The Court of Justice of the European Union has concluded that women who experience gender-based violence in their country of origin can be regarded as belonging to a ‘particular social group’ and qualify for refugee status. This is as a result of a preliminary reference made to the Court by Bulgaria in C‑621/21 WS v Intervyuirasht organ na Darzhavna agentsia za bezhantsite pri Ministerskia savet.

The case concerned WS, a Turkish national of Kurdish ethnicity, who sought international protection in Bulgaria. Her claim was on the grounds that she was the victim of a forced marriage, beatings and threats of violence perpetrated by her husband, her husband’s family and her own family. She fled from Turkey and divorced her husband. She feared being the victim of an ‘honour killing’ or being forced to remarry if she returned to Turkey.

Her initial protection claim was refused by the Bulgarian authorities and dismissed on appeal. They concluded the particular acts of domestic abuse and death threats made by her husband and by members of her family could not be linked to a Convention reason. And further, she had not claimed to be the victim of acts of persecution because of her gender.

WS made a subsequent application with new evidence. This time her claim was based on a well-founded fear of persecution by non-State actors 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. 

Meaning of ‘particular social group’

Article 10(1)(d) of Directive 2011/95/EU (the ‘Qualification Directive’, which lays down the common criteria for identifying people in need of international protection in the EU) sets out two conditions that must be met for a group to be considered ‘a particular social group’:

• members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and
• that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.

The conditions are to be considered cumulatively, meaning both conditions must be met.

Questions referred to the Court

The Administrative Court of Sofia sought clarification from the CJEU on how to establish membership of a particular social group in the context of asylum claims based on gender-based violence and domestic violence, and in circumstances where the violence is committed by a non-State actor.

It asked whether the definitions in relevant international law apply when classifying gender-based violence against women as a ground for granting international protection under the Refugee Convention and the Qualification Directive. The relevant international law definitions referred to were those under the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) and the Council of Europe Convention on preventing and combating violence against women and domestic violence (the ‘Istanbul Convention’).

Lastly, it questioned whether the threat of an honour killing constitutes a ‘real risk of serious harm’ for the purposes of granting subsidiary protection (known as humanitarian protection in the UK). This would be in situations where it has not been established that a woman who is a victim of domestic violence or the potential victim of an honour killing is a member of a particular social group.

Held

The Court held that where it is established that women are exposed to physical or mental violence (including sexual and domestic violence) in their country of origin and on account of their gender,

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

The Court referred to the opinion of the Advocate General who had pointed out that this may also include women who were victims of forced marriages. In societies where forced marriages are the norm, a woman who refuses to marry or ends their marriage may be recognised as a member of a particular social group if

they are stigmatised and exposed to the disapproval of their surrounding society resulting in their social exclusion or acts of violence.

To determine whether a woman relying on the ‘membership of a particular social group’ category has a well-founded fear of persecution, the Member State assessing the application would need to consider the situation in the country of origin by examining

the position of women before the law, their political rights, their social and economic rights, the cultural and social mores of the country and consequences for non-adherence, the prevalence of such harmful traditional practices, the incidence and forms of reported violence against women, the protection available to them, any penalties imposed on those who perpetrate the violence, and the risks that a woman might face on her return to her country of origin after making such a claim.

But where the conditions for a grant of refugee status are not met, a woman may still qualify for subsidiary protection. This would be in circumstances where there is a real risk of being killed or subjected to acts of violence inflicted by a family member or their community due to the alleged transgression of cultural, religious or traditional norms.

The Court also found that the Qualification Directive must be interpreted consistently with CEDAW, which all EU member states have ratified, and the Istanbul Convention, which is binding on EU Member States. It did not matter that Bulgaria had not ratified the Istanbul Convention itself. Article 60(1) of the Istanbul Convention specifically recognises gender-based violence against women as a form of persecution within the meaning of Article 1A(2) of the Refugee Convention.

Comment

This is the first time that the CJEU has received a preliminary reference on this issue and so it is an important ruling for women seeking protection in EU member states on the grounds of gender-based violence. But does WS have any useful application in the UK? It was a matter brought before the CJEU after the end of the Brexit transition period, so it is not binding. But it may still be relevant.

Section 33 of the Nationality and Borders Act 2022 reimposed the ‘cumulative’ test for assessing whether a group is a ‘particular social group’, mirroring EU law. The Court’s views should therefore be persuasive in the UK as courts always look to each other on matters of interpretation such as these. The UK has also ratified both CEDAW and the Istanbul Convention, so it is subject to the same obligations as EU member states in regard to protections for women.

As Francesca wrote earlier this week, gender-based violence asylum claims are complex and challenging. The second condition of the cumulative test – that the group must have a distinct identity in the relevant country because it is perceived as being different by the surrounding society – is very difficult to establish. It creates an additional hurdle for vulnerable people, such as women fleeing domestic abuse, and goes against UNHCR standards. WS should therefore be a useful judgment to advance in cases and one which will hopefully have positive consequences extending to women claiming international protection in these circumstances in the UK, as well as in the EU.

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