Abstract
Introduction
The judgment by the Grand Chamber of the Court of Justice in the
At the same time, however, some contentious points can be noted in the fragmented way in which international human rights obligations appear in the Court's case law. In the present judgment the Court underlined respect for international human rights obligations as an inherent part of the EU asylum system, thereby extending the protection offered to women victims of domestic violence. However, when similar interests were at stake in the past as regards residence rights for women victims of domestic violence in the area of regular migration, international human rights obligations did not play such a prominent role. 5 In this case note, the facts of the case will be presented in the section that follows, before examining in detail the reasoning of the Court in section 3. Elements of the Advocate General (AG) Opinion will also be briefly discussed in section 3 on specific points where the AG and the Court followed different approaches. Finally, section 4 will analyse the finding; it will present its ground-breaking elements and it will put forward some points of criticism before offering a brief conclusion in section 5.
Relevant facts
The reference for the preliminary ruling delivered by the Court in the
In May 2020, DAB rejected her application, considering that she did not fulfil the conditions for being recognized as a refugee. To be considered as a refugee under the Common European Asylum System (CEAS), a third-country national shall be found outside their country of nationality and unwilling or unable to return to it due to well-founded fear of persecution on the basis of their race, religion, nationality, political opinion or membership of a particular social group. 6 Upon examining WS's application, the DAB concluded that the acts of violence she had suffered were not connected to any of the aforementioned grounds of persecution. The next step was to examine whether the applicant fulfilled the conditions for receiving subsidiary protection. This status is regulated by EU asylum law and can be granted if a person does not qualify as a refugee, but is still facing a real risk of serious harm if they are returned to their country of origin. 7 In the specific case, the national authorities held that the conditions for granting subsidiary protection were not satisfied as the applicant had not suffered acts of persecution either from the authorities or from certain groups. WS appealed the decision without success.
Under the CEAS, an applicant can lodge a subsequent application for international protection after a final decision is made on their first application. In such cases, for the application to be considered admissible, new evidence must be presented by the applicant. 8 And, indeed, WS submitted a subsequent application for international protection in April 2021 where she invoked new evidence relating to her situation and the situation of women victims of domestic violence in Türkiye. In this second application, WS argued that she was the victim of acts of persecution because of her membership in a particular social group. She claimed that she was prosecuted as part of the group of women victims of domestic violence and women who are likely to be victims of honour crimes by non-state actors from which Türkiye cannot protect her. She further stated that in case of return to Türkiye she feared being killed by her ex-husband or becoming the victim of an honour crime or another forced marriage. As new evidence, WS adduced a decision of a Turkish court imposing a five-month custodial sentence on her ex-husband for committing the offence of threatening her, which was suspended, and he was placed on probation due to the absence of previous convictions. In addition, she adduced evidence in relation to gender-based violence crimes in Türkiye and she invoked the withdrawal of Türkiye from the Istanbul Convention in 2021 as a new circumstance. 9 As an alternative, WS suggested that she satisfied the conditions for granting subsidiary protection as a potential return to Türkiye would expose her to a violation of her fundamental rights under Articles 2 and 3 ECHR.
DAB refused to open a new procedure to examine her application, stating that there was no new evidence on her personal situation and that Turkish authorities had already assisted her. Even though her second application was rejected as inadmissible, the Administrative Court of Sofia sent a series of preliminary questions to the Court of Justice asking for an interpretation of the substantive conditions for granting international protection under the Qualification Directive as a prerequisite for determining whether WS submitted new evidence or not. The referring court asked a total of five question on different provisions of the Qualification Directive. The first three questions concerned gender-based violence and refugee protection in relation to the interpretation of Article 10(1)(d) of the Qualification Directive. Specifically, the first question focused on the definition of gender-based violence for the purposes of application of EU asylum law. The Bulgarian Court asked whether the concept has an autonomous meaning under EU law or whether its interpretation should be guided by international human rights law by reference to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Istanbul Convention. 10 The second and third questions concerned the assessment of membership of a particular social group under Article 10(1)(d) of the Qualification Directive. Specifically, the Bulgarian Court asked whether women can be considered as a particular social group that can suffer prosecution specifically because of their gender, or whether more conditions are required. The fourth question concerned the establishment of a causal link between the reason for persecution and the acts of persecution, or the absence of protection under Article 9(3) of the Qualification Directive. The wording of the provision and the use of the term ‘or’ gave rise to the question of whether a link is demanded between the acts the applicant had suffered by her husband and the absence of protection by the Turkish authorities for her to be recognized as a refugee. Finally, the fifth question asked whether gender-based violence can be classified as serious harm for the purposes of granting subsidiary protection under Article 15 of the Qualification Directive with reference to Articles 2 and 3 ECHR.
