Beyond Individual Persecution: European Court’s Constitutionalism in Afghan Women’s Asylum Case

On 4th October, the Third Chamber of the European Court docket of Justice in AH & FN v. Federal Workplace for Immigration and Asylum held that ‘gender’ and ‘nationality’ alone are ample grounds for a rustic to grant asylum to Afghan ladies. The ECJ additionally categorised the discriminatory insurance policies imposed by the Taliban regime in opposition to Afghan ladies as ‘acts of persecution’, offering grounds for refugee standing recognition. Thus, in essence, the Court docket held that each Afghan girl is a refugee/a sufferer of persecution merely based mostly on being a ‘girl’ from Afghanistan. The ECJ determination is the second ray of hope in line, contemplating the current ground-breaking transfer by a bunch of nations i.e., Australia, Canada, Germany, and the Netherlands to file a case in opposition to Afghanistan earlier than the Worldwide Court docket of Justice (see, Wigard’s evaluation right here),  alleging violations of the UN Conference on the Elimination of All Types of Discrimination in opposition to Girls (CEDAW) over gender-based discrimination (see right here), following the Taliban’s brutal repression of girls and ladies.

On this contribution, I look at the ECJ’s reasoning in AH & FN and contend that the ECJ’s strategy embodies each transformative and feminist constitutionalism, marking a major evolution in authorized serious about systemic gender discrimination. I conclude that by recognizing the cumulative impact of discriminatory measures in opposition to Afghan ladies as constituting ‘acts of persecution,’ the Court docket has set a precedent that might reshape asylum insurance policies and advance ladies’s rights globally.

The Case of Two Afghan Girls

The case involved two Afghan ladies, AH and FN, who sought worldwide safety in Austria. AH, born in 1995, fled to Iran after her father tried to promote her, later shifting via Greece earlier than coming into Austria in 2015. FN, born in 2007, had by no means lived in Afghanistan and utilized for cover in Austria in 2020 after fleeing Iran, the place she lived with out authorized standing. The Federal Workplace for Immigration and Asylum (FOIA) granted each ladies subsidiary safety however denied them refugee standing, citing an absence of credibility in AH’s case and no actual threat of persecution for FN. Each ladies appealed, arguing they’d adopted Western values and way of life, and that the Taliban’s return to energy in 2021 had drastically modified the scenario for girls in Afghanistan.

The Federal Administrative Court docket dismissed their appeals, stating that their adopted Western way of life was not so important to their id that they couldn’t surrender it to keep away from persecution. The case then reached the Supreme Administrative Court docket, which sought clarification from the ECJ on two key factors; (1) whether or not the Taliban’s cumulative measures in opposition to ladies represent ‘acts of persecution’ underneath EU Directive 2011/95, and (2) whether or not Afghan ladies may be granted refugee standing based mostly solely on their gender and nationality with out particular person evaluation. The Supreme Administrative Court docket famous that whereas particular person measures won’t represent severe breaches of elementary rights, their mixed impact may doubtlessly be extreme sufficient to justify refugee standing.

Unbiased v. Cumulative Acts of Persecution

On the query of whether or not the buildup of discriminatory measures in opposition to ladies in Afghanistan underneath the Taliban regime constitutes an ‘act of persecution’ as outlined in Article 9(1)(b) of Directive 2011/95, the ECJ emphasised that the Directive have to be interpreted in gentle of the Article 1(A)(2) of the Geneva Conference, the Istanbul Conference, and the CEDAW, which collectively affirm ladies’s rights to equality, safety from gender-based violence, and freedom of alternative in numerous facets of life. The ECJ famous that for measures to be thought of persecution, they have to attain a degree of severity similar to that described in Article 9(1)(a) of the Directive, which refers to extreme breaches of primary human rights. [Para 32-33]. 

