On 4th October, the Third Chamber of the European Court of Justice in AH & FN v. Federal Office for Immigration and Asylum held that ‘gender’ and ‘nationality’ alone are sufficient grounds for a country to grant asylum to Afghan women. The ECJ also classified the discriminatory policies imposed by the Taliban regime against Afghan women as ‘acts of persecution’, providing grounds for refugee status recognition. Thus, in essence, the Court held that every Afghan woman is a refugee/a victim of persecution simply based on being a ‘woman’ from Afghanistan. The ECJ decision 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, Wigard’s analysis 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.
In this contribution, I examine the ECJ’s reasoning in AH & FN and contend that the ECJ’s approach embodies both transformative and feminist constitutionalism, marking a significant evolution in legal thinking about systemic gender discrimination. I conclude that by recognizing the cumulative effect of discriminatory measures against Afghan women as constituting ‘acts of persecution,’ the Court has set a precedent that could reshape asylum policies and advance women’s rights globally.
The Case of Two Afghan Women
The case concerned two Afghan women, AH and FN, who sought international protection in Austria. AH, born in 1995, fled to Iran after her father attempted to sell her, later moving through Greece before entering Austria in 2015. FN, born in 2007, had never lived in Afghanistan and applied for protection in Austria in 2020 after fleeing Iran, where she lived without legal status. The Federal Office for Immigration and Asylum (FOIA) granted both women subsidiary protection but denied them refugee status, citing a lack of credibility in AH’s case and no real risk of persecution for FN. Both women appealed, arguing they had adopted Western values and lifestyle, and that the Taliban’s return to power in 2021 had drastically changed the situation for women in Afghanistan.
The Federal Administrative Court dismissed their appeals, stating that their adopted Western lifestyle was not so essential to their identity that they couldn’t renounce it to avoid persecution. The case then reached the Supreme Administrative Court, which sought clarification from the ECJ on two key points; (1) whether the Taliban’s cumulative measures against women constitute ‘acts of persecution’ under EU Directive 2011/95, and (2) whether Afghan women can be granted refugee status based solely on their gender and nationality without individual assessment. The Supreme Administrative Court noted that while individual measures might not constitute serious breaches of fundamental rights, their combined effect could potentially be severe enough to justify refugee status.
Independent v. Cumulative Acts of Persecution
On the question of whether the accumulation of discriminatory measures against women in Afghanistan under the Taliban regime constitutes an ‘act of persecution’ as defined in Article 9(1)(b) of Directive 2011/95, the ECJ emphasized that the Directive must be interpreted in light of the Article 1(A)(2) of the Geneva Convention, the Istanbul Convention, and the CEDAW, which collectively affirm women’s rights to equality, protection from gender-based violence, and freedom of choice in various aspects of life. The ECJ noted that for measures to be considered persecution, they must reach a level of severity comparable to that described in Article 9(1)(a) of the Directive, which refers to severe breaches of basic human rights. [Para 32-33].
The Court distinguished between measures that could be classified as persecution on their own and those that contribute to persecution when considered cumulatively. The ECJ found that some measures, such as forced marriage and lack of protection against gender-based violence, can be classified independently as acts of persecution under Article 9(1)(a) of the Directive. These acts are comparable to forms of slavery or inhuman and degrading treatment, which are prohibited under Articles 3 and 4 of the European Convention on Human Rights (ECHR). [Para 42-43]
In its decision, the Court held that the discriminatory measures against Afghan women do indeed constitute ‘acts of persecution’ under Article 9(1)(b) of Directive 2011/95. The ECJ reasoned that while some individual measures might not reach the threshold of persecution on their own, the cumulative effect of these measures-including forced marriages, lack of protection against gender-based violence, restrictions on healthcare access, education, employment, and freedom of movement – attains the required level of severity. [Para 44] The Court emphasized that these measures systematically deny Afghan women fundamental rights related to human dignity based on their gender, establishing a regime of segregation and oppression that excludes women from civil society and deprives them of the right to lead a dignified life in their country of origin. This interpretation, the Court noted, is consistent with Article 9(2) of the Directive, which lists various forms of persecution, including gender-specific acts. [Para 45-46]
Court’s Interpretation of Article 4(3) for Gender-Based Persecution
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 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]
Towards Transformative Interpretation
The ECJ’s approach in AH & FN represents a paradigm shift toward what scholars call ‘transformative constitutionalism.’ By recognizing ‘gender’ as sufficient grounds for asylum and acknowledging the cumulative effect of discriminatory measures as persecution, the ECJ has moved beyond the traditional, state-centric approach to refugee protection. This is a progressive shift from its own jurisprudence, X and X v Belgian, (2017) wherein, the ECJ left the responsibility for granting humanitarian visas to the Member States.