The German and French Governments, as well as the European Commission, all lodged written observations. What is more, Advocate General (AG) Richard de la Tour mentions in the Opinion that written observations were also submitted by the UN High Commissioner for Refugees (UNHCR), a fact which does not appear in the relevant excerpt of the judgment. 11 This divergence between the AG Opinion and the judgment on the actors that participated in the proceedings is unfortunate, to say the least. At the same time the absence of any trace of the argumentation of the intervening actors in either the judgment or the Opinion significantly curtails our ability to assess which types of arguments were accepted, and most importantly which alternative interpretations were dismissed by the Court.
The reasoning of the Court
The Grand Chamber of the Court delivered this much-awaited decision on 16 January 2024. It grouped the first three questions together as revolving around a single issue, namely whether women in a country of origin can be considered as belonging to a ‘particular social group’ as a reason for persecution for the purposes of refugee recognition under Article 10(1)(d) of the Qualification Directive, or whether they need to share an additional common characteristic to belong to a particular group. 12 In order to provide an interpretation, the Court made a preliminary point in relation to the sources of interpretation relevant in the area of asylum. Specifically, the Court confirmed the central position of the Geneva Convention in the interpretation of Qualification Directive. 13 Moreover, it recalled the relevance of UNHCR documents for the interpretation of EU law in a manner consistent with the Convention. 14
Following, the Court went on to examine whether the conditions mentioned in Article 10(1)(d) of the Directive for the assessment of whether a group can be considered a ‘particular social group’ for the purposes of refugee recognition are cumulative or not. The provision of Article 10(1)(d) of the Directive refers to two conditions: first, the members of the group must share an immutable characteristic or a characteristic that is so fundamental to their identity that they cannot be forced to renounce it; second, they must be perceived as different by the surrounding society because of this characteristic. There have historically been different positions on whether these two conditions should be treated as cumulative or as alternative. 15 In the judgment, the Court confirmed that indeed the conditions mentioned in Article 10(1)(d) of the Directive are cumulative. 16 The members of a group must share the same common identifying features (innate characteristic, common background that cannot be changed, characteristic or belief that is so fundamental to the identity or conscience that a person should not be forced to renounce it) and they must, at the same time, have a distinct identity in the country of origin because they are perceived as being different by the surrounding society. The cumulative nature of the conditions provided in Article 10(1)(d) of the Directive had already been established in the case law of the Court as regards other social groups, whereas the new Qualification Regulation has slightly modified the text of the provision to reflect this more clearly. 17 Moreover, by drawing on recital 30 of the Qualification Directive and the UNHCR Guidelines on International Protection, the Court confirmed the relevance of gender and gender-related prosecution for the purposes of interpreting the concept of ‘social group’ in Article 10(1)(d) of the Directive. 18 After making these preliminary observations, the Court went on to address the questions raised by the Administrative Court of Sofia.
. International human rights obligations guiding the interpretation of EU asylum law
While the EU operates as an autonomous legal system, in the area of EU asylum law the relevant legal framework is to a large extent inspired and interrelated to international human rights law. 19 The development of the relevant legal area but also the evolution of various concepts should take places with due regard to the international human rights obligations of the Member States. Specifically, Article 78(1) TFEU which is the legal basis for the development of CEAS provides that the development of the EU asylum system should take place in accordance with the Refugee Convention and other relevant treaties. 20 Similarly, Recital 17 of the Qualification Directive provides that in the application of the Directive, Member States are bound by obligations under international law instruments to which they are parties, particularly those that prohibit discrimination.
