The case concerned the asylum application submitted by an Afghan national and where the Supreme Administrative Court suspended proceedings by judgment of 14 September 2022 and referred questions to the CJEU on interpretation of Article 9(1)(b) of the recast Qualification Directive on the concept of acts of persecution as well as of Article 4 (3) of the recast Qualification Directive here.

The CJEU ruled on the case by judgment of 4 October 2024 and found that the concept of ‘act of persecution' covers a cumulation of discriminatory measures against women taken or tolerated by a ‘persecuting actor' within the meaning of Article 6 of the Qualification Directive. It covers in particular, the absence of any legal protection against gender-based and domestic violence and forced marriages, the obligation to completely cover their bodies and cover their faces, the restriction of access to healthcare facilities and freedom of movement, prohibition or restriction on the pursuit of an economic activity, denial of access to education, prohibition on playing sport and denial of participation in political life, since those measures, by their cumulative effect, undermine the respect for human dignity guaranteed by Article 1 of the EU Charter. On Article 4 (3) of the Qualification Directive the CJEU found that it does not require the competent national authority to take into account aspects of her personal circumstances other than her sex or nationality, in order to determine whether, in the light of the conditions prevailing in a woman's country of origin at the time her application for international protection was examined, discriminatory measures to which she was or may be subjected in that country constitute acts of persecution within the meaning of Article 9(1) of that directive, in the context of the individual examination of that application within the meaning of Article 2(h) of that directive.

Based on the CJEU findings, the Supreme Administrative Court reopened the case and overturned the contested decision of the Federal Administrative Court. It stated that in view of the applicable provisions of the asylum law, acts of persecution against Afghan women can be assumed because of the cumulated restrictions adopted the Taliban and directed against Afghan women, due to their effect and their deliberate and systematic application, which results into Afghan women being blatantly and persistently denied the fundamental rights associated with human dignity on the grounds of their gender. The court affirmed that these measures testify to the establishment of a social organization based on a system of exclusion and oppression of women and their denial of a dignified social daily life in Afghanistan.

The court affirmed that it is in principle sufficient for the granting of asylum status to prove the gender and nationality of the asylum seeker and to establish, as part of the individual assessment of the situation of an applicant who refuses to be subjected to such a life in Afghanistan, that she is actually and specifically at risk of suffering persecution if she returns to her country of origin where such conditions prevail.

However, if the case by case assessment reveals other circumstances that show that there are reasons to believe that there is no need for refugee protection and that the application was made solely for other reasons (unrelated to asylum), the assessment of whether asylum status should be granted cannot be limited to merely the findings relating to the situation in the country of origin and the nationality and gender of the asylum seeker. The court reiterated the CJEU emphasis on the need to carry out a case by case assessment in a cautious and vigilant manner.

The court considered that the lower court failed to properly examine in a comprehensive manner all the individual elements, in particular with regard to the situation for women as established by the Taliban after the took over of power in Afghanistan, in order to enable a lawful an assessment. The case was referred back for re-examination by the Federal Administrative Court.