Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 9 November 2023 (1)
Joined Cases C‑608/22 and C‑609/22
AH (C‑608/22) and
FN (C‑609/22)
intervener:
Bundesamt für Fremdenwesen und Asyl
(Requests for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))
(Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2011/95/EU – Standards for the granting of international protection and for the content of the protection granted – Article 9(1)(b) – Concept of ‘acts of persecution’ – Accumulation of discriminatory acts and measures adopted against women and girls – Methods of assessing the required level of severity – Article 4(3) – Individual assessment of the application – Taking account of gender, excluding other factors particular to the applicant’s personal circumstances – Discretion of the Member States)
I. Introduction
1. Since the return of the Taliban regime in Afghanistan, the situation of women and girls in that country has deteriorated rapidly, to the point that their very identity can be said to be denied. To escape this intolerable situation, Afghan women and girls are fleeing their country or refusing to return there and are seeking asylum, particularly in the European Union. Faced with this situation, Member State authorities are uncertain whether to grant refugee status to those women and girls solely on account of their gender, or to identify whether an individual risk of persecution exists.
2. The present case will enable the Court of Justice to clarify the situation.
3. More specifically, by these references for a preliminary ruling, the Court is asked to specify the methods of assessing the existence of a well-founded fear of an ‘act of persecution’ within the meaning of Article 9 of Directive 2011/95/EU (2) when the application for international protection is lodged by a woman on the ground that, if she returns to her country of origin, she could be exposed to an accumulation of discriminatory acts and measures preventing her from exercising her civil, political, economic, social and cultural rights in full.
4. In particular, the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) asks the Court whether acts such as those adopted by the Taliban regime since 15 August 2021, which restrict access by women and girls to education, gainful employment and healthcare, which limit their participation in public and political life, their freedom of movement and their right to take part in sports, and which require them, moreover, to cover their entire bodies and faces and deprive them of protection against gender-based and domestic violence, could be regarded, given their cumulative effect and intensity, as an ‘act of persecution’ within the meaning of Article 9(1)(b) of Directive 2011/95. In this context, the Court is asked to expand on the principles previously established in the judgments of 5 September 2012, Y and Z, (3) and of 7 November 2013, X and Others, (4) regarding the interpretation of the concept of ‘acts of persecution’ within the meaning of Article 9(1)(a) of Directive 2004/83/EC, (5) which was repealed and replaced by Directive 2011/95. In both directives, Article 9 is worded almost identically.
5. In addition, the referring court asks the Court whether, when examining the applicant’s individual status and personal circumstances, required for the individual assessment of the application for international protection, the competent authority can conclude that there is a well-founded fear of being subjected to such an act of persecution on account of her gender, without having to look for other factors particular to her personal circumstances.
6. There is a specific context to the second question, relating to the scope of the individual assessment required by the EU legislature in Article 4(3) of Directive 2011/95. Some Member States, such as the Kingdom of Sweden, (6) the Kingdom of Denmark (7) and the Republic of Finland, (8) have decided to grant refugee status to Afghan women almost automatically, solely on account of their gender, these Member States being similar to those that, from August 2021, were considering implementing the temporary protection scheme established by Directive 2001/55/EC. (9) For its part, the European Union Agency for Asylum (EUAA) concludes, in its latest information report on Afghanistan (2023), that a well-founded fear of persecution will generally be determined for Afghan women and girls in view of the measures adopted by the Taliban regime. (10) The Office of the United Nations High Commissioner for Refugees (UNHCR) also points out, in a statement issued in the context of these references for a preliminary ruling, that there is a presumption of recognition of refugee status for Afghan women and girls. (11)
7. In this Opinion, I will set out the reasons why I regard the measures described by the referring court as amounting to an ‘act of persecution’ within the meaning of Article 9(1)(b) of Directive 2011/95. I will explain how the severe, systematic and institutionalised discrimination against Afghan women and girls deprives them of their most essential rights in society and undermines full respect for human dignity, as enshrined in Article 2 TEU and Article 1 of the Charter of Fundamental Rights of the European Union. (12)
8. I will also explain why, in my view, there is nothing to prevent the competent authority from concluding that there is a well-founded fear of persecution solely on account of the applicant’s gender, without having to look for other factors particular to her personal circumstances.
