European Court Of Justice: Gender And Nationality Sufficient To Grant Afghan Women Asylum

On October 4, 2024, the European Court of Justice (ECJ) ruled that gender and nationality alone are sufficient for a country to grant asylum to Afghan women. The ECJ, the supreme court of the European Union, rules on matters of European Union law. The case, brought before the ECJ, concerned Afghan women who were seeking international protection in Austria, and their asylum applications were rejected in 2015 and 2020.

The ECJ was asked to provide clarification in relation to two important questions. First, the referring court sought to establish whether the measures taken by the Taliban in respect of women are sufficiently serious to be classified as an “act of persecution” within the meaning of Article 9(1) of Directive 2011/95. The measures considered by the court included that women “are denied participation in political office and political decision-making processes; are provided with no legal means to be able to obtain protection from gender-based and domestic violence; are generally at risk of forced marriages; (...) are not allowed to engage in gainful employment or are allowed to do so only to a limited extent, mainly at home; have difficulties in accessing health facilities; are fully or largely denied access to education; are not allowed to be or move about in public without being accompanied by a man (who must be of a certain family relationship) or, at most, are permitted to do so only a certain distance from home; must completely cover their bodies and veil their faces in public; may not take part in any sports.” Second, the court further sought clarification whether it is sufficient, for the granting of [refugee] status, that a woman is affected by those measures in the country of origin merely on the basis of her gender, or is it necessary to assess a woman’s individual situation in order to determine whether she is affected by those measures.

The ECJ found that the directive “must be interpreted as meaning that an accumulation of discriminatory measures in respect of women (...) adopted or tolerated by an ‘actor of persecution’ within the meaning of Article 6 of that directive comes within the concept of ‘act of persecution’, since those measures, by their cumulative effect, undermine human dignity as guaranteed by Article 1 of the Charter.”

It further added that in the case of Afghan women, “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.”

The ECJ further found that the directive must be interpreted as not requiring the competent national authority to take into consideration, in the individual assessment of her application, factors particular to her personal circumstances other than those relating to her gender or nationality.

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This judgment aligns with the responses to the first Taliban regime, namely between 1996 and 2001. At the time of the first Taliban regime, the court “held that the overall situation of those women in Afghanistan had to be deemed sufficiently serious to find that the discriminatory measures targeting them constituted, in themselves, persecution under the Geneva Convention. Therefore, at that time, an applicant for international protection was granted refugee status on the sole ground of being an Afghan woman.” This approach was changed after the fall of the first Taliban regime and the individual circumstances had to be considered. However, the return of the Taliban in August 2021 meant that this approach was not adequate anymore and similar responses as those to the first Taliban regime were needed.

The ECJ judgment also reflects the UNHCR 2023 statement concerning the concept of persecution on cumulative grounds in the light of the current situation for women and girls in Afghanistan - that there is 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.

As it stands, Sweden, Finland and Denmark already grant refugee status to all Afghan women seeking asylum, recognizing the severity of the persecution of women in Afghanistan - because of their gender.

The ECJ judgment is an important assessment of the nature and severity of the persecution of women in Afghanistan - persecution that requires adequate responses, including international protection.