omission of subsidiary protection in the TPD text reflects only the fact that this status did not yet exist in EU law, a point that AG raised. (paras 46-47).

Secondly, the Court turns to the purpose and logic of the TPD. Temporary protection is designed to ensure immediate, time-limited protection while preserving the “effective possibility” of receiving international protection (paras 47–49). Here the Court explicitly follows its reasoning in Joined Cases C‑244/24 and C‑290/24 (Kaduna), where it held that “the purpose of the temporary protection mechanism is, inter alia, to maintain the efficient operation of the international protection system in the Member States” and that the TPD “safeguards, in particular, the effective possibility for third-country nationals and stateless persons benefiting from temporary protection" of obtaining international protection following an appropriate examination of their individual situation” (Kaduna, paras 125 and 127). A national rule excluding subsidiary protection applications as such would therefore contradict the very objective of the TPD (paras 49–50).

Thirdly, and most decisively, the Court relies on the architecture of the CEAS. It emphasises that the QD establishes two forms of international protection – namely, refugee status and subsidiary protection – and that Member States must grant whichever status an applicant qualifies for (paras 51–54). Member States have no discretion to refuse subsidiary protection except on the exclusion grounds exhaustively listed in the Qualification Directive (para 54). The Asylum Procedures Directive reinforces this: an application may be declared inadmissible only on the five grounds set out in Article 33(2) APD, which must be interpreted strictly (paras 58–60). Temporary protection is not among these grounds; national authorities, therefore, cannot reject a subsidiary protection application solely because the applicant enjoys temporary protection (para 61).

Finally, the Court addresses the direct-effect question. The Swedish court had essentially asked whether Articles 17(1) and 19(2) of the TPD, if interpreted as including the right to apply for subsidiary protection, are sufficiently clear and precise, read together with Article 10(2) of the APD, to have direct effect. The CJEU reformulates the issue. Rather than grounding the direct effect in the TPD itself, the Court bases it on two CEAS provisions: Article 18 of the QD, which imposes an unconditional duty to grant subsidiary protection when criteria are met, and Article 33 of the APD, which exhaustively lists the admissibility grounds (paras 71-72). These provisions are both unconditional and sufficiently precise, and thus confer directly effective rights. The consequence is clear: if a national rule conflicts with these obligations and cannot be interpreted in conformity with EU law, domestic courts must disapply the national provision (para 73).

That said, the Court’s approach leaves an important ambiguity unresolved. The referring court had explicitly asked whether Articles 17(1) and 19(2) of the TPD, read together with Article 10(2) APD (which governs the relationship between refugee and subsidiary protection status applications), were sufficiently clear and precise to have direct effect. Instead of answering that question squarely, the Court effectively sidesteps it by grounding direct effect not in the TPD at all, but in Article 18 QD and Article 33 APD. Put simply, the judgment does not tell us whether Articles 17(1) and 19(2) of the TPD are capable of producing direct effect. 

6.    My analysis

The AG’s Opinion and the Court’s judgment reach the same legal outcome, but they do so through markedly different interpretative routes. The Advocate General adopts a more TPD-centred approach, grounding his analysis in Articles 3, 17 and 19 of the TPD and then interpreting these provisions in light of later CEAS instruments. He reads “asylum application” in Article 17 as an application for international protection covering both refugee status and subsidiary protection, emphasises that temporary protection cannot suspend or exclude access to subsidiary protection, and rejects temporary protection as a lawful ground of inadmissibility because it does not appear in the exhaustive list in Article 33(2) of the APD. Although he accepts that Member States may postpone international protection application examinations in mass influx situations, he stresses that a blanket ban on subsidiary protection applications is incompatible with the TPD and the CEAS.

By contrast, the Court relies primarily on the Qualification Directive and the Asylum Procedures Directive, using the CEAS instruments themselves as the main foundation for each key step. It interprets “asylum application” in light of the QD and APD definitions of international protection, derives the duty to grant protection from Article 18 of the QD and the obligation to examine claims (and the limits on inadmissibility) from Articles 10(2) and 33 APD, and treats Article 33(2) of the APD as an exhaustive rule that excludes any TP-based inadmissibility ground (paras 58-60). On the direct effect, the Court bases its analysis on Article 18 of the QD and Article 33 of the APD (paras 70-73), whereas the AG reaches the same conclusion via a combined reading of Article 17 of the TPD with the CEAS provisions.