II. Legal framework
A. ECHR
9. Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, (13) entitled ‘Derogation in time of emergency’, provides in paragraphs 1 and 2:
‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2 [“Right to life”], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [“Prohibition of torture”], 4 (paragraph 1) [“Prohibition of slavery”] and 7 [“No punishment without law”] shall be made under this provision.’
B. Directive 2011/95
10. Recital 14 of Directive 2011/95 states:
‘Member States should have the power to introduce or maintain more favourable provisions than the standards laid down in this Directive for third-country nationals or stateless persons who request international protection from a Member State, where such a request is understood to be on the grounds that the person concerned is either a refugee within the meaning of Article 1(A) of the Geneva Convention [relating to the status of refugees, (14) as supplemented by the Protocol relating to the Status of Refugees (15) (‘the Geneva Convention’)], or a person eligible for subsidiary protection.’
11. Article 2(d) of that directive provides:
‘For the purposes of this Directive the following definitions shall apply:
…
(d) “refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply’.
12. Article 3 of that directive, entitled ‘More favourable standards’, provides:
‘Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.’
13. Article 4 of Directive 2011/95, entitled ‘Assessment of facts and circumstances’, is worded as follows:
‘1. Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.
2. The elements referred to in paragraph 1 consist of the applicant’s statements and all the documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, travel documents and the reasons for applying for international protection.
3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;
(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;
(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;
…’
14. Article 9 of that directive, entitled ‘Acts of persecution’, provides in paragraphs 1 and 2:
‘1. In order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must:
(a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) … [ECHR]; or
(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).
2. Acts of persecution as qualified in paragraph 1 can, inter alia, take the form of:
(a) acts of physical or mental violence, including acts of sexual violence;
(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;
(c) prosecution or punishment which is disproportionate or discriminatory;
…
(f) acts of a gender-specific or child-specific nature.’
III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling
15. The applicant in the main proceedings in Case C‑608/22, AH, is an Afghan national born in 1995. After entering Austria on 31 August 2015, she applied for international protection in that Member State. In support of her claim, she stated, inter alia, that she had fled a forced marriage planned by her father. The applicant, then about 14 years old, fled with her mother to Iran, where she lived with her two sisters until 2015. She lodged her application in Austria because her husband, whom she married during a trip to Greece, was already living there.
16. The applicant in the main proceedings in Case C‑609/22, FN, is also an Afghan national born in 2007. She applied for international protection in Austria in 2020. She has never lived in Afghanistan. Latterly, she lived with her mother and two sisters in Iran, a country she fled on the ground that her family members did not have a residence permit and were not allowed to work, while she herself could not receive an education. She said that if she returned to Afghanistan, as a woman, she would be at risk of abduction, would be unable to attend school and might be unable to support herself without her family there. FN also claimed, in support of her application, that she wanted to be free and have the same rights as men.
17. The Bundesamt für Fremdenwesen und Asyl (Federal Office for Immigration and Asylum, Austria) decided that the arguments put forward by AH regarding her reason for fleeing were implausible, and that FN did not face a real risk of persecution in Afghanistan, based on the reports available at the time of the decision (October 2020). In both cases, therefore, that authority refused to grant refugee status within the meaning of Article 2(e) of Directive 2011/95. However, it granted AH and FN subsidiary protection on the ground that, in the absence of a social network in Afghanistan, they would face economic and social difficulties if they returned.
18. AH and FN each appealed against the decisions refusing to grant them refugee status before the Bundesverwaltungsgericht (Federal Administrative Court, Austria). They argued, inter alia, that, after the Taliban regime seized power in the summer of 2021, the situation in Afghanistan had changed in such a way that women now faced widespread persecution. FN considers that the mere fact of being an Afghan woman should lead to the granting of refugee status, as the Verwaltungsgerichtshof (Supreme Administrative Court) recognised in its case-law dating from the time of the previous Taliban takeover.
19. The Bundesverwaltungsgericht (Federal Administrative Court) dismissed both appeals as unfounded, finding, inter alia, that, in view of the appellants’ way of life in Austria, they had not adopted a ‘Western lifestyle’ that had become such an essential part of their identity at that time that it was impossible for them to renounce it in order to escape the threat of persecution in their country of origin.
20. AH and FN each brought an appeal on a point of law before the Verwaltungsgerichtshof (Supreme Administrative Court), again arguing that the situation of women under the new Taliban regime alone qualified them for refugee status.
