Case C‑621/21
WS
v
Intervyuirasht organ na Darzhavna agentsia za bezhantsite pri Ministerskia savet
(Request for a preliminary ruling from the Administrativen sad Sofia-grad)
Judgment of the Court (Grand Chamber) of 16 January 2024
(Reference for a preliminary ruling – Area of freedom, security and justice – Common asylum policy – Directive 2011/95/EU – Qualification for refugee status – Article 2(d) – Reasons for persecution – ‘Membership of a particular social group’ – Article 10(1)(d) – Acts of persecution – Article 9(1) and (2) – Link between the reasons for and acts of persecution or between the reasons for persecution and the absence of protection against such acts – Article 9(3) – Non-State actors – Article 6(c) – Qualification for subsidiary protection – Article 2(f) – ‘Serious harm’ – Article 15(a) and (b) – Assessment of applications for international protection for the purpose of granting refugee status or subsidiary protection status – Article 4 – Gender-based violence against women – Domestic violence – Threat of ‘honour killing’)
1. Border controls, asylum and immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2011/95 – Qualification for refugee status – Risk of persecution – Reasons for persecution – Assessment – Concept of membership of a particular social group – Women as a whole from the same country of origin or more restricted groups of women who share an additional common characteristic, depending on the circumstances in that country – Included
(Art. 78(1) and (2) TFEU; European Parliament and Council Directive 2011/95, Arts 2(d), 4(3) and (4), and 10(1)(d))
(see paragraphs 37, 38, 44, 46, 47, 49-62, operative part 1)
2. Border controls, asylum and immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2011/95 – Qualification for refugee status – Applicant’s fear of being persecuted in his or her country of origin by non-State actors – No requirement for a link between the reasons for persecution and the acts of persecution – Conditions – Establishment of a link between a reason for persecution and the absence of protection against acts of persecution by the actors of protection
(European Parliament and Council Directive 2011/95, Arts 6(c), 7(1), 9(1) to (3) and 10(1))
(see paragraphs 64-67, 70, operative part 2)
3. Border controls, asylum and immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2011/95 – Qualification for subsidiary protection – Serious harm – Concept – Real threat to the applicant of being killed or subjected to acts of violence inflicted by a member of his or her family or community due to the transgression of alleged cultural, religious or traditional norms – Included
(European Parliament and Council Directive 2011/95, Arts 2(g), 15(a) and (b) and 18)
(see paragraphs 75-80, operative part 3)
Résumé
Ruling on a request for a preliminary ruling, the Court, sitting as the Grand Chamber, has provided clarification on one of the reasons for persecution capable of leading to the recognition of refugee status, namely ‘membership of a particular social group’, (1) where the applicant for international protection is a woman who claims a fear, if she were to return to her country of origin, of being killed or subjected to acts of violence inflicted by a member of her family or community due to the alleged transgression of cultural, religious or traditional norms.
WS is a Turkish national of Kurdish origin. She arrived legally in Bulgaria in June 2018 and thereafter joined a family member in Germany, where she lodged an application for international protection. Following a request from the German authorities, WS was taken back by the Bulgarian authorities for the purpose of examining her application for international protection, pursuant to a decision adopted in February 2019 by the National Agency for Refugees (2) (‘the DAB’).
During interviews conducted in October 2019, WS stated that she had been forcibly married at the age of sixteen and subjected to domestic violence. WS fled the marital home in September 2016. In 2017, she entered into a religious marriage and, in May 2018, had a son from that marriage. After she left Türkiye, she officially divorced her first husband in September 2018, despite his objections. She states that, for those reasons, she fears that his family would kill her if she were to return to Türkiye.
By a decision adopted in May 2020, the President of the DAB rejected WS’s application for international protection, taking the view, first, that the conditions for granting refugee status had not been satisfied. The reasons relied on by WS, in particular the acts of domestic violence or death threats made against her were not relevant because they could not be linked to any of the reasons for persecution set out in the Law on Asylum and Refugees, which transposes Directive 2011/95 into Bulgarian law. Furthermore, WS did not claim to have been persecuted based on her gender.
Second, WS was refused subsidiary protection status. It was considered that she did not satisfy the conditions required for that purpose since, in the first place, neither the official authorities nor certain non-State entities had taken action against her that the State is not in a position to control. In the second place, WS had not informed the police that she had been subject to criminal assaults, had not lodged a complaint and had left Türkiye legally.
The action brought by WS against that decision was dismissed.
In April 2021, based on new evidence, WS made a subsequent application for international protection, claiming a well-founded fear of persecution on account of her membership of a particular social group, namely women who are victims of domestic violence and women who are potential victims of honour killings, by non-State actors against whom the Turkish State is not able to defend her. Objecting to her being sent back to Türkiye, she states that she fears being the victim of an honour killing or being forced to marry again.
In May 2021, the DAB refused to reopen the procedure for granting international protection, taking the view, inter alia, that WS had not submitted any significant new evidence relating to her personal situation or her country of origin.
