New Policy Paper: Gender as sufficient ground: Differences between the Rule of Law and implementing asylum policies in the EU
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Executive Summary
On 4 October 2024, in a landmark decision, the Court of Justice of the European Union ruled that ‘gender’ and ‘nationality’ alone constitute sufficient grounds for an EU member state to grant asylum to Afghan women (AH & FN v. Federal Office for Immigration and Asylum, 2024). The CJEU classified the discriminatory policies carried out by the Taliban Government against Afghan women – such as restrictions on education, employment, healthcare, and freedom of movement – as ‘acts of persecution’, asserting that the sole characteristic of being a woman from Afghanistan shall automatically entitle an individual to refugee status, thus recognising that Afghan women, as a group, face inherent risks (European Network of Migrant Women, 2024). The approach adopted by the Court marks a transformative and feminist evolution of the legal thinking about systematic gender-based discrimination and violence. The ruling constitutes a precedent that could not only reshape asylum policies but also potentially advance women’s rights globally (Gupta, 2024).
The case involved two Afghan women, ‘AH’ and ‘FN’, who applied for asylum in Austria. The competent authorities rejected their applications, questioning AH’s credibility and claiming that FN did not face a real risk of persecution. Following the dismissal of the women’s appeals, the case was brought before the Austrian Supreme Administrative Court, which sought clarification from the CJEU.
The CJEU’s judgement sets out the international legal framework within which the case is to be examined. Firstly, the definition of ‘refugee’, as outlined in Article 1 of the 1951 Geneva Convention and the 1967 Protocol on the Status of Refugees (AH & FN, 2024 para. 3). Secondly, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), reminding the binding nature of the convention for State parties (AH & FN, 2024 para. 4-7). Thirdly, the Istanbul Convention of 2011, which entered into force for the EU in 2023, to prevent and combat violence against women (AH & FN, 2024 para 8-11). Finally, the Court analyses the EU Directive 2011/95 (the ‘Qualification Directive’ – see later), which sets out the standards for recognising third-country nationals or stateless persons as refugees or eligible for subsidiary protection.
After reviewing relevant reports released by the European Union Agency for Asylum (Country Guidance: Afghanistan, 2023) and the UNHCR (Statement on the concept of persecution on cumulative grounds in light of the current situation for women and girls in Afghanistan, 2023) regarding the return of the Taliban to power in 2021 and its consequences for Afghan women the CJEU assessed the cumulative effect of those discriminatory measures and defined them as ‘act(s) of persecution’, as outlined in Article 9(1)(b) of Directive 2011/95 – namely, as acts that reach a severity level that constitutes severe breaches of basic human rights.
In conclusion, the CJEU confirmed that asylum applications must be assessed on a case-by-case basis (Article 4(3) Directive 2011/95/EU). However, this approach allows for a cumulative consideration of discriminatory measures, together with the recognition of Afghan women and girls as a distinct ‘social group’ enduring systematic discrimination (Heinrichs, 2024). As a result, the Court ruled that relevant national authorities may not need to establish specific risks beyond factors related to nationality and gender when processing asylum applications by Afghan women (AH & FN, 2024 para. 57-58).
The stance taken by the Court in AH & FN shows a significant departure from the traditionally State-centric approach to refugee protection in the EU. Nevertheless, the spirit embodied in the judgement of last October does not match the approach lying behind the recently endorsed New Pact on Migration and Asylum (May 2024), which will enter into force in 2026. Launched in 2020 by the European Commission, it employed the rhetoric of a ‘fresh start’ (European Commission, 2020) and the need to move away from the lack of effectiveness and solidarity between Member States witnessed under the previous Dublin System. However, the Pact uses a language that remains closely tied to the Dublin mechanisms and may not lead to significant changes in actual policies by States (Barletta & Paparusso, 2021).
The structural inefficiencies of EU cooperation that emerged during the ‘refugee crisis’ of 2015, and the impossibility of effectively implementing solidarity mechanisms, leaving the responsibility of the examination of asylum applications to a few Member States, put great hope into the New Pact on Migration and Asylum (De Bruycker, 2020). Nonetheless, the newly endorsed Pact leaves in place already existing distributive imbalances, ambiguities about solidarity mechanisms, and no consensus about new orientations for controversial national policies, such as the contentious Italy-Albania agreement for the transfer of migrant processing to the Balkan nation - a first attempt by an EU country to divert migrants to a non-EU State.
The main points of the New Pact were described by Margaritis Schinas – Commission’s Vice-President for Promoting a European Way of Life between 2019 and 2024 – as a house with three floors: 1) The external dimension – based on strengthened partnerships with countries of origin and transit; 2) The enhanced management of external borders; and 3) The assurance of solidarity to Member States under pressure (European Commission, 2020). Thus, partnerships with third countries and the externalisation of migration control constitute central elements of the Pact, which essentially reiterates existing policies and methods. The priorities seem to remain the improvement of the efficiency of returns and the strengthening of EU external borders, while also proposing new instruments to pressure third countries into cooperating.
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