21. In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the main proceedings and to refer the following questions to the Court of Justice for a preliminary ruling, identical in both cases:
‘(1) Is the accumulation of measures taken, supported or tolerated in a State by a de facto government actor and consisting, in particular, of the fact that women
– are denied participation in political office and political decision-making processes,
– are provided with no legal means to be able to obtain protection from gender-based and domestic violence,
– are generally at risk of forced marriages; even though they have been prohibited by the de facto government actor, women are not afforded effective protection against forced marriages and such marriages are sometimes performed with the participation of de facto government actors in the knowledge that it is a forced marriage,
– are not allowed to engage in gainful employment or are allowed to do so only to a limited extent, mainly at home,
– have difficulties in accessing health facilities,
– are fully or largely denied access to education (for example by allowing girls only a primary school education),
– are not allowed to be or move about in public without being accompanied by a man (who must be of a certain family relationship) or, at most, are permitted to do so only a certain distance from home,
– must completely cover their bodies and veil their faces in public,
– may not take part in any sports,
as referred to in Article 9(1)(b) of Directive [2011/95], to be regarded as sufficiently severe as to affect a woman in a similar manner as described in Article 9(1)(a) of that directive?
(2) Is it sufficient, for the granting of asylum status, that a woman is affected by those measures in the country of origin merely on the basis of her gender, or is it necessary to assess a woman’s individual situation in order to determine whether she is affected by those measures – to be considered in their entirety – within the meaning of Article 9(1)(b) of Directive [2011/95]?’
22. By decision of the President of the Court of 13 October 2022, these cases were joined for the purposes of the written and oral parts of the procedure and the decision of the Court.
23. Written observations have been lodged by the applicants, by the Austrian, Belgian, Spanish and French Governments and by the European Commission.
IV. Analysis
24. In accordance with Article 2(d) of Directive 2011/95, recognition of refugee status implies that the third-country national concerned faces a well-founded fear of being persecuted in his or her country of origin, due to his or her race, religion, nationality, political opinions or membership of a certain social group.
25. To grant refugee status, the competent authority must therefore conclude that there is persecution or a risk of persecution in respect of the person concerned.
26. It follows from Articles 9 and 10 of Directive 2011/95, read together, that the concept of ‘persecution’ comprises two elements.
27. The first is the material element, or the ‘act of persecution’ defined in Article 9 of that directive. This is the crucial element since it is the basis of the person’s fear and explains his or her inability or refusal to claim the protection of his or her country of origin. By its first question, the referring court thus seeks to determine whether the discriminatory measures adopted by the Taliban regime against women and girls attain the level of severity required by Article 9 of Directive 2011/95 in order to qualify as ‘acts of persecution’. The second is the mental element, that is to say the reason, referred to in Article 10 of that directive, why the act or the series of acts are committed or the series of measures is applied. The latter element is not at issue in these cases.
28. In addition, the competent authority must consider, on the basis of an assessment of the facts and circumstances surrounding the request for international protection required by Article 4 of Directive 2011/95, whether the applicant’s fear of being persecuted, once back in his or her country of origin, is well founded. By its second question, the referring court asks whether, in the light of Article 4(3) of that directive, an Afghan woman can qualify for international protection without an individual assessment of her situation, given the fact that some women may not reject, or may even approve of, the measures adopted or tolerated by the Taliban, which therefore might not affect the actual situation of those women.
A. The scope of the concept of ‘acts of persecution’ within the meaning of Article 9(1)(b) of Directive 2011/95 (first question)
29. By its first question, the referring court asks the Court of Justice, in essence, whether Article 9(1)(b) of Directive 2011/95 must be interpreted as meaning that discriminatory acts and measures imposing severe restrictions on women and girls in terms of their freedom of movement, their participation in public and political life, their access to education and healthcare, and their ability to engage in gainful employment and take part in sports, depriving them, moreover, of protection against gender-based and domestic violence and imposing a dress code on them that covers their entire body and face, constitute an ‘act of persecution’.
1. Preliminary observations
30. In their observations, AH, the Belgian Government and the Commission express doubts as to the scope of that question.
