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CJEU: Advocate-General de la Tour – gender alone is sufficient to grant refugee status to Afghani women.
On the 9th of November 2023, Advocate-General de la Tour of the Court of Justice of the European Union (CJEU) released his Opinion in the joint cases of AH and FN, C-608/22 and C-609/22, in response to a reference for a preliminary ruling from the Austrian Supreme Administrative Court. This matter centres around whether gender alone can suffice as a reason to grant refugee status – in the context of the Taliban takeover of Afghanistan – or if an individual risk of persecution must exist.
The first applicant entered Austria in 2015 at the age of 20, and stated that she had fled a forced marriage orchestrated by her father and fled to Iran, finally marrying a Greek national who lived in Austria. The second applicant entered Austria in 2020 at the age of 13. Despite being an Afghan national, she had never lived there and had only lived in Iran. She claimed that, were she to be removed to Afghanistan, she would face risk of abduction, and would not be able to attend school and/or support herself. Additionally, in her application, she explicated that she wanted to be free and have the same rights as men.
The Court and Advocate-General de la Tour were tasked with the interpretation of Articles 9(1)(b) – which refers to “act[s] of persecution” – and 4(3)(c) of the Qualification Directive 2011/95/EU, which relates to the scope of the individual assessment that competent authorities must perform in determining eligibility for international protection. In his analysis of the Qualification Directive and the ECHR, the Advocate-General found that the concept of ‘acts of persecution’ includes an accumulation of discriminatory acts and measures adopted by a country against women and girls to restrict or prohibit, inter alia, their access to education and healthcare, their gainful employment, their participation in public life and politics, their freedom of movement and freedom to take part in sports, depriving them of protection against gender-based and domestic violence and requiring them to cover their entire body and face, in so far as those acts and measures have the cumulative effect of depriving those women and girls of their most basic rights in society and their fundamental right to human dignity. With respect to Article 4(3)(c) of the Qualification Directive, he found that it does not preclude the competent national authorities from concluding, in the context of examining the individual status and personal circumstances of the applicant, that there is a well-founded fear of being subjected to acts of persecution on account of her gender, without having to look for other factors particular to her personal circumstances.
(summary from ELENA Weekly Legal Update – 17 November 2023)