The Court docket distinguished between measures that may very well be categorised as persecution on their very own and those who contribute to persecution when thought of cumulatively. The ECJ discovered that some measures, similar to pressured marriage and lack of safety in opposition to gender-based violence, may be categorised independently as acts of persecution underneath Article 9(1)(a) of the Directive. These acts are similar to types of slavery or inhuman and degrading remedy, that are prohibited underneath Articles 3 and 4 of the European Conference on Human Rights (ECHR). [Para 42-43]

In its determination, the Court docket held that the discriminatory measures in opposition to Afghan ladies do certainly represent ‘acts of persecution’ underneath Article 9(1)(b) of Directive 2011/95. The ECJ reasoned that whereas some particular person measures won’t attain the edge of persecution on their very own, the cumulative impact of those measures-including pressured marriages, lack of safety in opposition to gender-based violence, restrictions on healthcare entry, schooling, employment, and freedom of motion – attains the required degree of severity. [Para 44]  The Court docket emphasised that these measures systematically deny Afghan ladies elementary rights associated to human dignity based mostly on their gender, establishing a regime of segregation and oppression that excludes ladies from civil society and deprives them of the precise to guide a dignified life of their nation of origin. This interpretation, the Court docket famous, is per Article 9(2) of the Directive, which lists numerous types of persecution, together with gender-specific acts.  [Para 45-46]

Court docket’s Interpretation of Article 4(3) for Gender-Primarily based Persecution

On the query of whether or not Afghan ladies may be granted refugee standing based mostly solely on their gender and nationality with out particular person evaluation, the ECJ emphasizes that purposes for worldwide safety should bear particular person evaluation, as stipulated in Article 4 of Directive 2011/95. This evaluation ought to be carried out on a case-by-case foundation, contemplating particular info and circumstances to find out if the applicant’s worry of persecution is well-founded. Article 4(3) lists parts that authorities should think about, together with related info concerning the nation of origin and the applicant’s private circumstances similar to background, gender, and age. [Para 48-51]  The Court docket famous that Article 10(3)(b) of Directive 2013/32 requires Member States to acquire exact, up-to-date info from numerous sources concerning the basic scenario in candidates’ nations of origin. For purposes made by ladies, authorities ought to accumulate info on ladies’s authorized, political, social, and financial rights, cultural norms, prevalence of dangerous practices, and dangers ladies may face upon return. The person evaluation requirement implies that authorities ought to adapt their strategies of evaluating info and proof in line with every utility’s particular circumstances. [Para 54]

The Court docket whereas making references to the reviews from the European Union Company for Asylum and the United Nations Excessive Commissioner for Refugees acknowledged the present scenario for Afghan ladies and ladies underneath the Taliban Regime. It held that these reviews indicated a presumption of refugee standing recognition for Afghan ladies and ladies because of widespread persecution based mostly on gender. Given this context, the Court docket held that for Afghan ladies candidates, nationwide authorities might not want to determine particular dangers of persecution past components associated to nationality and gender. [Para 57] In its conclusion, the Court docket interpreted Article 4(3) of Directive 2011/95 as not requiring competent nationwide authorities to contemplate components past ‘gender’ and ‘nationality’ when assessing whether or not discriminatory measures in opposition to ladies of their nation of origin quantity to persecution underneath Article 9(1) of the directive. This interpretation applies particularly to the person evaluation of purposes for worldwide safety from ladies, notably in gentle of the present scenario for Afghan ladies and ladies. [Para 58]

In direction of Transformative Interpretation

The ECJ’s strategy in AH & FN represents a paradigm shift towards what students name ‘transformative constitutionalism.’ By recognizing ‘gender’ as ample grounds for asylum and acknowledging the cumulative impact of discriminatory measures as persecution, the ECJ has moved past the normal, state-centric strategy to refugee safety. It is a progressive shift from its personal jurisprudence, X and X v Belgian, (2017) whereby, the ECJ left the duty for granting humanitarian visas to the Member States.

The Court docket’s strategy can be notably transformative in its holistic consideration of girls’s rights, drawing from a number of worldwide conventions and the EU Constitution of Elementary Rights. That is evident within the Court docket’s assertion that these measures ‘blatantly and relentlessly deny Afghan ladies elementary rights associated to human dignity on account of their gender’ and ‘replicate the institution of a social construction based mostly on a regime of segregation and oppression by which ladies are excluded from civil society and disadvantaged of the precise to guide a dignified each day life of their nation of origin.’ [para 44] 

Since their takeover in 2021, the Taliban has issued numerous decrees whereby they’ve prohibited Muslim ladies from schooling, working anyplace, any involvement in political or public establishments, and imposed restrictions on their journey that Afghan ladies shall not go away house with out ‘actual want’ and in the event that they do they have to be accompanied with a mahram/male guardian, with a correct ‘hijab’. Muslim Girls are additionally prohibited from coming into public areas, together with parks, gyms, and public baths. Muslim well being employees should not solely prohibited from travelling with no mahram, however ladies sufferers with no hijab are denied healthcare, transportation, and even basic items like groceries. The current Taliban’s Legislation on the Promotion of Advantage and Prevention of Vice (a.ok.a. New Morality Rule)  is one other blow to ladies’s rights because it imposes extreme punishment for Afghan ladies inter alia together with naked singing or talking outdoors their houses.