31. First, the Commission and the Belgian Government point out that it is not for the Court to rule, in abstracto, on whether the accumulation of the measures described by the referring court constitutes an ‘act of persecution’ within the meaning of Article 9(1)(b) of Directive 2011/95. It is true that, pursuant to Article 4 of that directive and Article 10(3) of Directive 2013/32/EU, (16) that assessment is the sole responsibility of the competent authority, which must assess the applicant’s need for international protection after an appropriate, complete and up-to-date review.
32. However, in my view, that is not how the first question referred for a preliminary ruling is framed. The referring court simply wants to know how to assess the severity of the measures resulting from their cumulative effect, in comparison with the level of severity required by Article 9(1)(a) of Directive 2011/95. As evidenced by the use of the phrase ‘in particular’ in the formulation of that question, the referring court did not intend to list all the measures that Afghan women could be exposed to if they returned to their country of origin. The extent of those measures is steadily increasing, as illustrated by the latest EUAA information report on Afghanistan (2023), (17) as well as the recent decree adopted by the Taliban regime ordering the closure of beauty salons, the only ‘public’ place where women were still allowed to gather. The referring court is aware that, although those measures, taken in isolation, must be condemned, they do not constitute an infringement of an unconditional right as provided for in Article 15(2) ECHR and from which there can be no derogation, and that, taken as a whole, they cannot be regarded as attaining the level of severity required under Article 9(1)(a) of that directive.
33. Second, AH submits, in her observations, that it is not necessary to examine the discriminatory measures described by the referring court in the light of Article 9(1)(b) of Directive 2011/95, since Afghan women and girls are also exposed to acts that severely affect their basic human rights within the meaning of Article 9(1)(a) of that directive. It is clear that the acts of gender-based and domestic violence that those women risk being subjected to if they return to their country of origin may, by their nature or repetition, constitute a ‘severe violation of basic human rights’ and therefore an act of persecution within the meaning of that provision. (18)
34. There is also little doubt that the prosecution and sanctions that Afghan women face when they do not comply with the restrictions imposed on them could, in themselves, constitute an act of persecution within the meaning of Article 9(1)(a), in so far as they could result in serious and intolerable attacks on the person.
35. I would point out, however, that the questions referred for a preliminary ruling concern the classification of discriminatory measures adopted against Afghan women and girls under Article 9(1)(b) of Directive 2011/95. In addition, the competent authority is required to carry out a full classification of the acts of persecution or serious harm that the applicant could be subjected to if she is returned to her country of origin.
36. First, it follows from the requirements laid down in Article 4 of Directive 2011/95 that the competent national authority is required to carry out an appropriate and effective examination of the application for international protection in order to ensure a comprehensive assessment of the needs for protection of the person concerned. In the judgment in Y and Z, the Court ruled that ‘where, in accordance with Article 4(3) of the Directive, the competent authorities carry out an assessment of an application for international protection on an individual basis, they are required to take account of all the acts to which the applicant has been, or risks being, exposed, in order to determine whether, in the light of the applicant’s personal circumstances, those acts may be regarded as constituting persecution within the meaning of Article 9(1) of the Directive’. (19)
37. Second, that is to avoid the delicate situations in which the person concerned would be regarded, pursuant to Article 11(1)(e) of Directive 2011/95, as ceasing to be a person eligible for refugee status because of a change in circumstances in his or her country of origin and would therefore have his or her status withdrawn prematurely following an inadequate classification of the risks.
38. In those circumstances, while it is clear that some of the discriminatory measures at issue blatantly constitute an act of persecution within the meaning of Article 9(1)(a) of Directive 2011/95, it is for the competent national authority to establish, following its risk assessment, the extent to which the applicants could also be subject to acts of persecution under Article 9(1)(b) thereof. (20)
2. Substance
39. Article 9 of Directive 2011/95 sets out the elements on the basis of which an act may be regarded as persecution within the meaning of Article 1(A) of the Geneva Convention. (21)
40. Article 9(1) of that directive concerns the requirements relating to the nature and severity of the act, while Article 9(2) gives examples of the forms that an act of persecution may take.
41. In the present cases, there is no doubt that the measures described by the referring court are on that list, since the interpretation of Article 9(2) of Directive 2011/95 is not at issue here. Indeed, the EU legislature does not intend to limit acts of persecution to acts of physical violence, but intends, through a sufficiently open and adaptable text, to reflect the extremely varied and continually evolving forms of persecution. (22) Thus, in accordance with Article 9(2)(b), (c) and (f) of that directive, acts of persecution can, ‘inter alia’, take the form of ‘legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner’, ‘prosecution or punishment which is disproportionate or discriminatory’ and ‘acts of a gender-specific or child-specific nature’.