The Court’s approach is also particularly transformative in its holistic consideration of women’s rights, drawing from multiple international conventions and the EU Charter of Fundamental Rights. This is evident in the Court’s statement that these measures ‘blatantly and relentlessly deny Afghan women fundamental rights related to human dignity on account of their gender’ and ‘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.’ [para 44]
Since their takeover in 2021, the Taliban has issued various decrees wherein they have prohibited Muslim girls from education, working anywhere, any involvement in political or public institutions, and imposed restrictions on their travel that Afghan women shall not leave home without ‘real need’ and if they do they must be accompanied with a mahram/male guardian, with a proper ‘hijab’. Muslim Women are also prohibited from entering public areas, including parks, gyms, and public baths. Muslim health workers are not only prohibited from travelling without a mahram, but women patients without a hijab are denied healthcare, transportation, and even basic things like groceries. The recent Taliban’s Law on the Promotion of Virtue and Prevention of Vice (a.k.a. New Morality Rule) is another blow to women’s rights as it imposes severe punishment for Afghan women inter alia including bare singing or speaking outside their homes.
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.
European Feminist Constitutionalism
The ECJ approach in AH & FN also reflects its shift towards a Feminist Constitutionalism approach by recognizing and addressing the specific, gendered nature of persecution faced by Afghan women under the Taliban regime. The ECJ’s approach embodies feminist legal theory along with the indirect discrimination approach by acknowledging that seemingly neutral laws and policies can have disproportionate and discriminatory effects on women. This is evident in the Court’s recognition that an ‘accumulation of discriminatory measures in respect of women’ can constitute persecution (para 46). By acknowledging that the combined effect of various restrictions on Afghan women creates a ‘regime of segregation and oppression,’ the Court moves beyond traditional, individualistic approaches to persecution. Thus, the ECJ’s approach suggests that pervasive and systematic gender discrimination alone can constitute grounds for refugee status, without requiring additional ‘aggravating’ factors. This interpretation may lead to a reevaluation of asylum policies worldwide, particularly in cases where women face multiple, intersecting forms of discrimination that collectively undermine their human dignity. This reflects a feminist constitutional principle that systemic gender discrimination must be analyzed holistically, rather than as isolated incidents. (See, Steininger)
The Court’s interpretative methodology also embodies feminist constitutionalism by explicitly incorporating women-focused international conventions like CEDAW and the Istanbul Convention into its analysis. This broader interpretative framework strengthens the legal protection regime for women and girls in the context of Gender-based asylum law jurisprudence in Europe. This approach also acknowledges that women’s rights and experiences require specific legal frameworks and cannot be adequately addressed through gender-neutral interpretations. Moreover, by ruling that gender and nationality alone can establish grounds for asylum, the Court recognizes the structural nature of gender-based oppression and challenges the traditional requirement for individualized evidence of persecution, demonstrating a commitment to dismantling patriarchal structures through legal interpretation. Earlier, the ECJ in WS v. State Agency for Refugees under the Council of Ministers, also held that women in general, and women facing domestic violence in particular, qualify as a protected ‘social group’ under EU Directive 2011/95.
These decisions collectively demonstrate the ECJ’s commitment to providing a feminist understanding of women’s rights. The evolution from WS to AH & FN shows a clear trajectory towards recognizing gender-based persecution as a fundamental consideration in asylum cases, moving beyond traditional, narrower interpretations of refugee protection grounds. This approach aligns with feminist constitutionalism’s goal of reinterpreting laws and constitutional principles to promote substantive equality and challenge systemic gender-based discrimination, thereby using the law as a tool for social transformation and the advancement of women’s rights.
Conclusion
By interpreting EU law in this manner, the ECJ not only protected Afghan women but also set a precedent that could influence refugee law and gender equality standards globally. This decision represents a step towards using legal interpretation as a mechanism for social change, particularly in advancing marginalized community rights and combating systemic discrimination. The Court’s ruling demonstrates how judicial bodies can play a crucial role in multi-faceted Constitutionalism by reinterpreting existing laws to address contemporary human rights challenges and promote social justice.