Compared to the AG’s Opinion, which engages more directly with the wording, structure and logic of the TPD, the Court reaches essentially the same conclusions but grounds its reasoning far more firmly in the QD and APD. Put differently, while the AG reads the TPD through the lens of the CEAS, the Court treats the CEAS instruments themselves as the primary legal basis for explaining why Member States cannot refuse to examine (and, where appropriate, must grant) subsidiary protection to temporary protection beneficiaries.

I must admit that I prefer the AG’s TPD-centred approach: it is more faithful to the architecture of the TPD, and does not treat the TPD as a second-rate asylum instrument because it has never been updated to reflect two decades of CEAS development.

The outcome of the judgment is fully in line with what many of us working on the TPD have long expected. The TPD was never intended to operate as an obstacle to accessing international protection, whether refugee status or subsidiary protection. For over a decade, “international protection” in EU law has included both statuses, and nothing in the Directive suggested a closed or self-standing regime intended to override the CEAS.

The central logic of the TPD has always been pragmatic: to give Member States facing a mass influx breathing space by allowing them to suspend the processing (not lodging) of asylum claims where their systems would otherwise be overwhelmed. It was and never has been designed to bar access to subsidiary protection altogether. Member States with fewer temporary protection beneficiaries, or with sufficiently strong asylum systems, remain entirely free to process claims during temporary protection and examine the merits of their international protection applications.

Interpreting the TPD in the restrictive and literal manner adopted by the Swedish administration, treating “asylum” in the TPD as excluding subsidiary protection and ignoring the subsequent development of EU asylum law, was therefore misguided. It runs counter to the TPD’s objectives, its underlying logic, and the entire evolution of the CEAS. Most importantly, it results in a clear violation of the rights of temporary protection beneficiaries to access international protection.

This judgment matters well beyond Sweden. Even if Sweden appears to be the only Member State to have openly applied such a blanket rule, Framholm makes clear that no Member State may treat temporary protection alone as a ground for declaring subsidiary protection applications inadmissible. Across the EU, temporary protection can never justify a blanket refusal to examine the merits of a subsidiary protection claim.

7.    Conclusion

Framholm matters because it definitively closes the door on any national attempt to use temporary protection as a barrier to subsidiary protection. The judgment also exposes a broader structural problem: the Temporary Protection Directive, drafted in 2001, simply do not reflect the legal architecture of the CEAS in 2025. This is visible not only in Sweden’s misinterpretation but also in the Court’s need to rely so heavily on the QD and APD to reach a decision rather than the TPD’s own articles.

This brings me to a point that, as far as I am aware, no one else has explicitly raised: we know that the TPD remains useful and conceptually sound as a framework for managing mass influx situations, contrary to the Commission’s initial 2020 proposal to repeal it. Temporary protection works. It has proven its value during the Ukrainian displacement and remains a necessary instrument in the EU’s protection toolbox. Even today, 4.3 million non-EU citizens who fled Ukraine have temporary protection status in the EU. Moreover, the adoption of the Crisis and Force Majeure Regulation does not render the TPD unnecessary or obsolete: the two instruments, although they can be invoked in exceptional mass influx situations, operate on different logics. In my opinion, the Crisis and Force Majeure Regulation, which is based on derogations more than anything, cannot fully substitute for the protection mechanism established by the TPD.

Despite the usefulness of the ongoing relevance of the TPD, the judgment also implicitly makes clear that the TPD urgently requires updating. Many of the problematic national practices stem precisely from the fact, highlighted by the AG, that the TPD is an old instrument, never recast and never aligned with two decades of CEAS development. The result is predictable: legal ambiguities that should no longer exist, and litigation over issues that should be obvious.