42. But are those measures likely to attain the level of severity required by Article 9(1) of Directive 2011/95?
43. That article makes a distinction according to whether the act in question violates basic human rights (Article 9(1)(a)) or other human rights (Article 9(1)(b)).
44. First, with regard to Article 9(1)(a) of Directive 2011/95, it states that the relevant acts must be ‘sufficiently serious’ by their nature or repetition ‘as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) … [ECHR]’. (23)
45. An act that might not be sufficiently serious, by its nature, as to constitute a severe violation of basic human rights may, by its repetition, attain that degree of severity and constitute such a violation.
46. The rights referred to in Article 15(2) ECHR are the so-called ‘absolute’ or ‘inalienable’ rights of any individual. No limitation can be provided for, even in cases of exceptional public danger ‘threatening the life of the nation’. That is the right to life, the right not to be subjected to torture or to inhuman or degrading treatment, the right not to be reduced to slavery or servitude and the right not to be arbitrarily arrested or detained. (24) The Council had already defined the concept of ‘persecution’ in its Joint Position 96/196/JHA (25) as acts that constitute a basic attack on human rights, for example life, freedom or physical integrity, or that manifestly preclude the person who has suffered them from continuing to live in his or her country of origin. (26) In accordance with Article 9(1)(a) of Directive 2011/95, the act of persecution must therefore constitute a serious and intolerable attack on the person, and in particular on his or her most basic rights.
47. However, as the Court noted, that article refers to Article 15(2) ECHR ‘by way of guidance’, for the purpose of determining which acts must in particular be regarded as constituting persecution. (27) It follows that, when the applicant bases his or her application for international protection on a violation of an unconditional right referred to in that provision, the existence of persecution is established automatically, since the violation is motivated by race, religion, nationality, political views or membership of a particular social group.
48. On the other hand, where the applicant bases his or her application on interference with a basic right that is not an unconditional right, the Court holds that such interference does not in itself oblige the competent authority to grant him or her refugee status. (28) The Court considers that that interference must be ‘sufficiently serious’ (29) and have ‘a significant effect on the person concerned’. (30) According to the Court, it is necessary therefore to examine whether such interference amounts to a legitimate limitation on the exercise of the basic right in question, in which case it cannot be regarded as an ‘act of persecution’. (31) It is also necessary to determine the extent to which such interference amounts to a violation that is sufficiently serious to be regarded as similar or equivalent to a violation of the unconditional rights referred to in Article 15(2) ECHR. (32) In that context, the Court considers it necessary to look beyond the ‘nomenclature’ of the right or freedom at issue to take into account not only the intrinsic severity of the act or measure and its consequences for the person affected, but also the nature and severity of the repression inflicted on the individual. (33) In the judgments in Y and Z and in the judgment in Fathi of 4 October 2018, (34) the Court thus held that the applicant was exposed to an act of persecution where, as a result of exercising his freedom of religion in his country of origin, he ran a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2011/95. (35)
49. Second, as regards Article 9(1)(b) of Directive 2011/95, which the referring court refers to, this states that an act of persecution may also be an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a manner similar to that referred to in Article 9(1)(a) of that directive.
50. The EU legislature is referring to acts or measures, including human rights abuses, that, taken in isolation, do not constitute a violation of the applicant’s basic rights. As the wording of that provision implies, such acts or measures can only amount to persecution where, by reason of their ‘accumulation’, they affect the applicant in a similar manner to a severe violation of a basic human right within the meaning of Article 9(1)(a) of that directive. (36)
51. The latter aspect is decisive, since it must allow the concept of ‘acts of persecution’ to be distinguished from any other discriminatory measure. In fact, the goal of the Common European Asylum System is not to grant protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the Charter or the ECHR in his or her country of origin, but to restrict the recognition of refugee status to individuals who may be exposed to a serious denial or systemic infringement of their most fundamental rights, and whose life in that country has therefore become intolerable.