In relation to the specific instruments relevant for the present case the following should be noted. The CEDAW is the central international instrument pertinent to forms of discrimination and violence faced by women. The EU is not a party to this Convention, but all Member States are. The Istanbul Convention, on the other hand, was signed by the EU in 2017 and ratified in October 2023, even though it is has not been ratified by all the Member States. 21 Most importantly for the purposes of the present case, Article 60 of Istanbul Convention provides that state parties shall take measures to ensure that gender-based violence may be recognized as a form of persecution for the purposes of applying the Geneva Convention and as a form of serious harm for the purposes of granting subsidiary protection. At the same time, Bulgaria is one of the Member States that has very publicly opposed the Istanbul Convention, a fact that creates a more complicated scenario. 22 Bulgaria is not directly bound by the Istanbul Convention in its domestic law; however, indirectly, it should respect the Convention by virtue of its obligations under EU law.
Against this background the Court had to assess the relevance of CEDAW and the Istanbul Convention on the definition of gender-based violence for the purposes of the Qualification Directive. In the judgment, the Court found that both these conventions should be considered as relevant treaties for the purpose of interpretation of the Qualification Directive. The Court reminded that even though the EU is not party to CEDAW, all Member States have ratified it and are thereby bound by it. 23 The Court also mentioned as a relevant point that the Committee on the Elimination of Discrimination against Women, which monitors the implementation of CEDAW, has suggested that the Convention complements the international protection regime applicable to women and girls. 24 As for the Istanbul Convention, the Court confirmed its relevance due to its recent ratification by the EU, but also due to its subject matter and the fact that it lays down obligations coming within the scope of Article 78(2) TFEU. 25 According to the Court, the fact that certain Member States, like Bulgaria, have not ratified it does not affect the fact that the Qualification Directive should be interpreted in accordance with the Convention. 26 This important finding goes against the Opinion of the AG who instead held that these international treaties were irrelevant due to the fact that the EU had not ratified CEDAW, and that the Istanbul Convention was signed, but not ratified, at the time the Opinion was issued. 27 Instead, the AG had exclusively focused on the Refugee Convention and the Charter as relevant instruments to guide an autonomous interpretation of gender-based violence for the purposes of EU law. 28
. Women victims of domestic violence as a particular social group
The Court went on to examine whether women or women victims of domestic violence could be considered as members of a particular social group for the purpose of refugee status recognition. To contextualize this question, the reader should bear in mind that state practice has been very diverse on this matter. While some states have addressed gender on its own as a characteristic that can lead to persecution and thereby to protection of women as a particular social group, others have instead considered groups of women (for example women at risk of female genital mutilation) as a particular social group for gender-related asylum claims.
29
In order to clarify the matter for the purposes of EU asylum law and to respond to the question posed by the Bulgarian court, the Court took as a starting point Article 60 of the Istanbul Convention. According to Article 60(1), gender-based violence should be recognized as a form of persecution within the meaning of the Convention while Article 60(2) requires a gender-sensitive interpretation to the reasons of persecution provided by the Convention. Drawing on these provisions and connecting them to Article 10(1)(d) of the Qualification Directive, the Court found that being female does constitute an innate characteristic which makes women part of a particular social group.
30
The Court further suggested that women who have escaped a forced marriage may be seen as having a common background that cannot be changed.
31
As to the second condition of membership of particular social group which relates to an externally perceived distinct identity, the Court suggested that women may be perceived as being different by the society surrounding them and thus having a distinct identity ‘in particular because of social, moral or legal norms in their country of origin’.
32
This is even more so in relation to women who share an additional common characteristic, that is, having escaped marriage.
33
What is more, the Court held that the determination of a membership of a particular social group within the meaning of the Directive is independent from the acts of prosecution which members of the group might suffer from under Article 9 of the Directive.
34
Essentially, the Court held that women as a whole, but also more specific groups of women who share additional characteristics (for example women victims of domestic violence, or women who refuse forced marriages) may be regarded as belonging to a particular social group as a reason for persecution that might lead to the recognition of a refugee status.
35
This particular finding established the foundation upon which the Court based its subsequent finding in
. Persecution by non-state actors and absence of protection: A necessary link?
