A N, an Afghan national and an ethnic Pashtun from the Province of Laghman (Afghanistan), requested international protection in Austria on 4 November 2015, claiming that he was at risk of persecution in Afghanistan on account of a blood feud targeting persons who were related to his father, due to a property dispute concerning agricultural land between his father and his father’s cousins. A N stated that his father and brother were killed by his father’s cousins as part of that blood feud.

By decision of 21 June 2017, the Federal Office for Immigration and Asylum (BFA) rejected that application, considering that A N’s departure from Afghanistan was ‘solely motivated by his desire to improve his economic and social situation’ and that the information provided concerning the risk of persecution had no basis in reality. A N appealed and by decision of 26 July 2022, the Federal Administrative Court upheld the appeal, granting him refugee status.

The Federal Administrative Court found that A N’s statements as to why he feared persecution in his country of origin were proven and that a return would expose him to the risk of being attacked or killed by his father’s cousins because of his relationship to his father, without reasonably being able to expect protection from the Afghan authorities. Furthermore, if A N were to settle in another region of his country of origin, there would be a risk that he would not be able to meet his needs.

The BFA appealed on a point of law against that decision before the Supreme Administrative Court, claiming that being a member of a family targeted by a blood feud could not be classified as ‘membership of a particular social group’ within the meaning of Article 10(1)(d) of the recast Qualification Directive (recast QD). The Supreme Administrative Court decided to refer questions to the CJEU for a preliminary ruling on whether Article 10(1)(d) of the recast QD must be interpreted as meaning that an applicant for international protection targeted by a blood feud in the country of origin because of his or her status as a member of a family involved in a property dispute may, for that reason alone, be regarded as belonging to a ‘particular social group’.

The CJEU first observed that a proven risk of being subjected to physical violence which may extend to homicide, such as that to which A N would be exposed in his country of origin, is not sufficient in itself to be granted ‘refugee status’ within the meaning of Article 2(e) of the recast QD. The court further that under Article 10(1)(d) of the recast QD, a group is to be considered a ‘particular social group’ if two cumulative conditions are satisfied: 1) the members of the relevant group must share at least an ‘innate characteristic’, a ‘common background that cannot be changed’ or a ‘characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’; 2) that group must have a distinct identity in the country of origin ‘because it is perceived as being different by the surrounding society’ (see K and L v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), C‑646/21, 11 June 2024).

The CJEU noted that the first condition is fulfilled in the present case, as the members of a family, on account of their family ties stemming from biological parentage, adoption or marriage, share an ‘innate characteristic’ or a ‘common background that cannot be changed’. The court added that the fact that the members of a family, in particular men and boys, are subjected to a blood feud passed down from generation to generation through the male line, falls within such a common background that cannot be changed and thus constitutes an additional feature common to those persons.

Regarding the second condition, namely the distinct identity of that group in the country of origin concerned ‘because it is perceived as being different by the surrounding society’, the CJEU highlighted that the perception by the surrounding society of the difference in the group concerned is of decisive importance and, as argued by the Advocate General, it is a condition that must be assessed in conjunction with the perception of the surrounding society, not separately and independently from it. Furthermore, the Member State must determine which ‘surrounding society’ is relevant when assessing whether such a social group exists, whether it is the entirety of the country of origin or a part of the territory or population of that third country.

The court also added that ‘membership of a particular social group’ is to be established independently of the risk of acts of persecution to which the members of that group are exposed in their country of origin. In this sense, the perception of only a few individuals who are part of the surrounding society cannot be decisive and the group must be perceived as being different by the surrounding society as a whole, so by a substantial proportion of the individuals making up that society and not solely by single perpetrators.

Regarding blood feuds, the CJEU held that the victims’ perception of their own difference is not decisive as this does not in itself mean that the group which they form together is perceived as being different by the surrounding society, as required by Article 10(1)(d) of the recast QD.

The court thus highlighted that what matters is the fact that a group is perceived as being different by the surrounding society as a whole, in particular because of the social, moral or legal norms prevailing in the country of origin.

Turning to the present case, the court noted that, subject to verification by the referring court, it is not apparent from the documents submitted that the group made up of the members of a particular family targeted by a blood feud caused by a property dispute, is perceived in their country of origin as being different not only by the members of the families involved in that blood feud, but by the surrounding society as a whole.

Thus, the CJEU held that if an applicant for international protection is exposed in the country of origin to a risk of physical violence extending to homicide as part of a blood feud which targets all or some of the family members, as a result of a property dispute, this does not lead to the finding that that applicant belongs to a ‘particular social group’ within the meaning of Article 10(1)(d) of recast QD and such an applicant cannot, on that basis, be granted refugee status.

The CJEU further recalled that when conducting the individual assessment of an application, if the competent authority finds that the applicant does not qualify for refugee status, Article 10(2) of the recast Asylum Procedures Directive requires that authority to determine whether the applicant qualifies for subsidiary protection, if he or she would face a real risk of suffering serious harm which includes the death penalty, execution, torture, inhuman or degrading treatment or punishment in the country of origin. The court added that since there is no distinction according to whether the harm is caused by a State actor or by a non-State actor, serious harm covers a real threat to the applicant of being killed or subjected to acts of violence inflicted by a member of his or her family or community, irrespective of the reasons underlying those acts.