Hearing an appeal against that decision, the referring court decided to seek a ruling from the Court on the interpretation of Directive 2011/95, inviting it to clarify the substantive preconditions governing the grant of international protection and the type of international protection to be granted in such circumstances.
Findings of the Court
First, the Court examines whether, under Directive 2011/95, depending on the circumstances in the country of origin, women in that country may be regarded, as a whole, as belonging to ‘a particular social group’ as a ‘reason for persecution’ capable of leading to the recognition of refugee status, or whether the women concerned must share an additional common characteristic in order to be regarded as belonging to such a group.
In that regard, the Court states, first of all, that the Istanbul Convention (3) lays down obligations coming within the scope of Article 78(2) TFEU, which empowers the EU legislature to adopt measures relating to a common European asylum system, such as Directive 2011/95. Thus, that convention, in so far as it relates to asylum and non-refoulement, is one of the treaties in the light of which that directive is to be interpreted, (4) even though some Member States, including the Republic of Bulgaria, have not ratified it.
Next, the Court points out that it is apparent from Article 10(1)(d) of Directive 2011/95 that a group is to be considered a ‘particular social group’ where two cumulative conditions are satisfied. In the first place, the members of the relevant group must share at least one of the three identifying features referred to by that provision. (5) In the second place, that group must have a ‘distinct identity’ in the country of origin.
As regards the first condition for identifying a ‘particular social group’, the Court states that the fact of being female constitutes an innate characteristic and therefore suffices to satisfy that condition. That does not rule out the possibility that women who share an additional common feature such as, for example, a common background that cannot be changed, (6) may also belong to that category for the purposes of that provision.
As regards the second condition for identifying a ‘particular social group’, the Court states that women, whether or not they share an additional common characteristic, may be perceived as being different by the surrounding society and recognised as having their own identity in that society, in particular because of social, moral or legal norms in their country of origin.
Lastly, the Court states that membership of a ‘particular social group’ is to be established independently of the acts of persecution (7) of which the members of that group may be victims in the country of origin. Nevertheless, discrimination or persecution suffered by persons sharing a common characteristic may constitute a relevant factor where, in order to ascertain whether the second condition for identifying a social group is satisfied, it is necessary to assess whether the group in question appears to be distinct in the light of the social, moral or legal norms of the country of origin in question.
Consequently, women, as a whole, may be regarded as belonging to a ‘particular social group’, within the meaning of Article 10(1)(d) of Directive 2011/95, where it is established that, depending on the circumstances in their country of origin, they are, on account of their gender, exposed to physical or mental violence, including sexual violence and domestic violence. Furthermore, more restricted groups of women who share an additional common characteristic (8) may be regarded as belonging to a social group with a distinct identity in their country of origin if, on account of that characteristic, they are stigmatised and exposed to the disapproval of their surrounding society resulting in their social exclusion or acts of violence.
Second, the Court examines whether, where an applicant claims a fear of being persecuted in his or her country of origin by non-State actors, Directive 2011/95 requires a link to be established between the acts of persecution and at least one of the reasons for persecution referred to in Article 10(1) of Directive 2011/95. It states that, under Article 9(3) of that directive, read in conjunction with other provisions, (9) recognition of refugee status presupposes that a link be established between, on the one hand, the aforementioned reasons for persecution and, on the other, either the acts of persecution (10) or the absence of protection, by the ‘actors of protection’, (11) against acts of persecution perpetrated by ‘non-State actors’. Thus, in the case of an act of persecution perpetrated by a non-State actor, the condition laid down in Article 9(3), referred to above, (12) is satisfied where that act is based on one of the reasons for persecution mentioned in Article 10(1) of that directive, even if the absence of protection is not based on those reasons. That condition must also be regarded as being satisfied where the absence of protection is based on one of the reasons for persecution set out in the latter provision, even if the act of persecution perpetrated by a non-State actor is not based on those reasons. Consequently, where an applicant claims a fear of being persecuted in his or her country of origin by non-State actors, it is not necessary to establish a link between one of the reasons for persecution referred to in Article 10(1) of Directive 2011/95 and acts of persecution, if such a link can be established between one of those reasons for persecution and the absence of protection from those acts by the actors of protection. (13)
Third, the Court holds that the concept of serious harm, (14) capable of leading to the recognition of subsidiary protection status, (15) covers the real threat to the applicant of being killed or subjected to acts of violence inflicted by a member of his or her family or community due to the alleged transgression of cultural, religious or traditional norms. To reach that conclusion, it states that Article 15(a) and (b) of Directive 2011/15 (16) defines ‘serious harm’ as ‘the death penalty or execution’ or ‘torture or inhuman or degrading treatment or punishment of an applicant in the country of origin’. In view of the objective of Article 15(a) of Directive 2011/95 of ensuring protection for persons whose right to life would be threatened if they were to return to their country of origin, the term ‘execution’ in that provision cannot be interpreted as excluding harm to a person’s life solely on the ground that it is caused by non-State actors. Thus, where a woman runs a real risk of being killed or subjected to acts of violence inflicted by a member of her family or community because of the alleged transgression of cultural, religious or traditional norms, such serious harm must be classified as ‘execution’ within the meaning of that provision.