I wish to conclude with a call to the EU institutions, above all, to the Commission. Once the current temporary protection regime for Ukrainians comes to an end, the Commission should initiate a targeted revision of the TPD, drawing directly on the lessons of its implementation during the mass displacement from Ukraine and the emerging body of CJEU case law, including Kaduna, Krasiliva and Framholm. An updated TPD can significantly narrow the scope for misinterpretation, perhaps introduce a new and clear time limit, align the instrument with the contemporary CEAS architecture, and prevent further unnecessary litigation on matters that ought already to be legally settled.

Integration as Exclusion: The Keren Case Revisited

 

Dr Sarah Ganty, LL.M. (Yale), Ph.D. (ULB); J.S.D. candidate, Yale Law School; F.N.R.S. Postdoctoral Fellow, UCLouvain; Research Visitor, Bonavero Institute of Human Rights (Oxford); Research Fellow, CEU Democracy Institute (Budapest); President of the YLS European Law Association

Photo: Raad van State (the referring court), via Wikimedia Commons

 

Last February, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its ruling in the Keren case. The Court upheld the possibility for Member States (MSs) to impose civic integration examinations on the beneficiaries of international protection but introduced important limitations regarding the modalities, costs and sanctions attached to such requirements. Many EU migration lawyers and scholars on social media welcomed the judgment. By placing some constraints on the design and implementation of integration tests, the Court curbed what had become genuinely abusive and exclusionary practices towards the beneficiaries of international protection.

 

Yet the broad endorsement of the Keren ruling among legal practitioners and scholars reflects a deeper and more troubling trend: the growing normalisation and depoliticisation of integration requirements imposed on third-country nationals. In Keren the Court effectively reconciled what appeared irreconcilable – construing the right to access of integration programmes under Article 34 of the Qualification Directive as potentially entailing integration obligations. Such a reading would likely have provoked significant concern thirty years ago, when civic integration tests were still regarded as peripheral or ideologically motivated proposals originating from the political fringes. Today, however, these measures have become entrenched and largely uncontroversial features of EU migration governance. Their underlying normative, legal, human and social implications are rarely scrutinised. Only their modalities are. Crucially, this shift has occurred in the absence of compelling evidence to support the efficacy or necessity of such obligations. On the contrary, research increasingly indicates that integration requirements – regardless their modalities – besides being ineffective, tend to discriminate and exclude, rather than include or empower, those subject to them.

 

Following a brief contextual overview of the evolution of integration requirements within the EU (Section 1), this commentary sets out the factual and legal background of the case, summarising the Opinion of Advocate General (AG) Medina and the reasoning of the Grand Chamber (Section 2). It then argues that the Court largely reiterates the principles previously articulated in its case law on civic integration duties, including under the framework of EU migration law and the EU–Turkey Association Agreement (Section 3). While this continuity may appear doctrinally consistent, I contend that Keren merited a different outcome irrespective of the newly adopted 2024 Qualification Regulation, which was not applicable to the case (Section 4). In particular, Article 34 of the Qualification Directive should have been interpreted more protectively to reject the imposition of integration obligations and examinations altogether. This is particularly significant in light of the increasing instrumentalisation of integration requirements as mechanisms of exclusion – tools deployed to target those who, in Bauman’s terms, are rendered ‘strangers’ by a legal and political order that marks them as insufficiently aligned with the dominant cultural and social norms (Section 5).

 

1.      The Civic Turn: Context

 

Over the past twenty years, integration obligations have become increasingly prevalent across EU Member States (see here and here), frequently functioning as preconditions for access to legal status and social rights. Their proliferation is commonly framed in the literature as indicative of a broader civic – or even ideological – turn in European migration governance.

 

Although integration has long been addressed at the European level through soft law instruments, the EU’s competence in migrant’s integration remains limited by the Treaty on the Functioning of the EU (TFEU) (Article 79(4)). Nevertheless, the concept has found its way into EU secondary legislation through the EU’s immigration policies. Since the early 2000s, integration has featured in instruments, such as the Family Reunification Directive and the Long-Term Residence Directive. These instruments reflect an ongoing tension between two competing models: integration through rights versus integration through duties.

 

While the original proposals for both directives reflected a rights-based logic – conceiving secure residence as a means to facilitate integration – this approach was increasingly contested by certain MSs, notably Austria, Germany and the Netherlands (see e.g., here). These states had already implemented integration tests at various stages of the migration legal journey and actively advocated for their incorporation into the EU legal framework. Consequently, the final versions of the directives permit MSs to condition access to family reunification and long-term resident status on compliance with integration requirements.