Moving to the next issue, which relates to persecution by non-state actors, the Court had to interpret the conditions of Article 9(3) of the Qualification Directive. Article 9(3) provides that there must be a link between the reasons why an asylum-seeker is persecuted and the acts of persecution or the absence of protection against such acts. The wording of the provision by the use of the term ‘or’ gave rise to the question of whether a link is demanded between the acts the applicant had suffered by her husband and the absence of protection by the Turkish authorities. To further unpack this, there are three different ways to read the provision of Article 9(3) with different causal links potentially demanded. First, the conditions of this article could be fulfilled if the applicant WS was prosecuted because of her gender and the domestic violence she had suffered was committed because she is a woman. Second, the conditions of this article could be fulfilled if the applicant, W, was prosecuted because of her gender, and the Turkish authorities failed to protect her because they neglect complaints submitted by women. Third, one could read the ‘or’ as creating a higher bar for causality. This line of reading would demand that WS was prosecuted because of her gender, the violence she suffered by her ex-husband was committed because she is a woman, and the failure of the Turkish authorities to protect her also related to her being a woman, meaning that she would be protected from such violence if she was a man. By reading through these alternative lines of interpretation in the first and second scenario, a causal link is demanded between the reason for persecution and the act of persecution or between the reason for persecution and the absence of protection by the state authorities. On the contrary, in the third scenario, the bar for accessing protection is set higher, as the link is demanded between three conditions, that is the reason of persecution, the act of persecution and the absence of protection.
In the
. Serious harm by non-state actors
Finally, the Court addressed the fifth question submitted by the Administrative Court of Sofia on the concept of serious harm under Article 15(a) and (b) of the Qualification Directive and whether victims of domestic violence can fall thereunder. 44 This question was only answered in the alternative, that is, if the referring Court did not find that WS qualified for refugee status. 45 Under Article 2(f) of the Qualification Directive, individuals who do not qualify for refugee protection can be eligible for subsidiary protection if there are substantial grounds to believe that they would face a real risk of suffering a serious harm under Article 15 of the Directive. As serious harm, Article 15(a) refers to execution or death penalty and Article 15(b) refers to acts of torture or inhuman or degrading treatment or punishment, but the text of the provisions makes no distinction as to whether the harm is caused by state or non-state actors. 46 The Court held that in light of the objective of protection of Article 15(a), the term ‘execution’ should be interpreted to include harm that is caused by non-state actors. 47 Similarly, when the acts of violence perpetrated by non-state actors are not likely to result to death, those acts must be classified as torture or inhuman or degrading treatment even if they are not committed by state actors. 48 On this matter, the Court found that the concept of serious harm does cover the circumstances of gender-based violence inflicted on women by non-state actors. 49 In this finding, however, the Court made no reference to Articles 2 and 3 ECHR, which were invoked by the referring Court in the relevant question in order to guide an interpretation of Article 15 of the Qualification Directive. Contrary to the Court, the AG, who took a similar position, referred to the relevant case law of the ECtHR which concerned specifically the positive obligation of states to take measures to secure the protection of the right to life under Article 2 ECHR and the prohibition of torture or other inhuman or degrading treatment under Article 3 ECHR for women victims of domestic violence. 50
Comments
The judgment in the
EU asylum law against the background of international human rights
The
Instead of an interpretation of the CEAS in light of the Geneva Convention and the Charter, as suggested by the AG, the Court placed EU asylum law in a dynamic international context shaped by more recent instruments which can bind the EU or the Member States. The Court did not approach the case in view of developing an autonomous concept of EU law on gender-based violence and it did not proceed in a reading of EU asylum law in view of perfecting an independent legal order. 60 Rather, the Court employed the Qualification Directive and the ambiguity inherent in the concept of membership of a particular social group to provide an evolutionary interpretation and to integrate in EU law protection claims which are aligned with international human rights developments. 61
This decision could be seen as another building block in the dignity-based approach followed by the Court on the CEAS case law, an approach which is cognizant of the vulnerability of refugees and aligned with the international protection obligations of the Member States. 62 This approach is, of course, not without limits. Various scholars have expressed valid critiques on the failure of EU asylum law to uphold fundamental rights and its focus towards institutional cooperation and informalization. 63 Scholars have also suggested that the Court has followed more formalist interpretations in this area, especially after the migration crisis. 64 While such criticisms have merit, the case under analysis brought about the development of EU asylum law with due regard to the pluralism of sources that characterizes international protection. On this topic, it is important to remind oneself that the Court has consistently drawn on the UNHCR soft law as relevant for the interpretation of various concepts in EU asylum law. 65 Finally, the finding of the Court as regards violent acts caused by non-state actors and their implications for international protection is aligned with the established case law of the ECtHR on the matter, which has found that there exist positive obligations of state parties under Articles 2 and 3 ECHR to protect women victims of domestic violence. 66
