A Better Group Protection for Refugee Women
By Jean-Yves Carlier and Eleonora Frasca,
Université catholique de Louvain (UCLouvain), members of the Equipe droits et migrations (EDEM)
This is a revised version of the commentary in “Droit européen des migrations”, the yearly case law column published in French in the Journal de droit européen, no. 3, March 2025.
In 2024, the Court of Justice of the European Union (CJEU) ruled on various issues relating to the protection of women as refugees in three decisions, including two Grand Chamber judgments: the fear of persecution resulting from domestic violence (W.S., C-621/21), the identification with the values of gender equality in the host country (K.L., C-646/21), as well as the finding that all women in Afghanistan belong to a social group with a well-founded fear of persecution (joined cases AH C-608/22 and FN C-609/22). By confirming and extending the protection of refugee women at risk of persecution solely because they belong to the social group of women, the CJEU is taking into account women’s realities while consolidating the importance of references to fundamental rights and international law in the interpretation of EU asylum law.
1.Risk of Persecution Linked to Membership of a Particular Social Group
Not delivered by the CJEU’s Grand Chamber, the AH and FN judgment, also known as Bundesamt für Fremdenwesen und Asyl and Others (Afghan Women) is the last in chronological order. Nevertheless, it deserves to be taken as the starting point for the overall presentation of these cases, not only in light of current events in Afghanistan but also for the interpretation of the very concept of refugee, especially because of the risk of persecution linked to membership of a particular social group. The high number of case notes testify to its importance (see, ex multis, Nicolosi and Ertuna Lagrand; Gupta; Esmailian; Golesorkhi; Maheshe Musole; Acierno).
The questions referred for a preliminary ruling in this case concerned two Afghan women who had been living in Austria for more than five years. They had been granted subsidiary protection because “they would face economic and social difficulties” if returned to Afghanistan (para 21), but had been refused refugee status on the grounds that “they had not adopted a ‘Western’ lifestyle that had become such an essential part of their identity that it was impossible for them to renounce it in order to escape the threat of persecution in their country of origin” (para 23). The Austrian decision was a distorted echo of the CJEU’s earlier Grand Chamber decision in K.L., Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality). This judgment too has been widely commented (see Nicolosi and Ertuna Lagrand; Raimondo and De Coninck; Terlouw). The case concerned Iraqi women who – according to the Dutch Council of State’s case law – could not be recognised as “refugees” simply because “Westernised women constitute too diverse a group to be regarded as members of a particular social group” within the meaning of the Geneva Refugee Convention or the Qualification Directive (para 27).
Dismissing this restrictive interpretation, the Court ruled that “depending on the circumstances in the country of origin, women, including minors, who share as a common characteristic the fact that they genuinely come to identify with the fundamental value of equality between women and men during their stay in a Member State may be regarded as belonging to a particular social group, constituting a reason for persecution capable of leading to the recognition of refugee status” (operative part). In its reasoning, reiterating the definition of a social group given in case law since Ward by the Supreme Court of Canada in 1993 and in the Qualification Directive, the Court stated that “the fact that a woman genuinely comes to identify with the fundamental value of equality between women and men may be considered a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it” (para 44, emphasis added).
By making it a condition, certain States, including Austria, subsequently refused the recognition of refugee status to women who did not establish that they had “adopted a Western lifestyle that had become such an essential part of their identity that it was impossible for them to renounce it in order to escape the threat of persecution in their country of origin” (para 23 of the Afghan Women judgment). Consequently, two questions arose in the Afghan Women case. Advocate General Richard de la Tour summed up very well the stakes of this case in the introduction to his Opinion which was followed by the Court: “faced with this situation, Member State authorities are uncertain whether to grant refugee status to those women and girls solely on account of their gender, or to identify whether an individual risk of persecution exists” (para 1 of his Opinion).
2. What is Persecution based on Gender Discrimination?
Article 9 of the Qualification Directive gives an alternative definition of persecution based on either qualitative or quantitative criteria. The qualitative criterion refers to serious acts that constitute a severe violation of basic human rights, in particular non-derogable fundamental rights. The quantitative criterion refers to an accumulation of various measures that are less severe, but sufficiently severe by reason of that accumulation to affect an individual in a comparable manner. The Court finds that, although they are alternative, these two criteria are met in relation to the discrimination suffered by women in Afghanistan. Thus, with regard to the qualitative criterion, the Court notes that “forced marriage […] is comparable to a form of slavery prohibited under Article 4 ECHR, and the lack of protection against gender-based violence and domestic violence […] constitute forms of inhuman and degrading treatment prohibited by Article 3 ECHR” (para 43). In so doing, it reinforced the “condemnation” of private persecution that it had already affirmed in the Grand Chamber judgment in Intervyuirasht organ na DAB pri MS (Women victims of domestic violence) (see Flamand; Fleury Graff; De Vido and Möschel; Loxa; Kübek and Bornemann; Ertuna Lagrand; Kompatscher et al.; Steininger; Minardi; Stamme; Di Pascale).
The case Women victims of domestic violence concerned Kurdish women from Turkey who were victims of domestic violence. The Court also emphasised the alternative nature of the link that must exist between a well-founded fear of persecution and one of the grounds in the Geneva Convention (race, religion, nationality, membership of a particular social group or political opinion). This link may sometimes be the direct reason for the persecution and sometimes the indirect reason for the lack of protection against “private” persecution (this alternative approach to the link with one of the reasons for persecution has become classic also since Ward).