 

Simultaneously, national integration requirements began to multiply and extend beyond the scope of these directives. For instance, in countries such as Germany, the Netherlands and Denmark, such obligations were applied in the context of the EU–Turkey Association Agreement (and the additional Protocol and decision of the Association Council) despite this regime traditionally falling outside the scope of EU immigration law.

 

With regard to the integration of the beneficiaries of international protection, the EU possesses broader legislative competence under Article 78 TFEU. Nonetheless, legislative activity in this area has remained relatively limited, with integration matters primarily addressed in Article 34 of the Qualification Directive, which affirms a right to access integration programmes. Until recently, EU law did not explicitly authorise MSs to impose integration obligations on the beneficiaries of international protection – unlike in the field of general migration directives. Despite this, several MSs, including the Netherlands, have introduced such requirements, notably through examinations, following the granting of protection status. It was in this context that a preliminary reference was submitted to the Court in Keren, essentially asking whether such integration requirements are compatible with Article 34 of the Qualification Directive and if so, under what conditions.

 

2.      The Keren case

 

Keren arose from the previous version of the Dutch Wet Inburgering, which mandates civic integration for non-temporary residents, including the beneficiaries of international protection. This requirement includes passing exams in language and societal knowledge within three years, subject to a limited extension. Failure results in financial penalties and a repayment obligation for state loans provided to support compliance. In casu T.G., an Eritrean national granted asylum in the Netherlands, failed to pass the relevant exams within the allotted timeframe and was fined EUR 500 and ordered to repay a EUR 10,000 loan. Even after being granted an exemption based on demonstrated effort, these penalties remained. The Dutch Council of State referred preliminary questions to the CJEU, asking whether such measures align with Article 34 of Directive 2011/95/EU (the Qualification Directive), which guarantees access to integration programmes for the beneficiaries of international protection.

 

AG Medina found that Article 34 of the Qualification Directive only grants a right of access to integration programmes – implying ‘positive measures enabling refugees to integrate’ (§47). For the AG, this provision did not impose a corresponding obligation on the beneficiaries of international protection to participate in integration measures. Drawing on the principle of shared competence in EU law, he found that MSs retain discretion to determine whether participation in such programmes should be compulsory (§42). The Directive likewise does not preclude national legislation requiring the beneficiaries of international protection to undergo a civic integration examination. Nevertheless, MSs may not require refugees to attain a specific pass mark in such examinations as a condition or proof of integration. Moreover, Article 34 of the Qualification Directive precludes national legislation that imposes on refugees the obligation to bear excessive costs for participation in integration programmes, or conditions participation on passing an integration examination under the threat of financial sanctions, such as the obligation to repay a loan or pay a fine.

 

The CJEU largely accepted the AG’s approach, albeit following a different train of thought. Relying on a contextual and teleological interpretation of Article 34 – which concerns access to rights, the importance of integration measures, the expectation of long-term residence and the potential pathway to naturalisation – the Court found that ‘MSs enjoy a margin of discretion in deciding on the content of the integration programmes referred to in that article, as well as on the practical arrangements for the organisation of those programmes and the obligations that may be imposed on participants in that context’ (§ 62, emphasis added). In this way the Court effectively conflates the irreconcilable: the right to integration and the obligation to integrate.

 

On this basis, and in line with the AG, the Court held that national legislation requiring participation in integration programmes and successful completion of related examinations is compatible with Article 34, provided it is proportionate (§66) and takes into account the individual circumstances of each person through an individualised assessment (§§67–68). Differing from the AG on several points, the Court found that MSs may require refugees to achieve a pass mark in integration examinations, but the required level must remain elementary and proportionate to the goal of promoting integration (§73). Moreover, while the imposition of a fine for failure to pass the exam is not precluded, such penalties must not be automatic or systematic. They must be exceptional and based on objective evidence of a persistent and demonstrated lack of willingness to integrate (§74). Crucially, the Court held that Article 34 prohibits requiring the beneficiaries of international protection to bear the full cost of compulsory integration measures. Such measures should in principle be free of charge. Only beneficiaries with sufficient financial means may be required to contribute, and any such contribution must be reasonable (§§82–83).

