The case was registered with the CJEU under case number C-608/22

A.H. is an Afghan national, of Hazara ethnicity, who lodged an application for international protection in Austria on 31 August 2015. A.H. stated that she left Afghanistan and travelled to Iran with her mother because her father attempted to sell her to their local Mulla in order to obtain money which he needed to sustain his drug addiction. The authorities assume that A.H. left Afghanistan when she was 13 or 14 years old. She left Iran.

The Federal Office for Immigration and Asylum concluded that A.H. had not provided evidence of persecution in her home country but granted her subsidiary protection on the grounds that she could not be returned to Afghanistan as her lack of social network in the country could prevent her from meeting her basic needs. A.H. lodged an appeal against this decision before the Federal Administrative Court on the grounds that the Federal Office had not adequately examined the effects of westernisation but it was dismissed as unfounded on the grounds that A.H. had not adapted a western life which had become so integral to her identity that she could not be expected to suppress it. The court also concluded that she was not at risk solely as a result of her Hazara identity. The court did not examine the question of whether women in Afghanistan should be considered a particular social group and granted refugee status solely on the basis of being Afghan women.

The applicant lodged a second instance appeal before the Supreme Administrative Court who in turn referred the case to the Court of Justice of the European Union. 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 questioned 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.

In its justification of the referrals, the Supreme Administrative Court of Austria, noted several different aspects which could influence their interpretation of Article 9(1)(B) in respect of women from Afghanistan.

Firstly, the Supreme Administrative Court considered whether westernisation should be examined as a defining element of whether an Afghan woman could be expected to live under the restrictions imposed by the Taliban. The court confirmed that not every change in a woman’s lifestyle which cannot be maintained in their country of origin is grounds for being granted refugee status. Only fundamental changes which form a central part of the applicant’s identity and could not be enjoyed in their country because of restrictions on the enjoyment or exercise of a particular rights linked to the change. For this reason, it could be argued that an individual assessment is necessary.

The court noted that it could also be argued that the combination of different restrictions imposed on women’s fundamental rights in Afghanistan could be considered as constituting a serious violation of human rights equating to persecution within the meaning of Article 9(1) of the Qualification Directive. This would suggest that all women would be at risk of persecution in Afghanistan regardless of whether they have lived in a western culture for a prolonged period of time or had a lifestyle which was significantly altered as a result of the Taliban takeover.

 At the same time, the court noted that the probability of all women facing conditions which would equate to persecution within the meaning of Article 9 of the Qualification Directive must be considered, as case law suggests that the remote possibility of persecution is not sufficient and that there must be a significant possibility of persecution to be granted status under Article 9 of the Qualification Directive. If this interpretation was continued, it would mean that an individual assessment would be necessary to confirm whether the level of persecution experienced by a particular woman met the required threshold.

The court also questioned how it would consider the case of Afghan women who do not oppose the Taliban regime as in such a case a woman would presumably not consider herself to be negatively affected by the new limitations imposed on her rights if it was assumed that all women from Afghanistan belonged to a particular social group who should be granted refugee status based solely on the fact that they belong to this group. The court noted that this question leads to an additional question - whether a woman who opposes the new restrictions but whose current position is not drastically changed by the measures because, for example, she is already married and does not seek employment, further education or normally practice any sport would be at risk of persecution within the meaning of Article 9 of the Qualification Directive.