The Next Episode On Gender-Based Asylum
One of the CJEU’s most talked-about recent cases asks a simple question: when does someone belong to a “particular social group” under EU refugee law? On 11 June 2024 in K, L v Staatssecretaris van Justitie en Veiligheid (K, L), the CJEU found that, depending on the circumstances in the country of origin, women who genuinely came to identify themselves with the fundamental value of equality between women and men during their stay in the host country can be regarded as belonging to a particular social group under Article 10 (1) (d) of the Qualification Directive. This can constitute a reason for persecution capable of leading to the recognition of refugee status (para. 64). This judgment forms part of a line of case law through which the CJEU has developed a gender-sensitive approach to refugee protection in 2024.
In the Netherlands, where the case originated, the ruling prompted changes to policy guidelines on gender-based asylum. However, the implementation of the K, L judgment has led to a divergence between national policy and national courts over the meaning of “identification with the fundamental value of equality between women and men.” This conflict was highlighted in a 7 July 2025 decision of the District Court of The Hague, which found that the Dutch authority’s interpretation contradicted K, L, and referred five questions to the CJEU concerning the role of the courts in credibility assessments and the interpretation of “well-founded fear.”
By shedding light on this growing divergence, this post pursues a twofold goal. First, it illustrates how national authorities may use policies to limit the effects of the CJEU judgment. Second, it offers some insights into the clarifications that the CJEU could provide on the role of national courts in credibility assessments as well as the interpretation of “well-founded fear”.
National policy developments and judicial reactions
Following the CJEU’s ruling in K, L, the Minister for Asylum and Migration amended Aliens Circular 2000 (Vreemdelingencirculaire 2000) on 24 November 2024, to clarify that “women in general, as well as certain subgroups of women sharing a specific common characteristic, may, depending on the circumstances in the country of origin or in a particular region thereof, be recognized as constituting a social group” (paragraph C2/3.2.5.2.1). Additionally, with the specific aim of aligning Dutch policy with K, L, a new title has been added to the Aliens Circular 2000 which reads “Identification with the fundamental value of equality between women and men”. The amendment clarifies that women who genuinely identify with the fundamental value of equality between women and men (“identification”) may, depending on the circumstances in the country of origin, be recognized as belonging to a “social group”.
To implement this, a “three-step assessment” has been introduced. These steps consist of determining “identification” with gender equality in the individual case, assessing whether the claimed group has a distinct identity in the country of origin, and assessing whether this leads to a well-founded fear of persecution.
These policy changes triggered judicial reactions culminating in the judgment of the District Court in The Hague in July 2025. The Court’s objection to the policy relates to the first step of the assessment. The circular stipulates that, when determining “identification”, the initial inquiry must establish whether the woman in question has demonstrated that her identification can be traced back to her fundamental belief in gender equality. At this point, the Dutch Court observed that the government had introduced an additional requirement, which the CJEU in K, L had not stipulated.
The District Court’s decision and the references to the CJEU
The case in question concerns an Iraqi family with three adult daughters who claimed to identify with the fundamental value of gender equality. Their asylum applications were rejected as manifestly unfounded on 11 September 2023, prompting appeals. Following the CJEU’s K, L judgment, the national authority reheard the applicants but upheld the rejection on 25 February 2025. The final court hearing took place on 13 June 2025, after which the Court referred questions to the CJEU. These preliminary questions referred to a series of important issues regarding the role of national courts in credibility assessments and the meaning of “well-founded fear.” Below, we will briefly summarise the judicial response to the national policy following the K, L judgment, focusing on the meaning of “genuinely identifying with the fundamental value of equality between women and men”, and the criteria used to assess “well-founded fear”, including the role of the national courts in carrying out the assessment.
Genuine identification with the fundamental value of equality between women and men
The District Court in The Hague held that Dutch asylum policy misinterprets EU law by requiring women to prove that their “identification” with gender equality is so fundamental to their identity or moral integrity that they cannot be expected to renounce it. This requirement, laid down in paragraph C2/3.2.5.2.1 of the Aliens Circular 2000, is incompatible with the K, L judgment.
According to the Court, K, L does not support the idea that identification itself must be fundamental. Rather, the CJEU clarified (para. 44) that “fundamental” refers to the nature of the right to equality between women and men, not to the degree of an individual’s identification with it. It is sufficient for a foreign national to wish to enjoy the benefits of equality in daily life and to be able to make decisive life choices (e.g., partner, living situation, work) reflecting that value. Once such identification is demonstrated, it counts as a belief or characteristic so fundamental to the person’s identity or moral integrity that she cannot be required to renounce it, within the meaning of Article 10(1)(d) of Directive 2011/95/EU. The Court of Justice went on to state that if this identification develops during a formative life stage, it creates a common background that cannot be altered (para. 45). The national authority may not impose additional requirements beyond those set out in K, L.
