The ECJ and the Rights of Afghan Women-Amir Mohammad Majidi

Amir Mohammad Majidi - Master's student in Public International Law at University of Tehran

The status of women’s rights in Afghanistan has experienced significant deterioration, particularly following the resurgence of Taliban rule in August 2021. This decline has reversed decades of progress toward gender equality that had been achieved through various social and legal reforms (here, and here). Under the Taliban's governance, restrictive measures targeting women's autonomy have been systematically implemented, leading to a situation that has been characterized as the most severe women's rights crisis globally.

The Taliban's policies have severely restricted women's access to education, healthcare, and employment, with reports indicating that women are banned from secondary and higher education (here).These measures have been compounded by a resurgence in early, forced, and child marriages, with recent data showing that 28.7% of Afghan girls under 18 are married, and 9.6% under the age of 15 (here). The restrictions on their free movement further exemplify a brutal crackdown on personal freedoms, which not only violates international human rights laws but also reflects a significant erosion of gender equality in the country (here, and here). In fact, Afghanistan is ranked last on the Women, Peace and Security Index, and the United Nations has referred to the current conditions as a form of "gender apartheid" (here, and here). This system of oppression recently gained legal attention as ‘gender apartheid’ to distinguish the severity of the situation of women’s rights in this context (see this and this).

On 4th October 2024, In response to this dire situation, the Third Chamber of the European Court of Justice in AH & FN v. Federal Office for Immigration and Asylum(C‑608/22 and C‑609/22) held that ‘gender’ and ‘nationality’ alone are sufficient grounds for a country to grant asylum to Afghan women. The ECJ decision reflects a critical evolution in the understanding of refugee protection based on gender-based persecution. Also ECJ’s ruling  is the second ray of hope in line, considering the recent ground-breaking move by a group of countries i.e., Australia, Canada, Germany, and the Netherlands to file a case against Afghanistan before the International Court of Justice (see here),  alleging violations of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) over gender-based discrimination (see here), following the Taliban’s brutal repression of women and girls. The court emphasized that these factors are sufficient for asylum qualification, as the Taliban's discriminatory policies toward women constitute persecution (here).This landmark ruling, which came in response to cases where Afghan women's asylum applications were previously rejected, has established a precedent that merely being a woman is enough to justify accepting asylum applications in European countries (here).

On the question of whether Afghan women can be granted refugee status based solely on their gender and nationality without individual assessment, the ECJ emphasizes that applications for international protection must undergo individual assessment, as stipulated in Article 4 of Directive 2011/95. This assessment should be conducted on a case-by-case basis, considering specific facts and circumstances to determine if the applicant’s fear of persecution is well-founded. Article 4(3) lists elements that authorities must consider, including relevant facts about the country of origin and the applicant’s personal circumstances such as background, gender, and age (Para 48-51).  The Court noted that Article 10(3)(b) of Directive 2013/32 requires Member States to obtain precise, up-to-date information from various sources about the general situation in applicants’ countries of origin. For applications made by women, authorities should collect information on women’s legal, political, social, and economic rights, cultural norms, prevalence of harmful practices, and risks women might face upon return. The individual assessment requirement implies that authorities should adapt their methods of evaluating facts and evidence according to each application’s specific circumstances (Para 54).

The ECJ emphasized that some of the measures, such as forced marriage and the lack of protection against gender-based violence and domestic violence, in themselves, constitute acts of persecution. Moreover, the Court stated that some of the systematic and discriminatory measures enforced by the Taliban against women, if taken separately, might not constitute an act of persecution; these measures, taken cumulatively, impact women to such a degree that they meet the required threshold of severity to constitute acts of persecution. These acts include restricting access to healthcare, political life and education, and the exercise of professional or sporting activity, restricting freedom of movement, or infringing the freedom to choose one’s clothing (Paras 43 and 44).