 

3.      Limits of the limits set by the Court

 

The CJEU has long grappled with the legality of integration conditions. In European Parliament v. Council, the Court cautiously upheld the permissibility of such measures under the Family Reunification Directive, while emphasising compliance with fundamental rights.

 

Later, integration obligations featured prominently in the case law related to the EU–Turkey Association Agreement. Without rejecting the principle of integration requirements or examinations, the Court has consistently struck down national measures imposing such conditions on Turkish workers and their family members. These measures were found to breach the respective standstill clauses, as they introduced new, disproportionate restrictions. For instance, the Court struck down Danish rules requiring minors to demonstrate ‘sufficient ties’ to Denmark in Caner Genc, or spouses to prove stronger attachment to Denmark than to their country of origin in A. The imposition of language tests on Turkish workers sponsoring spouses in X or on the spouses themselves in Dogan was also deemed unlawful. A key concern in most of these cases has been the absence of individualised assessments.

 

This proportionality logic also informs the Court’s interpretation of EU secondary legislation – most notably the Family Reunification Directive and the Long-Term Residence Directive – both of which expressly allow MSs to impose integration ‘conditions’  or ‘measures’  as prerequisites for residence permits or visas. In rulings like K and A, C and A and P and S, the Court recalled the principle that integration conditions must serve the objectives of the directives – facilitating family life and supporting long-term integration. Civic knowledge and language acquisition, the Court argued, promote communication, social cohesion and access to employment and education. Hence, the Court concluded in the three cases – without offering further reasoning – that the requirement to pass an examination constitutes an appropriate means of achieving these objectives. However, the Court has consistently attached important caveats. It held that authorities must consider the efforts made by applicants, even if they ultimately fail the exam. Likewise, the implementation of integration measures must remain proportionate, including the scrutiny of the level of knowledge required, the accessibility of preparatory materials, the cost of registration and the imposition of fines. The Court has also highlighted the need to consider individual circumstances, such as age, illiteracy or educational background.

 

The Keren ruling builds on this existing case law, applying these principles mutatis mutandis to the beneficiaries of international protection. On its face, Keren aligns with the Court’s established approach: it limits disproportionate administrative sanctions while upholding the legitimacy of the integration obligations and examinations within the framework of the Qualification Directive. The judgment might even appear commendable for pushing back against the more punitive dimensions of national integration regimes.

 

But two critical concerns remain.

 

4.      Transforming a Right into Obligations

 

The Keren judgment raises a fundamental concern absent from other integration-related cases: the Court’s interpretation of Article 34 of the Qualification Directive, which stands out for its unique legal and normative framing. This provision, entitled ‘Access to integration facilities’, requires MSs to ensure access to integration programmes for the beneficiaries of international protection, with due regard to their specific needs.

 

Both the AG and the Court acknowledged that Article 34 establishes a right to access integration facilities. Logically, this should preclude the imposition of integration obligations, as rights by definition imply personal autonomy ‘as (part) authorship of one's life’. However, both concluded through distinct routes that the provision does not prevent such obligations.

 

The AG’s justification – that shared competence allows MSs to legislate in the absence of EU action – fails to account for the fact that Article 34 already expresses an exercised competence. Once the EU legislates a right, MSs should in principle not dilute it by imposing additional burdens. According to the AG’s logic, any right in a shared competence field could be mirrored by a corresponding obligation at national level, inverting the purpose of rights and leading to absurd, even unjust outcomes which are only partially contained by the proportionality principle.

 

The Court’s reasoning, to the extent that it is discernible, also fails to persuade. While it invokes the margin of discretion afforded to MSs, it remains entirely silent on how the imposition of mandatory integration exams can be reconciled with a provision that enshrines a right to access integration programmes. The normative shift is further compounded by the Court’s unacknowledged alignment (almost point-by-point) with Article 35 of the new Qualification Regulation, which explicitly allows integration obligations under certain conditions and will apply from July 2026. From a Rule of Law perspective, this implicit application of the new Article 35, which was not applicable to the case (and would not before 2026) is deeply problematic. The new Article 35 was not meant to clarify the current Article 34, but to replace and restrict it. Treating them as interchangeable – and in a non-explicit way – disregards both their legal and normative distinction and their temporal application.