Consequently, the District Court in The Hague annulled the national authority’s decision and rejected the authority’s approach, which dismissed the applicants’ identification as not credible, partly due to their limited knowledge of women’s conditions in Iraq (para. 2.24). The Court found that requiring knowledge of the situation in the country of origin to prove identification with gender equality is unreasonable. Instead, the Court stressed that identification with the value of equality is independent of conditions in the country of origin. By setting such additional conditions, the national authority thus misapplied EU law.
Essentially, the Court found that Dutch asylum policy imposes an unlawful and overly restrictive interpretation of K, L by demanding a degree of “fundamental” identification not required by EU law, and by introducing additional credibility tests unrelated to the legal standard.
Assessing “well-founded fear of being persecuted” in gender-related cases
Regarding the assessment of a well-founded fear of being persecuted, the decision contains procedural and substantive discussions.
Substantively, although the applicants expressed fear of persecution if they were returned to Iraq, the national authority reached a different conclusion. It argued that the applicants do not have a well-founded fear of persecution since their parents are very open-minded and grant them complete freedom. Therefore, it was not evident that they would be unable to enjoy the same freedoms in Iraq (para. 2.30). However, the Court criticised this approach as overly simplistic, as it failed to recognise the deeply rooted tribal and patriarchal traditions in Iraq (para. 2.38).
When assessing “well-founded fear,” the Court acknowledges that Directive 2011/95/EU does not provide a definition and that the CJEU has not yet ruled on its interpretation. For this reason, the Court has referred important preliminary questions to the CJEU concerning the applicable criterion. In particular, the Court asks the CJEU whether “well-founded fear” should be understood as a situation where there is a reasonable degree of likelihood that the asylum seeker will be persecuted upon return, as formerly established by Dutch policy guidelines, whether that reasonable degree of likelihood should be determined based on the criterion of a “reasonable and prudent person,” and what alternative criterion should be applied if none of the previous questions are answered affirmatively.
Procedurally, the District Court in The Hague expresses concerns that the Administrative Jurisdiction Division of the Council of State does not currently allow national courts to conduct an independent assessment (para. 2.39). This restriction is based on the reasoning that the national authority possesses the expertise, resources, and country-specific knowledge necessary to perform a comprehensive risk assessment; consequently, the Court’s role is limited to annulling the authority’s decisions on formal legal grounds, without the ability to carry out its own fact-based evaluation.
Consequently, the Court referred the following questions to the CJEU:
– Based on EU law, can the national Court review and replace the national authority’s credibility assessment of an asylum claim?
– Can the Court make a final decision on an asylum application using both the national authority’s and its own credibility findings?
– Can the Court replace the national authority’s assessment of the risk of persecution, especially if there is sufficient public information? The Court also asks whether national law can limit its authority so that only the national authority can make these decisions.
These are all important questions, as they will allow the CJEU to explain the link between asylum procedures and the right to an effective remedy as currently enshrined in Article 46(3) of the Procedures Directive 2013/32 in conjunction with Article 47 of the EU Charter of Fundamental Rights.
Looking forward to the next steps
The District Court in The Hague struck down Dutch asylum policy for wrongly narrowing the K, L standard on “identification with gender equality” and referred relevant questions to the CJEU. These questions will arguably lead to more significant CJEU jurisprudence on gender-based asylum.
In particular, the CJEU has been tasked with resolving a long-standing debate regarding the interpretation of the notion of “well-founded fear”. This concerns, on the one hand, the traditional “bipartite approach” that sees well-founded fear as the result of a subjective element (what the person believes will happen), and an objective element (whether evidence shows an actual risk). On the other hand, the opposing view sees “fear” exclusively as a forward-looking risk assessment, with no subjective element at all.
At a more technical level, the Court of Justice is called upon to reflect on the limits of the principle of procedural autonomy, which will allow it to clarify whether “well-founded fear” requires a specific likelihood threshold, and whether it goes beyond the limits of procedural autonomy to restrict national Courts from reassessing credibility. It is therefore now up to the Luxembourg Court to seize this opportunity to clarify these long-debated issues in a potentially groundbreaking ruling.
Finally, it is worth emphasizing that this case law will enrich the limited jurisprudence on gender-based asylum, thus contributing to the integration of “gender” into a field which has often considered women only exceptionally within the scope of refugee protection.