The shadow of international human rights in EU law
In this final section, two contentious points raised by the
On the first point of criticism, when reading the judgment, the utter absence of ECtHR case law from the justification of the Court is striking. In this regard it should be reminded that fundamental rights protection in EU law has historically developed with due regard to the obligations of Member States under the ECHR. 67 Today reference to the ECHR is made in Article 6(3) TEU, the Charter of Fundamental Rights includes a ‘homogeneity’ clause in Article 52(3) which demands that Charter rights which correspond to rights protected by the ECHR shall have the same meaning and scope, while Article 53 mentions that nothing in the Charter shall be construed as limiting the rights protected by, among others, the ECHR. 68 No Charter rights were of relevance in the specific case; however, the Administrative Court of Sofia did invoke ECHR rights as relevant for the interpretation of serious harm in the Qualification Directive. The finding of the Court in this matter was aligned in substance with the case law of the ECtHR. However, the Court evaded any mention to the relevant cases or to the ECHR in general. One might attempt to trace the potential influence of the ECtHR case law by reading the AG Opinion which analysed the relevant decisions both in relation to victims of domestic violence in Türkiye, but also in relation to the positive obligation of state authorities to protect victims of domestic violence from exposure to risk of persecution from non-state actors. 69 Even if the AG Opinion influenced the finding of the Court, there is no transparency on the matter, as the Court did not refer to the paragraphs of the AG Opinion, which present and analyse the relevant case law. Such a ‘hiding’ of the relevant ECtHR case law would arguably be understandable if the Court ruled differently and presented the finding as a resulting from EU law autonomy. However, in a judgment which acknowledges the pluralist landscape of international human rights protection, and which is aligned with international case law on victims of domestic violence on a substantive level, the hiding of this cross-fertilization with the ECtHR cannot be easily explained. This is especially so since this cross-fertilization is demanded in primary law both as regards the specific convention and its interaction with human rights standards in EU law and in general, as a potentially relevant treaty in the CEAS.
The second and last point of criticism does not pertain to the reasoning followed by the Court, but rather to the protection of victims of domestic violence by virtue of international human rights commitments, as they appear in the case law. Specifically, a fragmentation appears in the way in which the Court is dealing with international human rights commitments and gender-sensitive interpretation in other fields of EU law and specifically in cases related to citizenship and migration. On this matter, it should be noted that Articles 59–61 of the Istanbul Convention provide obligations relating to the grant of autonomous residence permits to victims of domestic violence as well as the grand of subsidiary protection and the application of a gender-sensitive interpretation to the Geneva Convention. These demands of the Istanbul Convention attracted attention for having the potential to generate change as regards migrant women victims of domestic violence and their claims to residence rights. 70 However, this potential is up against the limitations of EU migration law, which will be discussed in turn and which relate to the requirements for acquiring an autonomous residence permit as a migrant victim of domestic violence.
Already, before the adoption of the Istanbul Convention, both the Citizens’ Rights Directive and the Family Reunification Directive provided for the grant of autonomous residence permits for family members victims of domestic violence of EU and non-EU migrants respectively.
71
The reason for introducing both these provisions was to protect migrant women victims of domestic violence, who should not be threatened with losing their residence permit when trying to escape a vulnerable situation at home.
72
The Citizens’ Rights Directive provides that the residence permit can only be provided if the family member victim of domestic violence has sufficient resources and sickness insurance, while the Family Reunification Directive provides that the conditions for attribution of the relevant residence permit should be provided in accordance with national law. After a first conservative ruling in
Relating the gender insensitive outcome of the Court in
Conclusion
Overall, the decision in
In
Finally, taking the international human rights commitments of the EU and the Member States towards victims of domestic violence seriously will require more effort across various EU policy areas in the future. The demands of the Istanbul Convention should affect the interpretation of the Court in the areas of EU citizenship and migration in order to move away from a fragmented approach towards human rights obligations under EU law. Past judgments have failed to consider gender-sensitive readings of EU secondary law and the current framework risks entrenching the vulnerability migrant women in abusive relationships. 78 Despite this, the judgment is a first step towards the integration of international human rights commitments to victims of domestic violence in the case law. The extent to which this gender-sensitive approach will continue to guide the Court – also beyond EU asylum law – remains to be seen.
Footnotes
ORCID iD