Furthermore, in the Afghan Women judgment, with regard to the qualitative criterion resulting from the infringement of a non-derogable fundamental right, the Court did not hesitate to equate forced marriage with slavery. This should be emphasised. It reminds the Greek tragedy The Suppliants in which Aeschylus, in the fifth century BC, portrays the Danaids, women who seek and obtain asylum because they are fleeing a forced marriage to the sons of Aegyptus. This is also in line with the case law of the International Criminal Court which has raised forced marriage to the level of a crime against humanity (ICC, Dominique Ongwen; ICC, Al Hassan case, even though Al Hassan was acquitted of this charge, see point 40 of the summary of the hearing).
Also with regard to the quantitative criterion of the concept of persecution resulting from the cumulative infringement of fundamental rights, the Court noted in the Afghan Women judgment that “even if, taken separately, the discriminatory measures against women that restrict access to healthcare, political life and education and the exercise of a professional or sporting activity, restrict freedom of movement or infringe the freedom to choose one’s clothing do not constitute a sufficiently serious breach of a fundamental right […], those measures, taken as a whole, affect women to an extent that they attain the level of severity required to constitute acts of persecution […]. […] [G]iven that those measures have a cumulative effect and are applied deliberately and systematically, they blatantly and relentlessly deny Afghan women fundamental rights related to human dignity on account of their gender. Those measures 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 in their country of origin” (para 44).
3. Is a Collective Rather than Individual Approach Possible?
The answer to the second question can be deduced from this: from a procedural point of view, “regarding applications for international protection lodged by women who are Afghan nationals, the competent national authorities are entitled to consider that it is currently unnecessary to establish, in the individual assessment of the situation of an application for international protection, that there is a risk that she will actually and specifically be subject to acts of persecution if she returns to her country of origin, where the factors relating to her individual status, such as her nationality or gender, are established” (para 57 and operative part). In other words, the individual examination may be limited to identity (in this case gender and nationality), while the risk of persecution may be the subject of “a presumption of recognition of refugee status for Afghan women and girls, given the acts of persecution carried out against them by the Taliban solely on account of their gender” (para 56). This has led some scholars to focus their analysis on a gender approach (see Esmailian and especially for her detailed analysis of the links with international criminal law, Golesorkhi). They see in this decision the recognition of a “gender apartheid”, confirmed by the expression “regime of segregation” used by the Court (para 44).
From a broader perspective, it is also possible to extend this to other social groups, noting that “this reasoning can lead to a group protection that is very present in the inter-African refugee system”, as Maheshe Musole rightly points out in his commentary (translation is our own). To justify this move towards a collective approach to the protection of refugees who are victims of persecution because they belong to a social group, the Court states that “the requirement to carry out an individual assessment of the application for international protection presupposes that the competent national authorities adapt the methods of assessing the facts and evidence according to the specific circumstances and characteristics of each application” (para 54). It adds that Article 3 of the Qualification Directive allows Member States to introduce more favourable standards. We endorse this realistic and progressive interpretation of protection against persecution on the grounds of membership of a particular social group.
One question remains for the future. In the new Pact, the Qualification Directive is replaced by a regulation. While this regulation does not change the definition of acts of persecution, it no longer includes the opening clause in Article 3, allowing Member States to increase the level of protection. Consequently, in order to withstand legislative change, the Court’s case law will necessarily have to be based on a realistic adaptation of the individual examination to the situation of massive violation of fundamental rights in the country of origin, and not on a possible increase in the protection offered by a Member State. On this point, Advocate General Richard de la Tour’s Opinion was perhaps stronger. He noted that “the discriminatory measures […] are part of a regime of segregation and oppression conducted solely on account of their presence on the territory, regardless of their identity or personal circumstances” (para 73, Opinion of Advocate General)
This interpretation remains an individual approach, modulated by the level of infringement of the fundamental right. Moreover, this is what the Court did in its Elgafaji case (C-465/07). Of course it is another text and context about the subsidiary protection resulting from “serious and individual threats to the life or person of a civilian by reason of indiscriminate violence in the event of internal or international armed conflict” within the meaning of Article 15(c) of the Qualification Directive. The Court clarified this approach in 2023 in relation to the situation in Libya in Staatssecretaris van Justitie en Veiligheid (Notion of serious harm) (C-125/22). But, according to this reasoning, there is a kind of internal proportionality to the seriousness of the infringement of fundamental rights that could be applied to persecution in the sense of the Geneva Convention: the more serious and widespread the infringement, the less it is necessary to establish that it is aimed individually at the person seeking protection.
It should also be noted that the Court makes in these three judgments numerous references to international law on the elimination of all forms of discrimination against women to support its broad interpretation of the persecution of women. In addition to the standard references to the Geneva Convention as the “cornerstone” of international refugee protection and the Guidelines on International Protection of the United Nations High Commissioner for Refugees (UNHCR), the Court also cited the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), emphasising that all EU Member States are party to it, and the Istanbul Convention of the Council of Europe on the Elimination of All Forms of Discrimination against Women, pointing out that the Union is itself a party to it and that it came into force in the EU on 1 October 2023 (see Porcheron, 2024, p. 49).
Conclusion
It is beyond any doubt that, with these three judgments, the Court is strengthening the protection of women as refugees. Furthermore, the Court is paving the way for a more collective approach to certain beneficiaries of international protection, given the scale of the discrimination or massive violations of fundamental rights that reach the level of persecution suffered by this social group. To date, such a collective approach, introducing a presumption juris tantum of the need for protection, has only been applied to categories of people who have benefited from special provisions, such as Palestinians forced to flee the UNRWA protection zone or Ukrainians benefiting from temporary protection. The Court has now added Afghan women to these categories.