Reflected in the ECJ’s ruling, is the granting of refugee status to women escaping the oppressive regime of apartheid automatically and without a one-by-one assessment of well-founded fear of persecution. The Court found that some of the discriminatory measures imposed on women deliberately and systematically denies their fundamental rights tied to human dignity solely because of their gender. By holding that “those measures reflect the establishment of a social structure based on a regime of segregation and oppression in which women are excluded from civil society and deprived of the right to lead a dignified daily life in their country of origin,” the Court confirms the existence of an institutionalized system of discrimination, segregation, and deprivation of fundamental rights that no one can escape from (Para 44). By recognizing the collective impact of state-imposed restrictions on women's rights, the ruling provides a framework for more consistent and compassionate asylum policies across member states, ultimately aiming to improve protection for vulnerable populations fleeing oppressive regimes (here).

The Court while making references to the reports from the European Union Agency for Asylum and the United Nations High Commissioner for Refugees recognized the current situation for Afghan women and girls under the Taliban Regime. It held that these reports indicated a presumption of refugee status recognition for Afghan women and girls due to widespread persecution based on gender. Given this context, the Court held that for Afghan women applicants, national authorities may not need to establish specific risks of persecution beyond factors related to nationality and gender (Para 57). In its conclusion, the Court interpreted Article 4(3) of Directive 2011/95 as not requiring competent national authorities to consider factors beyond ‘gender’ and ‘nationality’ when assessing whether discriminatory measures against women in their country of origin amount to persecution under Article 9(1) of the directive. This interpretation applies specifically to the individual assessment of applications for international protection from women, particularly in light of the current situation for Afghan women and girls (Para 58).

The judgment emphasized that women subjected to systematic oppression, particularly in Afghanistan, can be recognized as a "particular social group" under international refugee law. This designation aligns with previous cases, such as WS (C-621/21), where the Court acknowledged the distinct vulnerabilities faced by women in certain contexts, reinforcing the necessity for a gender-sensitive interpretation of asylum claims (here). The Court's approach builds on the principles of equality between women and men, as highlighted in its prior judgments, particularly in K, L (C-646/21), which underscored the importance of addressing gender inequality in assessing claims for asylum (here).

The Court's decision significantly broadens the standards for refugee protection within the EU, particularly for Afghan women facing gender-based persecution. It suggests that country of origin information regarding the status of women—such as their legal rights, societal roles, and the prevalence of violence against them—may be sufficient for asylum determinations when such factors indicate widespread and severe discrimination (here).

The UNHCR has called for a uniform application of the standards set forth by the ECJ, advocating comprehensive assessments of individual cases. The organization underscores the importance of precise and up-to-date information on the situation in Afghanistan, urging member states to prioritize the safety of women fleeing persecution (here).

While several European nations, including Germany, Sweden, and the Netherlands, had already adopted progressive approaches in accepting Afghan women as refugees based solely on their gender, many countries maintained more restrictive policies. For instance, despite recognizing Afghan women as vulnerable individuals, the Turkish courts have not consistently granted them refugee status based on their membership in a ‘particular social group’ and often impose a high burden of proof on them. (Also, see here) Similarly, some Eastern European countries have required Afghan women to demonstrate specific, individual threats beyond general gender-based discrimination, while certain jurisdictions have maintained that adopting Western lifestyles is a ‘choice’ that could be renounced to avoid persecution. Thus, ECJ’s ruling which can serve as a binding precedent will force these restrictive states to align their asylum policies with this more progressive interpretation.

Human rights organizations have largely praised the ECJ’s decision, viewing it as a crucial step toward ensuring that gender-related persecution is recognized as a legitimate ground for asylum. They argue that the ruling reinforces the necessity of a nuanced understanding of persecution, taking into account the intersectionality of gender and cultural identity (here). Advocacy groups continue to lobby for more robust protections for Afghan women and call for the EU to take decisive action in facilitating their immigration and integration.

In conclusion, I believe that recognizing gender-based persecution, particularly the ‘gender apartheid’ faced by Afghan women, as grounds for asylum marks a significant step towards a more feminist international law. This landmark judgment affirm that restrictions on women, both individually and cumulatively, constitute persecution. This interpretation not only protects Afghan women but sets a global precedent for refugee law and gender equality, demonstrating the power of judicial reinterpretation to address human rights challenges. This precedent encourages other states to adopt progressive jurisprudence on gender-based persecution and underscores the need for a global commitment to combat gender apartheid and ensure justice for affected women and girls.