 

Even accepting the legitimacy of integration obligations, it is striking that the Court never addresses the central question: whether integration can be more effectively achieved through voluntary participation – a consideration that any genuine proportionality test should require, especially if the Directive does not provide for compulsory integration. Nor does it examine whether such obligations, particularly exams, actually contribute to integration. As a matter of fact, the clues in evidence rather argue against integration requirements. Studies have shown that integration tests are often ineffective, legally misconstrued, misapplied and counterproductive. They dilute the protection that non-citizens enjoy under human rights law. Yet the Court continues to treat integration obligations, especially examinations, as self-evidently valid. It endorses the rationale as inherently positive, depoliticising and naturalising deeply normative questions about belonging, equality, hierarchy and oppression. The Court simply draws on axiomatic assumptions.

 

5.      Racialised and Colonial Logics of (Civic) Integration

 

Integration policies – and civic integration in particular – have long been subject to critique extending well beyond the legal domain, for being rooted in a colonial, oppressive and stigmatising rationale. Willem Schinkel highlights how it is never applied to white citizens, revealing its racialised function. Saskia Bonjour points to the paradox of civic integration policies that demand assimilation while reinforcing exclusion, echoing colonial ‘civilizing missions’. Tamar de Waal has described integration tests as symbolic hierarchies that reinforce precarious belonging. Adrian Favell observes that post-imperial states have used integration as a way to reframe their civilisational missions in a world marked by diversity. Dora Kostakopoulou has also criticised such policies as mechanisms of discipline and control – promoting a narrow, idealised national identity to which migrants must conform. These duties often construct belonging as conditional on civic and moral ‘worthiness’, marginalising those who do not fit the model. This trend is deeply concerning, not only normatively but also empirically, given the lack of any empirical evidence –so dear to the EU Commission in integration matters – demonstrating  that mandatory integration measures are effective in any way.

 

The content of integration tests further compounds these concerns. While the Court typically limits its scrutiny to language requirements, it has so far avoided addressing the societal knowledge components of civic integration exams, which constitute an important part of these requirements. Yet research has consistently shown that, beyond language testing, these tests are often filled with absurd, stigmatising or culturally loaded questions. Far from being neutral assessments, they are frequently imbued with racialised and colonial assumptions, functioning as instruments of symbolic exclusion and mechanisms of ‘othering’.

 

Moreover, the targets of these policies are not random. Integration obligations disproportionately affect migrants who are portrayed as ‘problematic’ – those regarded as non-Western, Muslim, socioeconomically disadvantaged, or with limited educational background, i.e. the so-called ‘Migrants with Poor Prospects’. Integration thus becomes a tool to discipline and stigmatise, rather than to support and empower.

 

In fact, rather than addressing structural inequalities through positive measures, many MSs have adopted punitive or conditional approaches through these civic integration programmes. This reflects a broader trend in which the rhetoric of integration has often served to legitimise an expanding array of exclusionary practices, including restrictions to fundamental rights. For instance, in the so-called Danish Ghetto case pending before the Court, urban gentrification of racialised neighbourhoods is presented as an integration strategy, generalising characteristics perceived as negative and unacceptable in Denmark and attributing them to all immigrants and their descendants from non-Western countries. Such highly questionable policies contribute therefore ‘to the perpetuation of that stereotyping and stigmatisation’ in the words of AG Ćapeta (§152).

 

Conclusion

 

While Keren curtails certain abusive practices, it simultaneously endorses the conditional logic of integration requirements for the beneficiaries of international protection, contributing to the broader normalisation of exclusionary and stigmatising measures. Civic integration requirements do not foster inclusion but rather reinforce hierarchies of belonging through symbolic and material harm. It is therefore imperative critically to examine the normative foundations of integration duties, particularly within legal reasoning, to prevent the entrenchment of exclusion under the rhetoric integration.

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.