The Court of Justice of the European Union (CJEU) has ruled that member states can limit themselves to taking into account the gender and nationality of Afghan women when granting them asylum in the EU due to discriminatory measures against them by the Taliban regime. constitute acts of persecution.
The court, based in Luxembourg, thus responded to a preliminary ruling concerning the case of two women of Afghan nationality who appealed to the Supreme Administrative Court of Austria against the refusal of the authorities of this country to recognize their refugee status. The plaintiffs alleged that the situation of women in the new Afghan Taliban regime justifies, by itself, the granting of said status.
According to the Austrian court, the return to power of the aforementioned regime in 2021 has serious consequences for the fundamental rights of women. And he cites the fact that they are deprived of any legal protection against gender violence, domestic violence and forced marriage; They are obliged to completely cover their bodies and faces; their access to health care and their freedom of movement are restricted; They are prohibited from carrying out professional activities, their access to education is limited and they are excluded from participation in political life.
For this reason, the Austrian court considers that women of Afghan nationality belong to the definition of “a certain social group” envisaged in the European directive on the standards that third-country nationals or stateless persons must respect to benefit from a international protection. And she asks European justice, on the one hand, whether the discriminatory measures against Afghan women, observed as a whole, can be considered as acts of persecution which justify recognition of refugee status.
On the other hand, if the competent national authority, when assessing individual asylum applications of women of Afghan nationality, is obliged to take into consideration other data beyond your nationality and gender. First of all, the Court of Justice responds that some of the measures in question must be considered in themselves as “acts of persecution”, because they constitute a serious violation of a fundamental right, as is the case of forced marriage, which amounts to a form of slavery, and with the lack of protection against gender-based violence and domestic violence, which constitute forms of inhuman and degrading treatment.
Even assuming that the other measures, observed in isolation, do not constitute a sufficiently serious violation of a fundamental right to be considered “acts of persecution”, the court understands that, observed together, the said measures constitute acts of this nature . Due to his cumulative effect and its deliberate and systematic applicationlead to a flagrant denial of fundamental rights linked to human dignity, adds the Court.
Secondly, with regard to the individual examination of asylum applications of women of Afghan nationality, indicates that the competent authorities of the Member States may consider that it is not necessary to prove that the applicants are at real risk and in particular to be subjected to acts of persecution if they return to their country of origin. Just take your nationality and gender into consideration.
And he bases his answer in this case on the situation of women in the current Taliban regimeas noted, among others, in the reports of the European Union Agency for Asylum (EAUA) and the Office of the United Nations High Commissioner for Refugees (UNHCR)