Beyond Individual Persecution: European Court’s Constitutionalism in Afghan Women’s Asylum Case
Written by Sarthak GuptaOn 4th October, the Third Chamber of the European Court of Justice in AH & FN v. Federal Office for Immigration and Asylum held that ‘gender’ and ‘nationality’ alone are sufficient grounds for a country to grant asylum to Afghan women. The ECJ also classified the discriminatory policies imposed by the Taliban regime against Afghan women as ‘acts of persecution’, providing grounds for refugee status recognition. Thus, in essence, the Court held that every Afghan woman is a refugee/a victim of persecution simply based on being a ‘woman’ from Afghanistan. The ECJ decision 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, Wigard’s analysis 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.
In this contribution, I examine the ECJ’s reasoning in AH & FN and contend that the ECJ’s approach embodies both transformative and feminist constitutionalism, marking a significant evolution in legal thinking about systemic gender discrimination. I conclude that by recognizing the cumulative effect of discriminatory measures against Afghan women as constituting ‘acts of persecution,’ the Court has set a precedent that could reshape asylum policies and advance women’s rights globally.
The Case of Two Afghan Women
The case concerned two Afghan women, AH and FN, who sought international protection in Austria. AH, born in 1995, fled to Iran after her father attempted to sell her, later moving through Greece before entering Austria in 2015. FN, born in 2007, had never lived in Afghanistan and applied for protection in Austria in 2020 after fleeing Iran, where she lived without legal status. The Federal Office for Immigration and Asylum (FOIA) granted both women subsidiary protection but denied them refugee status, citing a lack of credibility in AH’s case and no real risk of persecution for FN. Both women appealed, arguing they had adopted Western values and lifestyle, and that the Taliban’s return to power in 2021 had drastically changed the situation for women in Afghanistan.
The Federal Administrative Court dismissed their appeals, stating that their adopted Western lifestyle was not so essential to their identity that they couldn’t renounce it to avoid persecution. The case then reached the Supreme Administrative Court, which sought clarification from the ECJ on two key points; (1) whether the Taliban’s cumulative measures against women constitute ‘acts of persecution’ under EU Directive 2011/95, and (2) whether Afghan women can be granted refugee status based solely on their gender and nationality without individual assessment. The Supreme Administrative Court noted that while individual measures might not constitute serious breaches of fundamental rights, their combined effect could potentially be severe enough to justify refugee status.
Independent v. Cumulative Acts of Persecution
On the question of whether the accumulation of discriminatory measures against women in Afghanistan under the Taliban regime constitutes an ‘act of persecution’ as defined in Article 9(1)(b) of Directive 2011/95, the ECJ emphasized that the Directive must be interpreted in light of the Article 1(A)(2) of the Geneva Convention, the Istanbul Convention, and the CEDAW, which collectively affirm women’s rights to equality, protection from gender-based violence, and freedom of choice in various aspects of life. The ECJ noted that for measures to be considered persecution, they must reach a level of severity comparable to that described in Article 9(1)(a) of the Directive, which refers to severe breaches of basic human rights. [Para 32-33].
The Court distinguished between measures that could be classified as persecution on their own and those that contribute to persecution when considered cumulatively. The ECJ found that some measures, such as forced marriage and lack of protection against gender-based violence, can be classified independently as acts of persecution under Article 9(1)(a) of the Directive. These acts are comparable to forms of slavery or inhuman and degrading treatment, which are prohibited under Articles 3 and 4 of the European Convention on Human Rights (ECHR). [Para 42-43]
In its decision, the Court held that the discriminatory measures against Afghan women do indeed constitute ‘acts of persecution’ under Article 9(1)(b) of Directive 2011/95. The ECJ reasoned that while some individual measures might not reach the threshold of persecution on their own, the cumulative effect of these measures-including forced marriages, lack of protection against gender-based violence, restrictions on healthcare access, education, employment, and freedom of movement – attains the required level of severity. [Para 44] The Court emphasized that these measures systematically deny Afghan women fundamental rights related to human dignity based on their gender, establishing a regime of segregation and oppression that excludes women from civil society and deprives them of the right to lead a dignified life in their country of origin. This interpretation, the Court noted, is consistent with Article 9(2) of the Directive, which lists various forms of persecution, including gender-specific acts. [Para 45-46]
Court’s Interpretation of Article 4(3) for Gender-Based Persecution
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 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]
Towards Transformative Interpretation
The ECJ’s approach in AH & FN represents a paradigm shift toward what scholars call ‘transformative constitutionalism.’ By recognizing ‘gender’ as sufficient grounds for asylum and acknowledging the cumulative effect of discriminatory measures as persecution, the ECJ has moved beyond the traditional, state-centric approach to refugee protection. This is a progressive shift from its own jurisprudence, X and X v Belgian, (2017) wherein, the ECJ left the responsibility for granting humanitarian visas to the Member States.
