The case is registered before the CJEU under C-609/22

F.N. is an Afghan national who entered Austria illegally, in August 2020, as a minor accompanied by her brother who had previously been granted subsidiary protection in Austria. F.N grew up in Iran where she was prevented from continuing her education because she was undocumented. She stated that she feared being abducted in Afghanistan and that she had no family connections in Afghanistan.

On 14 August 2020, the Federal Office for Immigration and Asylum rejected F.N.’s application for refugee status but granted her subsidiary protection on the basis that she was a minor and had no social network in Afghanistan. The applicant appealed this decision before the Federal Administrative Court on the grounds that she objected to their reasoning that her short stay in Austria was not sufficient reason to claim that she would be at risk as a result of westernisation. On 28 September 2021, F.N. submitted a letter to the court highlighting that the Taliban takeover had increased her likelihood of being persecuted if returned to Afghanistan. The Federal Administrative Court dismissed the case based on a point of law – namely that an appeal against a point of law could not be made under Article 133(4) of the B-VG.

F.N. brought a second appeal before the Supreme Administrative Court who decided to refer two questions to the CJEU. The first question sent by the court centred around whether a combination of measures adopted, encouraged or tolerated by a state which limit a women’s freedom could amount to persecution within the meaning of Article 9(1)(b) of the Qualification Directive (recast). In particular the court noted the following restrictions and limitations which were adopted, encouraged or tolerated by the Taliban:

• Denial of participation in political life and decision making
• Lack of protection from gender-based violence
• General risk of forced marriage despite forced marriage being prohibited by law
• Restrictions on the right to work outside of the home
• Restrictions on access to education (especially secondary and post-secondary education)
• Restrictions on the right to leave the home without a male guardian
• Restrictive dress codes including the obligation to fully cover their body and face in public
• Prohibitions on practicing sports
• Reduced access to healthcare facilities as a result of other restrictions on travel

The second question asked whether a woman who is affected by such measures should be granted refugee status solely on the basis of her sex or if it would be necessary to examine the individual circumstances of the applicant to determine how the measures impact a woman’s individual situation.