Dr. Maja Grundler, a Lecturer in Law at the Department of Law and Criminology, Royal Holloway, University of London, examines a recent legal opinion concerning refugee and subsidiary protection eligibility for women at risk of violence within their families.

Advocate General (AG) de la Tour’s Opinion in case C-621/21 tackles the scope of the refugee definition within Article 2(d) of the Qualification Directive and the definition of subsidiary protection beneficiaries in Article 2(g) concerning women facing potential violence within a family setting. While not a new issue, the question of whether and how women experiencing domestic violence can seek asylum has been a subject of debate for many years. Although the UN High Commissioner for Refugees (UNHCR) published guidelines back in 2002 stating that family/domestic violence is a frequent basis for gender-related persecution, this case marks the first preliminary reference on this matter received by the Court of Justice of the European Union (CJEU) in 2021.

This post will demonstrate that although AG de la Tour’s Opinion clarifies aspects of international protection eligibility for women fearing family violence, its reasoning contradicts the UNHCR Guidelines and presents unnecessary barriers to seeking international protection.

The case brought before the Administrative Court of Sofia involves a Kurdish-Turkish woman seeking international protection due to fear of violence stemming from potential honor crimes and forced marriage. Subject to violence and threats from her ex-husband, her family, and her ex-husband’s family, she ultimately left her husband, pursued divorce, and entered a religious marriage with another man, with whom she now has a child. She fears a potential honor crime and forced remarriage if she returns to Türkiye. The Bulgarian authorities denied her initial claim and appeal and refused to reopen the procedure upon a subsequent application.

The Administrative Court of Sofia, presented with the case, submitted five questions seeking clarification on the connection between gender-based violence as defined by the Qualification Directive and relevant international law definitions outlined in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The questions also addressed establishing membership within a particular social group (PSG) in the context of protection claims based on gender-based violence in general and domestic violence specifically. Finally, they sought to understand how to demonstrate the necessary link between persecution acts and reasons in cases where non-state actors are the persecutors, and whether the harm suffered within this context qualifies as ‘serious’ enough for subsidiary protection.

AG de la Tour’s opinion starts by examining the first question from the Administrative Court of Sofia regarding the concept of ‘gender-based violence’ and its definition across international and EU law. Citing Article 78(1) TFEU, which mandates that EU asylum policy must align with the 1951 Convention relating to the Status of Refugees (Refugee Convention), its 1967 Protocol, and other pertinent treaties, the AG investigates which treaties are applicable in this situation. Emphasizing the Refugee Convention’s importance, the AG references the aforementioned UNHCR Guidelines concerning gender-related persecution. He suggests these guidelines offer a valuable framework for comprehending ‘gender’ and its significance in refugee status determination. He also mentions the EU Victim Protection Directive, which defines gender-based violence in Recital 17. He dismisses both CEDAW and the Istanbul Convention as irrelevant for implementing the Qualification Directive, given the EU has not ratified or acceded to them, respectively. This dismissal seems premature, considering the UNHCR Guidelines explicitly mention CEDAW as instrumental in analyzing and understanding sex and gender in refugee contexts. The UNHCR Guidelines do not mention the Istanbul Convention, as it was only opened for signature in 2011, nine years after the Guidelines were published. As we will see, the Opinion also disregards other vital aspects of the UNHCR Guidelines.

Next, AG de la Tour addresses the issue of establishing membership within a PSG for women at risk of violence, particularly concerning domestic violence, honor crimes, and forced marriage. Outlining the two tests for PSG membership – ‘innate characteristics’ and ‘social perception’ – and reiterating their cumulative nature under the Qualification Directive, the AG clarifies how women facing domestic violence can fulfill both. First, he states that an applicant’s gender, linked to their biological sex, is an immutable characteristic, thereby satisfying the first test through their biological sex. Although the UNHCR Guidelines endorse this approach, they also clarify that meeting just one of the two tests is sufficient for PSG membership. Requiring both tests be met cumulatively under EU law creates a problem when relying on biological sex to satisfy the innate characteristics test. Depending on biological sex – a concept difficult to define in itself – for the innate characteristics test risks excluding trans individuals from the relevant group, even if they meet the social perception test based on societal treatment. While the applicant in this case is not transgender, AG opinions and CJEU judgments impact many beyond the individual case. Therefore, when defining EU law terms, AGs and the Court should consider the potential consequences of their interpretations and avoid restrictive interpretations that could negatively impact future applicants. As Avgeri points out, establishing PSG membership based on (trans or non-conforming) gender is complex, necessitating careful consideration of issues raised by diverse gender identities in discussions about gender-related persecution. Unfortunately, AG de la Tour’s Opinion does not take this nuanced approach.

