Heschl, L. ‘Developing the Human Rights-Based Approach to Persecution Further? The CJEU’s Approach in the Afghan Women and Girls Case,’ 2025

Heschl, L. ‘Developing the Human Rights-Based Approach to Persecution Further? The CJEU’s Approach in the Afghan Women and Girls Case,‘ European Journal of Migration and Law, 20 March 2025

Abstract

The human-rights based approach has become part of the canon in refugee law when it is about assessing whether an act or measure amounts to persecution. While it mostly has been perceived as objective framework for providing rather neutral content to persecution, its inconsistent application showed its pitfalls in cases where rights other than ‘basic’ and fundamental ones are violated including cases of widespread and systematic gender-based discrimination. In October 2024 the Court of Justice of the European Union (CJEU) issued its judgement in the Afghan women and girls case. By dealing with the constantly deteriorating situation of Afghan women and girls under the re-established Taliban regime the Court not only had the opportunity to bring the structural discrimination of Afghan women and girls under the application of the EU Qualification Directive (QD) but also to consolidate and develop its understanding of the human rights-based approach to persecution in EU asylum law further. By analysing its judgement and comparing it to previous approaches, this article argues that the judgement while being an important step for the protection of Afghan women and girls has revealed the difficulties of the Court in overcoming a hierarchical view of human rights when assessing persecution.