Whereas a number of European nations, together with Germany, Sweden, and the Netherlands, had already adopted progressive approaches in accepting Afghan ladies as refugees based mostly solely on their gender, many nations maintained extra restrictive insurance policies. As an example, regardless of recognizing Afghan ladies as weak people, the Turkish courts haven’t constantly granted them refugee standing based mostly on their membership in a ‘specific social group’ and infrequently impose a excessive burden of proof on them. (Additionally, see right here) Equally, some Japanese European nations have required Afghan ladies to reveal particular, particular person threats past basic gender-based discrimination, whereas sure jurisdictions have maintained that adopting Western existence is a ‘alternative’ that may very well be renounced to keep away from persecution. Thus, ECJ’s ruling which might function a binding precedent will drive these restrictive states to align their asylum insurance policies with this extra progressive interpretation.

European Feminist Constitutionalism

The ECJ strategy in AH & FN additionally displays its shift in direction of a Feminist Constitutionalism strategy by recognizing and addressing the particular, gendered nature of persecution confronted by Afghan ladies underneath the Taliban regime. The ECJ’s strategy embodies feminist authorized concept together with the oblique discrimination strategy by acknowledging that seemingly impartial legal guidelines and insurance policies can have disproportionate and discriminatory results on ladies. That is evident within the Court docket’s recognition that an ‘accumulation of discriminatory measures in respect of girls’ can represent persecution (para 46). By acknowledging that the mixed impact of varied restrictions on Afghan ladies creates a ‘regime of segregation and oppression,’ the Court docket strikes past conventional, individualistic approaches to persecution. Thus, the ECJ’s strategy means that pervasive and systematic gender discrimination alone can represent grounds for refugee standing, with out requiring further ‘aggravating’ components. This interpretation might result in a reevaluation of asylum insurance policies worldwide, notably in circumstances the place ladies face a number of, intersecting types of discrimination that collectively undermine their human dignity. This displays a feminist constitutional precept that systemic gender discrimination have to be analyzed holistically, reasonably than as remoted incidents. (See, Steininger)

The Court docket’s interpretative methodology additionally embodies feminist constitutionalism by explicitly incorporating women-focused worldwide conventions like CEDAW and the Istanbul Conference into its evaluation. This broader interpretative framework strengthens the authorized safety regime for girls and ladies within the context of Gender-based asylum regulation jurisprudence in Europe. This strategy additionally acknowledges that girls’s rights and experiences require particular authorized frameworks and can’t be adequately addressed via gender-neutral interpretations. Furthermore, by ruling that gender and nationality alone can set up grounds for asylum, the Court docket acknowledges the structural nature of gender-based oppression and challenges the normal requirement for individualized proof of persecution, demonstrating a dedication to dismantling patriarchal buildings via authorized interpretation. Earlier, the ECJ in WS v. State Company for Refugees underneath the Council of Ministers, additionally held that girls usually, and girls going through home violence particularly, qualify as a protected ‘social group’ underneath EU Directive 2011/95.

These selections collectively reveal the ECJ’s dedication to offering a feminist understanding of girls’s rights. The evolution from WS to AH & FN reveals a transparent trajectory in direction of recognizing gender-based persecution as a elementary consideration in asylum circumstances, shifting past conventional, narrower interpretations of refugee safety grounds. This strategy aligns with feminist constitutionalism’s objective of reinterpreting legal guidelines and constitutional ideas to advertise substantive equality and problem systemic gender-based discrimination, thereby utilizing the regulation as a software for social transformation and the development of girls’s rights.

Conclusion

By deciphering EU regulation on this method, the ECJ not solely protected Afghan ladies but additionally set a precedent that might affect refugee regulation and gender equality requirements globally. This determination represents a step in direction of utilizing authorized interpretation as a mechanism for social change, notably in advancing marginalized neighborhood rights and combating systemic discrimination. The Court docket’s ruling demonstrates how judicial our bodies can play an important function in multi-faceted Constitutionalism by reinterpreting current legal guidelines to handle up to date human rights challenges and promote social justice.