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.