Türkan Ertuna Lagrand (Assistant Professor, Utrecht University School of Law) and Salvo Nicolosi (Senior Assistant Professor, Utrecht University School of Law)

Photo credit: USAIDAfghanistan, via Wikimedia Commons

A central question in international refugee law is whether women can qualify for refugee status based solely on their gender. This debate recently reached the Court of Justice through two connected cases, AH and FN, concerning women seeking asylum. Advocate General Richard de la Tour issued his opinion on these cases on November 9, 2023. These cases stem from a request by the Austrian High Administrative Court seeking clarification on whether, under the Qualification Directive, women facing government-imposed restrictions based solely on gender can be recognized as refugees without individually assessing their situation.

Pending the Court of Justice’s ruling, the Advocate General’s opinion is significant due to its focus on three key elements: the nature of persecution stemming from discriminatory policies, the recognition of women as a distinct social group, and the necessity of individual assessments when granting refugee status.

This post highlights the potential for the Court of Justice to broaden the scope of protection in Europe and contribute to the evolution of international refugee law by addressing these three dimensions.

Systematic discrimination against women

The referral from the Austrian Court originates from the Taliban’s rise to power in Afghanistan in 2021 and the subsequent implementation of discriminatory measures targeting women. These measures, as highlighted by the Austrian High Administrative Court and United Nations experts, severely limit women’s civil and political rights. These restrictions include mandatory male guardianship for travel, enforced dress codes, exclusion from political participation and decision-making, denial of access to legal protection from gender-based violence, and lack of protection against forced marriages. Additionally, these measures curtail social, economic, and cultural rights, impacting women’s access to employment, healthcare, education, and sports. Afghanistan stands out as the only nation globally where girls are prohibited from pursuing education beyond the primary level.

The cumulative impact of these measures has created a situation the Advocate General characterized as ‘severe, systematic, and institutionalized discrimination’ against women.

Discrimination is central to determining persecution in refugee status claims. However, not all discrimination constitutes persecution. The Advocate General’s opinion clarifies that, based on the UNHCR Handbook, discrimination only qualifies as persecution when it results in significant harm, such as restricted access to education.

The Advocate General concluded that while some measures individually qualify as persecution under Article 9 (1) (a) of the Qualifications Directive, others, when taken together, meet the threshold for persecution under Article 9 (1) (b) due to systematic human rights violations that significantly impact individuals similar to those described in Article 9 (1) (a).

Women as a particular social group

These joined cases presented Advocate General de la Tour with an opportunity to build upon arguments he made earlier in the WS case. He asserts that women can constitute a particular social group based solely on their gender. They share inherent and unchangeable characteristics that lead to societal perceptions influenced by their home country’s social, legal, religious norms, and customs. Advocate General de la Tour effectively refuted the argument, often used by senior courts, that “women as women” cannot be a social group due to the group’s size. He argues that a group’s “distinct identity,” stemming from societal perceptions, shouldn’t be determined by size. This aligns with the UNHCR’s position and scholarly views that challenge this approach.

Challenging the individual assessment as the foundational basis for refugee status

To quote Hathaway and Foster, it’s understood that women with a well-founded fear of persecution based on gender should receive refugee status. Despite the Qualification Directive’s ambiguity (Article 10) on considering gender in social group determination, there’s a consensus in Europe recognizing women as a social group under the Convention. Following the rapid deterioration of the situation for women and girls in Afghanistan, Member State authorities have gone a step further, recognizing them as refugees based solely on gender without individual risk assessments.

Austria pioneered the acceptance of Afghan women as refugees without individual assessments, and other states have followed suit. Sweden announced in December 2022 that all Afghan women seeking asylum would be granted refugee status. Initially committed to individual assessments, Denmark shifted to a ‘relaxed assessment of evidence’ and, as of January 30, 2023, grants asylum to all Afghan women and girls based solely on gender. Similarly, the Finnish Immigration Service declared in early 2023 that all Afghan women and girls would be granted refugee status.

The Advocate General addressed this practice by explaining that it falls within the discretion provided to Member States under Article 3 of the Qualification Directive to implement more favorable standards for refugee status determination, as long as these standards align with the Directive. He cited the ruling in LW, where the Court determined that such standards could involve easing requirements for granting refugee status without contradicting the Directive’s overall framework and objectives. The Advocate General agreed that asylum applications from Afghan women and girls possess specific characteristics that permit authorities to deviate from the individual assessment principle outlined in Article 4 (3) of the Qualification Directive. The discriminatory measures faced by these women are part of a systemic regime of segregation and oppression solely due to their gender, making it unnecessary to establish individual targeting beyond their gender.

Despite the clear objective circumstances in Afghanistan, the Advocate General didn’t base his arguments on prima facie recognition of refugee status. This approach, endorsed by UNHCR, allows for exceptions to individual assessments. Zieck describes prima facie recognition as a collective status determination presuming that each group member qualifies for refugee status based on objective information about the circumstances causing their flight. While ideal for large-scale refugee influxes, it can also apply to smaller groups facing similar situations. However, given the unclear legal basis and framework of this practice, the Advocate General might have chosen to frame his arguments within EU asylum law, particularly Article 4 of the Qualification Directive. This was a justifiable and pertinent choice as it clarifies the extent to which EU asylum law allows for departures from individual assessments, offering valuable guidance to the Court.

Concluding remarks

The Joined Cases of AH and FN hold significant implications, particularly for Member States that have already revised their asylum policies concerning Afghan women and for those preparing to follow suit, anticipating a favorable ruling from the Court. If the Court adopts Advocate General de la Tour’s proposed framework, it would align the EU’s stance with UNHCR and the Human Rights Council, significantly advancing international refugee law.