The Opinion’s approach to the social perception test is also problematic. While the AG’s explanation that gender is a social construct creating inequalities between men and women is positive, stating that “women, solely due to their status as women, exemplify a social group defined by inherent and unchangeable characteristics likely perceived differently by society,” his subsequent qualification undermines this assertion. He adds that women are perceived differently “according to their country of origin, based on the social, legal, or religious norms of that country or the customs of their community.” Asserting that the relevant PSG “comprises women in a specific society (not “women” generally)” allows for arguments that women in certain societies are not perceived as different. This has potentially negative consequences for women from societies viewed as ‘progressive.’ The UNHCR Guidelines, while acknowledging the role of social, legal, or religious norms in the differential treatment of women, still identify ‘women’ as the relevant PSG. Seven years after the #MeToo movement exposed the widespread (sexual) violence against women globally, the AG’s approach to the social perception test appears detached from the lived experiences of women in all societies.

Maintaining its focus on the cultural context of the country of origin for the social perception test, the Opinion examines the relevance of Recital 30 of the Qualification Directive in establishing PSG membership. This Recital states: “When defining a particular social group, issues arising from an applicant’s gender, including gender identity and sexual orientation, which may be related to certain legal traditions and customs, resulting in for example genital mutilation, forced sterilisation or forced abortion, should be given due consideration insofar as they are related to the applicant’s well-founded fear of persecution” (emphasis added). The AG interprets this to mean that the persecution acts mentioned in the Recital can be “applied to define the relevant PSG” and that “the nature of the persecution, targeting specific victims, allows for characterizing the ‘distinct identity’ of a social group.” Returning to the case before the Administrative Court of Sofia, the AG asserts that there is “nothing preventing a competent national authority from considering a female child or adolescent, or even a woman, as a member of a particular social group because she would risk forced marriage if returned to her home country.” Furthermore, national authorities could also find that “a woman forced to return to her home country belongs to a group with a distinct identity in that country because, upon return, she would be vulnerable to acts of serious marital violence (beatings, rape, and other sexual harm, etc.) customary in certain communities.” This approach comes dangerously close to defining the PSG based on the feared persecution. However, the UNHCR Guidelines remind us that “a particular social group comprises individuals sharing a common characteristic other than their risk of persecution or who are perceived as a group by society.” Although the AG considers the feared persecution relevant to the social perception test, referencing the specific risk is unnecessary if we accept that the relevant PSG is ‘women’ and not ‘women in a given society.’

The Opinion then analyzes the link between the feared persecution and the Convention ground of ‘membership of the PSG,’ which in this case is ‘women (in a given society).’ Comparing this section with the UNHCR Guidelines reveals immediate issues. The Opinion delves into a detailed discussion on the state of origin’s inability or unwillingness to protect, given the threat originates from non-state actors. This discussion, however, is irrelevant when determining the link between the feared persecution and the Convention ground. As stated in the Qualification Directive and reiterated by the AG, such a link can be established by finding a connection “between the reasons [for persecution] and the acts of persecution … or the lack of protection against such acts” (Article 9(3); emphasis added). Similarly, the UNHCR Guidelines state: “In cases involving a risk of persecution by a non-state actor (e.g., husband, partner, or other non-state actor) for reasons related to one of the Convention grounds, the causal link is established, whether or not the lack of state protection is Convention-related.” The AG, however, believes that “the competent national authority must assess whether a causal link exists between, on the one hand, the reasons behind the domestic violence within the household or family, namely membership of a particular social group, and, on the other hand, the lack of protection from the authorities of the country of origin … against those acts.” Since membership in the PSG ‘women’ explains why women experience domestic violence from non-state actors, the link should be established without considering the reasons for the lack of state protection. Requiring a link between the reasons for persecution and the failure of state protection without acknowledging the alternative of establishing a connection between the reasons for and the acts of persecution creates an unnecessary obstacle in refugee claims.

Finally, the AG addresses eligibility for subsidiary protection. This section offers some positive clarifications, particularly that an honor crime, which “involves killing a person,” constitutes an ’execution’ under Article 15(a) of the Qualification Directive and that other domestic violence acts can amount to ‘serious harm’ under Article 15(b) of the Qualification Directive.

AG de la Tour’s Opinion in C‑621/21 provides some welcome clarifications, but the details reveal potential problems. Importantly, it clarifies that women fearing family violence can be granted refugee status based on PSG membership and that those who don’t qualify for refugee status may be eligible for subsidiary protection. However, the Opinion’s reasoning, particularly regarding PSG membership and the link to the feared persecution, contradicts the UNHCR Guidelines despite acknowledging their importance earlier in the Opinion. This suggests that AG de la Tour’s Opinion continues the CJEU’s pattern of selectively using international (soft) law instruments when interpreting the Qualification Directive. In conclusion, while the Opinion appears to be a positive step towards clarifying international protection entitlement for women at risk of gender-based violence, much of the discussion introduces unnecessary barriers to claiming such entitlement.