The Court’s approach is also particularly transformative in its holistic consideration of women’s rights, drawing from multiple international conventions and the EU Charter of Fundamental Rights. This is evident in the Court’s statement that these measures ‘blatantly and relentlessly deny Afghan women fundamental rights related to human dignity on account of their gender’ and ‘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.’ [para 44]
Since their takeover in 2021, the Taliban has issued various decrees wherein they have prohibited Muslim girls from education, working anywhere, any involvement in political or public institutions, and imposed restrictions on their travel that Afghan women shall not leave home without ‘real need’ and if they do they must be accompanied with a mahram/male guardian, with a proper ‘hijab’. Muslim Women are also prohibited from entering public areas, including parks, gyms, and public baths. Muslim health workers are not only prohibited from travelling without a mahram, but women patients without a hijab are denied healthcare, transportation, and even basic things like groceries. The recent Taliban’s Law on the Promotion of Virtue and Prevention of Vice (a.k.a. New Morality Rule) is another blow to women’s rights as it imposes severe punishment for Afghan women inter alia including bare singing or speaking outside their homes.
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.
European Feminist Constitutionalism
The ECJ approach in AH & FN also reflects its shift towards a Feminist Constitutionalism approach by recognizing and addressing the specific, gendered nature of persecution faced by Afghan women under the Taliban regime. The ECJ’s approach embodies feminist legal theory along with the indirect discrimination approach by acknowledging that seemingly neutral laws and policies can have disproportionate and discriminatory effects on women. This is evident in the Court’s recognition that an ‘accumulation of discriminatory measures in respect of women’ can constitute persecution (para 46). By acknowledging that the combined effect of various restrictions on Afghan women creates a ‘regime of segregation and oppression,’ the Court moves beyond traditional, individualistic approaches to persecution. Thus, the ECJ’s approach suggests that pervasive and systematic gender discrimination alone can constitute grounds for refugee status, without requiring additional ‘aggravating’ factors. This interpretation may lead to a reevaluation of asylum policies worldwide, particularly in cases where women face multiple, intersecting forms of discrimination that collectively undermine their human dignity. This reflects a feminist constitutional principle that systemic gender discrimination must be analyzed holistically, rather than as isolated incidents. (See, Steininger)
The Court’s interpretative methodology also embodies feminist constitutionalism by explicitly incorporating women-focused international conventions like CEDAW and the Istanbul Convention into its analysis. This broader interpretative framework strengthens the legal protection regime for women and girls in the context of Gender-based asylum law jurisprudence in Europe. This approach also acknowledges that women’s rights and experiences require specific legal frameworks and cannot be adequately addressed through gender-neutral interpretations. Moreover, by ruling that gender and nationality alone can establish grounds for asylum, the Court recognizes the structural nature of gender-based oppression and challenges the traditional requirement for individualized evidence of persecution, demonstrating a commitment to dismantling patriarchal structures through legal interpretation. Earlier, the ECJ in WS v. State Agency for Refugees under the Council of Ministers, also held that women in general, and women facing domestic violence in particular, qualify as a protected ‘social group’ under EU Directive 2011/95.
These decisions collectively demonstrate the ECJ’s commitment to providing a feminist understanding of women’s rights. The evolution from WS to AH & FN shows a clear trajectory towards recognizing gender-based persecution as a fundamental consideration in asylum cases, moving beyond traditional, narrower interpretations of refugee protection grounds. This approach aligns with feminist constitutionalism’s goal of reinterpreting laws and constitutional principles to promote substantive equality and challenge systemic gender-based discrimination, thereby using the law as a tool for social transformation and the advancement of women’s rights.
Conclusion
By interpreting EU law in this manner, the ECJ not only protected Afghan women but also set a precedent that could influence refugee law and gender equality standards globally. This decision represents a step towards using legal interpretation as a mechanism for social change, particularly in advancing marginalized community rights and combating systemic discrimination. The Court’s ruling demonstrates how judicial bodies can play a crucial role in multi-faceted Constitutionalism by reinterpreting existing laws to address contemporary human rights challenges and promote social justice.
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