Türkan Ertuna Lagrand, Assistant Professor, and Salvo Nicolosi, Senior Assistant Professor, University of Utrecht

Photo credit: Mystslav Chernov, via Wikimedia Commons

Recent developments in EU law show a growing recognition of gender-based asylum claims. A notable example is the June 11, 2024, judgment by the Court of Justice of the European Union (CJEU) in the case of K, L v Staatssecretaris van Justitie en Veiligheid. This case, concerning two Iraqi sisters seeking asylum in the Netherlands, centers around interpreting “membership of a particular social group” within the EU’s Qualification Directive, specifically regarding “westernized women” who fear persecution upon returning to their home countries. This judgment builds upon the precedent set in the WS ruling, which recognized women within a specific country as a potential “particular social group,” potentially leading to refugee status.

This post examines how the CJEU is integrating a more gender-sensitive approach into international refugee law, as demonstrated in the K, L judgment. We’ll focus on the Court’s interpretation of “equality between women and men” and its application in defining “particular social groups” under EU asylum law. Let’s start with a brief overview of the case.

The Case at Hand

This judgment stems from a case referred to the CJEU by the Hague Tribunal on October 25, 2021. The case involved two young sisters, aged 10 and 12, who arrived in the Netherlands from Iraq with their parents in 2015. Their parents’ application for international protection was denied, and subsequent applications by the sisters in 2019 were also rejected. Having resided in the Netherlands for over five years, the sisters argued that their adoption of Western norms and values during this time would make them targets for persecution if they were forced to return to Iraq.

The referring court asked the CJEU to clarify whether individuals who have lived in an EU Member State for a significant period, adopting the host country’s norms and values, could be classified as a “particular social group” under Article 10(1)(d) of the Qualification Directive. This question hinges on the Directive’s definition of a “particular social group” as having an “unchangeable common background” or characteristics so essential to one’s identity that they shouldn’t be forced to abandon them. Notably, while the UN Refugee Convention, as implemented in EU law, uses the term “particular social group” as grounds for persecution, it doesn’t explicitly define it, unlike the EU Directive.

Advocate General Collins, in his opinion, cautioned against using terms like “Eastern” and “Western” when discussing morals and values, highlighting the vast diversity within these regions. He emphasized that “Western lifestyle” or “Westernized women” are essentially meaningless generalizations. Importantly, he positioned “gender equality” as a central principle in EU law, providing the framework for the Court’s decision.

The Core Value of Gender Equality in the CJEU’s Judgment

The CJEU judgment reaffirms its stance in the WS case, emphasizing the relevance of the Istanbul Convention and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in interpreting EU asylum law, including the Qualification Directive, as per Article 78(1) TFEU. The Court broadened the concept of gender equality, drawing from these international agreements, stating that it includes a woman’s right to protection from gender-based violence, freedom from forced marriage, the right to religious choice, independent political views, and control over life decisions, including education, career, and public life participation.

The Court, aligning with Advocate General Collins, underscores the principle of gender equality enshrined in Articles 2 and 3(3) TEU as a fundamental value and objective of the EU. EU law, through provisions like Articles 8 and 10 TFEU, mandates the promotion of equality and non-discrimination, obligations that rest with the Union itself, not just individual Member States, as clarified by the Court in VT. The Court also affirmed that the Qualification Directive’s interpretation must align with the EU Charter’s fundamental rights, such as Article 21(1), which forbids discrimination based on sex.

Highlighting the importance of gender equality as a “central concern” is crucial. By doing so, the Court not only expands the understanding of refugee law concepts but also sends a clear message about the importance of integrating gender considerations – an undertaking that has proven challenging, as noted by legal scholar Timmer.

Equality’s Role in Defining “Particular Social Group”

The Court acknowledged that women residing in the Netherlands for a significant portion of their lives would have been influenced by the principle of gender equality. This value, an integral part of their identity, reflects core values, principles, and fundamental rights deeply ingrained in the EU legal framework.

Therefore, the Court determined that identifying with the fundamental value of equality between women and men can be considered a “characteristic or belief… so fundamental to the identity or moral integrity… that she should not be asked to renounce it.” The Court argues that this characteristic develops due to exposure to the principle of gender equality during formative years. Notably, the Court establishes that this fundamental characteristic can be formed outside the country of origin, during the asylum application process in the host state. Essentially, the Court classifies the applicants as de facto “sur place” refugees due to their experiences outside their home country, as defined by the United Nations High Commissioner on Refugees (UNHCR).

The Court further clarified the interplay between gender equality and other potential grounds for persecution, like religion or political opinion. It asserted that even if these grounds intersect with a personal belief in gender equality, it doesn’t preclude those individuals from being considered a “particular social group.” This designation requires two conditions: a shared essential characteristic and the perception of this group as “different” by the surrounding society. The Court stated that the situation in the country of origin satisfies the second condition. Echoing the WS case, the Court reaffirms that determining the “relevant surrounding society” when assessing the existence of such a group is the responsibility of the Member State. However, while more engagement with cultural differences by the Court may be necessary, the judgment suggests that Member States should consider the value of gender equality when evaluating how a group is perceived by the surrounding society.

Looking Ahead

This judgment represents another step toward incorporating gender sensitivity into EU asylum law. The WS ruling already set a precedent by recognizing that women within a country could constitute a “particular social group,” dismissing any argument about group size as a disqualifying factor.

The K, L judgment, by acknowledging that women who identify with the value of gender equality might be eligible for refugee status, makes two significant contributions. First, it indirectly promotes gender mainstreaming within EU law by upholding gender equality as a core EU value. By leveraging the Istanbul Convention and CEDAW as “relevant treaties” under Article 78 (1) TFEU for interpreting EU Asylum Law, the CJEU promotes a more unified approach to protecting women from discrimination and violence at both international and European levels.

Second, it paves the way for further advancements in gender-sensitive EU asylum law. For instance, the pending cases of AH (C‑608/22) and FN (C‑609/22), which concern women fleeing the Taliban regime in Afghanistan, will require the Court to decide if the individual assessment requirement can be waived, as proposed by Advocate General de la Tour. Considering the systematic discrimination women face in Afghanistan, the importance of gender equality established in the K, L judgment will likely play a significant role in this decision. If the situation in the country of origin demonstrably disregards gender equality, as in Afghanistan under Taliban rule, the Court might forgo the need for individual assessments when granting refugee status.