52. To determine whether a material act of persecution exists, it is necessary therefore to examine the extent to which the restrictions or discrimination suffered by the applicant in exercising his or her rights, including a basic right, have, by reason of their cumulative effect, serious consequences for the applicant in his or her country of origin, attaining a level of severity equivalent to a severe violation of one of his or her basic rights. (37) Within the framework of the Geneva Convention, UNHCR emphasises that it is not possible to establish a general rule as to the cumulative reasons that may give rise to a valid application for refugee status. (38) According to UNHCR, a measure of discrimination will only amount to persecution if it leads to consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on the right to earn one’s livelihood, the right to practice one’s religion, or access to available educational facilities, and will depend on all the circumstances, including the particular geographical, historical and ethnological context. (39)
53. According to the principles that the Court has established concerning the interpretation of Article 9(1)(a) of Directive 2011/95, the competent authority must examine, in the light of the personal circumstances of the person concerned, the actual situation he or she is exposed to in his or her country of origin, taking into account not only the nature and severity of the discriminatory measures the person may be subjected to and their consequences, but also the nature and severity of the penalties the person faces when he or she does not comply with the limitations and restrictions imposed. In accordance with the Court’s case-law, acts that can be regarded as persecution within the meaning of Article 9(1) of Directive 2011/95 must be identified according to the severity of the measures and sanctions taken or that could be taken against the person concerned. (40)
54. In the present cases, there is no doubt that, regardless of the nature of the repression that Afghan women and girls face if they do not comply with the restrictions imposed by the Taliban regime – which alone could amount to an act of persecution within the meaning of Article 9(1)(a) of Directive 2011/95, in so far as they may result in serious and intolerable harm to the person – the discriminatory acts and measures at issue attain a level of severity equivalent to that implied by the violation of the unconditional rights referred to in Article 15(2) ECHR, both in their intensity and cumulative effect and in the consequences they have for the person affected.
55. The restrictions on access to health care are so severe that they violate the fundamental right to protection of health enshrined in Article 35 of the Charter. They also expose Afghan women and girls to the risk of inhuman or degrading treatment under Article 4 of the Charter, for want of access to the relevant health services. The restrictions on access to education, vocational training and the labour market violate women’s rights to education and work, recognised, inter alia, in Articles 14 and 15 of the Charter. This exposes them to the risk of being unable to look after their and their children’s most basic needs, such as food, personal hygiene and a place to live. (41) Such restrictions, owing to the severity of the deprivations they entail, could affect their physical or mental health or even become life-threatening. In that respect, women and girls are also deprived of legal protection against gender-based and domestic violence, which, apart from breaching the principle of equality before the law and the right to an effective remedy, may constitute a violation of the right to life and the prohibition of torture and inhuman or degrading treatment or punishment. (42)
56. In addition to those measures, other discriminatory measures have been introduced to restrict or even prohibit the freedom of movement of Afghan women and girls in public, their freedom of expression and association and their freedom to participate in politics and the political decision-making process. All of those measures show that the actors of persecution clearly intend to exclude women and girls from society by repudiating their civil, political, economic, social and cultural rights. Given that they have a cumulative effect and are applied deliberately and systematically, said measures are designed to establish a social structure based on a regime of segregation and oppression of women and girls, excluding them from civil society and depriving them of the right to lead a dignified and decent life in their country of origin.
57. In his Opinion in Joined Cases Y and Z, Advocate General Bot stressed that ‘persecution is an act of the utmost gravity, because it sets out flagrantly and persistently to deny the most essential rights of the human person, on the basis of skin colour, nationality, gender, sexual orientation, political beliefs or religious convictions. Regardless of the form that it takes, and aside from its discriminatory effect, persecution entails the denial of the human person and seeks to exclude that person from society. Persecution is based on prohibition, prohibiting a person from living in society with others on account of his or her gender, prohibiting a person from being treated equally on account of his [or her] beliefs, or from having access to health care and education on account of his [or her] race. These prohibitions penalise the individual for what he is or represents’. (43)
58. In the present cases, there is little doubt that, whatever form the discriminatory measures take – whether they are decrees adopted by the existing regime or acts tolerated by it – they amount to a sanction on women and what they represent in the country. Indeed, such measures blatantly and relentlessly deny women and girls their most basic rights on account of their gender, depriving them of their identity and making their daily lives intolerable.
59. In that regard, I believe that Article 9(1)(b) of Directive 2011/95 must be interpreted as meaning that the concept of ‘acts of persecution’ includes an accumulation of discriminatory acts and measures adopted by a country against women and girls to restrict or even prohibit, inter alia, their access to education and healthcare, their gainful employment, their participation in public life and politics, their freedom of movement and freedom to take part in sports, depriving them of protection against gender-based and domestic violence and requiring them to cover their entire body and face, in so far as those acts and measures have the cumulative effect of depriving those women and girls of their most basic rights in society and thus undermine full respect for human dignity, as enshrined in Article 2 TEU and Article 1 of the Charter.
B. The scope of the individual assessment that the competent authority is required to carry out under Article 4(3) of Directive 2011/95 (second question)
60. By its second question, the referring court asks the Court of Justice, in essence, whether Article 4(3)(c) of Directive 2011/95 must be interpreted as requiring the competent authority to take into account factors particular to the applicant’s personal circumstances, other than her gender, in order to determine whether the discriminatory measures to which she has been or could be exposed to in her country of origin amount to persecution within the meaning of Article 9(1)(b) of that directive.
61. Specifically, the referring court asks whether it is sufficient to determine that the applicant is a woman, or whether it is necessary to prove that the applicant is specifically targeted because of other factors particular to her personal circumstances.
62. That question is based on two different considerations.
63. On the one hand, it has its origins in the case-law of the referring court regarding the assessment of applications for international protection lodged by Afghan women and girls fleeing the previous Taliban regime in Afghanistan. According to that case-law, prior to the adoption of Directive 2011/95, the overall situation of those women and girls had to be deemed sufficiently serious to find that the discriminatory measures targeting them constituted, in themselves, acts of persecution under the Geneva Convention. Therefore, an applicant was granted refugee status merely because she was an Afghan woman or girl. After the fall of the Taliban regime, the referring court amended its case-law and held that only women and girls who were in danger of being persecuted because of the adoption of a ‘Western-inspired lifestyle’, which had become so essential to their identity that they could not be expected to renounce it in order to escape a threat of persecution, could qualify for international protection, such an assessment being based on the in concreto examination of the circumstances of the case.
64. On the other hand, the referring court points out that, although the measures adopted by the Taliban regime are aimed at all women and girls, it is possible that, in some cases, the women and girls might not actually be subjected to one or more of those measures, such that the discriminatory measures would not, by their cumulative effect, attain a level of severity similar to that provided for in Article 9(1)(a) of Directive 2011/95.
65. Article 4 of Directive 2011/95 lays down the rules for assessing the facts and circumstances on which the examination of the need for international protection is based. The Court of Justice has held that that article is applicable to all applications for international protection, whatever the ground for persecution relied on in support of those applications. (44)
66. Article 4(3) of Directive 2011/95 requires the competent authority to carry out an individual assessment of the application. This must allow that authority to identify persons who are genuinely in need of international protection and to assess their credibility. (45) As part of that assessment, the authority is required, in accordance with Article 4(3)(c) of that directive, to take account ‘of the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm’. (46) The EU legislature does not lay down any specific rules as to the weight or importance to be given to the factors particular to the individual position or personal circumstances of the applicant.
67. By requiring the competent authority to carry out an adequate and complete examination of the application in Article 4(1) and Article 10(3)(a) of Directive 2013/32, (47) the EU legislature allows the authority enough discretion to determine, on a case-by-case basis and in the light of all the information at its disposal, the relevant elements of the application for the purpose of examining the applicant’s need for international protection. The authority is, in fact, in the best position to determine the factors to be taken into consideration, in the light of the facts and circumstances on which the application is based. (48)
68. The Court has recognised that that discretion exists in its case-law.
69. For example, in the judgments of 2 December 2014, A and Others, (49) and of 25 January 2018, F, (50) relating to a fear of persecution on grounds of sexual orientation, the Court ruled that, even though Article 4 of Directive 2011/95 is applicable to all applications for international protection, whatever the ground for persecution relied on in support of those applications, it is for the competent authorities to modify their methods of assessing statements and documentary or other evidence having regard to the specific features of each category of application for international protection, in observance of the rights guaranteed by the Charter. (51) Therefore, the Court allows that some forms of expertise may prove useful for assessing the facts and circumstances, provided that the fundamental rights of the applicant for international protection are respected. (52)
70. In addition, in the judgment of 17 February 2009, Elgafaji, (53) relating to a fear of suffering a serious and individual threat due to indiscriminate violence in the event of armed conflict, the Court accepted that the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities – reaches such a high level that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his or her presence on the territory of that country or region, face a real risk of being subject to that threat, without being required to adduce evidence that he or she is specifically targeted by reason of factors particular to his or her personal circumstances. (54)
71. It follows that the requirement to carry out an individual assessment of the application for international protection presupposes that the competent authority modifies the methods of assessing the facts and evidence according to the specific characteristics of each application.
72. However, the applications for international protection submitted by women and girls originally from Afghanistan have, in my view, specific characteristics that allow the competent authorities to modify the methods of assessing those applications.
73. Indeed, the discriminatory measures to which Afghan women and girls could be exposed are part of a regime of segregation and oppression conducted solely on account of their presence on the territory, regardless of their identity or personal circumstances. (55) Although it is possible that an applicant might not be affected by one or more of the measures at issue due to particular characteristics, she remains exposed to restrictions and deprivations that, taken individually or as a whole, attain a level of severity equivalent to the level of severity required by Article 9(1)(a) of Directive 2011/95. That regime, which is widely documented, is described as being unlike any other. (56) The reports prepared by the EUAA and the bodies of the Council of Europe, the UN reports and the reports issued by international NGOs conclude that the treatment of women and girls in Afghanistan is likely to create a general need for international protection for female applicants.
74. In such circumstances, in my view, there is nothing to prevent a competent authority from considering, in the light of all the information at its disposal, that it is not necessary to establish that the applicant is targeted because of distinctive characteristics other than her gender.
75. The European Court of Human Rights has also ruled to that effect. Thus, it alleviates the requirement for the applicant to prove that a real risk of ill-treatment exists on account of his or her particular circumstances or characteristics, in cases in which it is established that the applicant is a member of a group systematically targeted in his or her country of origin and that the general situation of violence in that country will expose him or her, by the mere fact of his or her return, to a risk of inhuman or degrading treatment contrary to Article 3 ECHR. (57)
76. Such assessment methods also seem to fall within the discretion that the EU legislature grants to the Member States in Article 3 of Directive 2011/95. According to that article, Member States may introduce or retain more favourable standards for determining who qualifies as a refugee, in so far as those standards are compatible with that directive. As the Court recalled in the judgment of 9 November 2021, Bundesrepublik Deutschland (Maintaining family unity), (58) those standards may, inter alia, consist in relaxing the conditions under which refugee status is granted and must not undermine the general scheme or objectives of that directive. (59)
77. Yet such assessment methods cannot, in my view, undermine the general scheme or objectives of Directive 2011/95, since the refugee status is granted after an adequate and complete examination of the applicant’s need for international protection, in accordance with the conditions for granting that status set out in Chapters II and III of that directive.
78. In the light of the foregoing, I take the view that Article 4(3)(c) of Directive 2011/95 must be interpreted as meaning that it does not preclude the competent national authorities from concluding, in the context of examining the individual status and personal circumstances of the applicant, required for the purposes of the individual assessment of the application for international protection, that there is a well-founded fear of being subjected to acts of persecution on account of her gender, without having to look for other factors particular to her personal circumstances.
V. Conclusion
79. In the light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) as follows:
(1) Article 9(1)(b) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted,
must be interpreted as meaning that the concept of ‘acts of persecution’ includes an accumulation of discriminatory acts and measures adopted by a country against women and girls to restrict or even prohibit, inter alia, their access to education and healthcare, their gainful employment, their participation in public life and politics, their freedom of movement and freedom to take part in sports, depriving them of protection against gender-based and domestic violence and requiring them to cover their entire body and face, in so far as those acts and measures have the cumulative effect of depriving those women and girls of their most basic rights in society and thus undermine full respect for human dignity, as enshrined in Article 2 TEU and Article 1 of the Charter of Fundamental Rights of the European Union.
(2) Article 4(3)(c) of Directive 2011/95
must be interpreted as meaning that it does not preclude the competent national authorities from concluding, in the context of examining the individual status and personal circumstances of the applicant, required for the purposes of the individual assessment of the application for international protection, that there is a well-founded fear of being subjected to such acts of persecution on account of her gender, without having to look for other factors particular to her personal circumstances.