Beyond Protection

Whether and how gender-related violence can constitute a ground to claim and receive asylum has long been a subject of debate in refugee law. While feminist legal scholars have long sought to alleviate the gender-blindness of the original text of the Refugee Convention, the Court of Justice of the European Union (CJEU) only started taking some steps in this direction earlier this year. In WS, the Court recognised that women may be regarded as belonging to ‘a particular social group’ (PSG) in a country as a whole, leading to the recognition of their refugee status (for further analysis, see here and here). Its recent decision in K,L raised a different question. While WS asked whether women could seek protection in the EU based on their well-founded fear of being persecuted by reason of gender-based violence, K,L concerned two young women who, during their stay in the EU, had embraced European fundamental rights standards and values and for that reason faced the risk of persecution upon return.

The CJEU determined that women or specific groups of women who share a belief in an additional common characteristic — such as a belief in gender equality — may be regarded as members of a ‘particular social group’ (PSG), making them eligible for refugee status. This is a commendable development, not least because it reinforces the importance of a gender-sensitive interpretation of the Common European Asylum System (CEAS) by finetuning the articulation of women’s protection needs. However, the Court’s reasoning still leaves critical gaps in addressing the full spectrum of gender-related persecution. In what follows, I shall offer a more nuanced analysis of the means to achieve a gender-sensitive interpretation of EU asylum law.

The Case and Its Legal Background

K, L involved two minor sisters who fled from Iraq with their parents in 2015. After both their initial asylum applications in the Netherlands and subsequent claims were rejected, they appealed this decision to the referring court in The Hague. They argued that during their prolonged stay in the Netherlands, they had adopted ‘Western’ norms, values, and behaviours and feared persecution if they were returned to Iraq due to these fundamental changes in their identities. The Hague court referred the following question to the CJEU:

Can ‘westernised women’ who embrace gender equality and women’s rights be recognised as members of a PSG within the meaning of Article 10(1)(d) of the Qualification Directive?

This provision stipulates two cumulative conditions for an individual to belong to a PSG: (1) an internal criterion, which requires that individuals share ‘an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’; and

(2) an external criterion, requiring that the ‘group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society’.

Diverging Views of EU Asylum Law

Several Member States and the European Commission submitted observations, underlining not only the consequence of this case but also their diverging interpretations of EU asylum law in light of gender equality. Concerning the internal qualifier, the Czech, Greek, Hungarian, and Netherlands governments shared the view that the sisters’ arguments were ‘based on a preference for a certain [Western] lifestyle.’ This, they argued, ‘is not a belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’ and, as such, cannot lead to the grant of international protection (Opinion of AG Collins, point 13). In their view, the concept of ‘Westernised’ women and girls is too broad, heterogeneous, and abstract to delineate the existence of a social group in the sisters’ case.

Conversely, the Spanish and French governments and the European Commission considered the sisters part of a PSG based on gender and age, which, in their view, constitute ‘innate characteristics’. They also noted that their belief in gender equality developed in the Netherlands could be seen as a shared and fundamental belief in the sense of Article 10(1)(d) of the Qualification Directive.

In his Opinion, Advocate General Collins was reluctant to engage with notions such as ‘Westernised’ women and girls and ‘Western’ lifestyle, which he considered dangerously vague (and, I should add, orientalistic; point 18). Instead, he recalibrated the debate on gender equality as a fundamental EU value and as a principle of Union law that became so central to the sisters’ identity so as to qualify them under the internal criterion of the PSG definition. With regard to the external criterion, he also found that ‘girls and women who believe in gender equality may be perceived as transgressing social mores in Iraq due to manifestations of that belief’ (point 48). Interestingly, however, this was not considered to amount to a specific political belief of the sisters, which is also a ground for persecution under both the Refugee Convention and the Qualification Directive.

The Judgement

Building on the AG Opinion and its previous decision on women’s refugee status, the Court affirmed that the sisters could also be recognised as a ‘particular social group’. Their deeply ingrained belief in gender equality met both the internal and external criteria of Article 10(1)(d) of Directive 2011/95. Living in a Member State during their formative years cemented their belief in equality, making it an indelible part of their identity (points 44-45). They also fulfilled the external criterion since it is plausible that the surrounding society would perceive them as having a distinct identity. In this respect, echoing its reasoning in WS (point 54), the CJEU emphasised that it is up to competent national authorities to determine which surrounding society (not necessarily the whole country) is relevant when assessing the external element of the ‘PSG’ (point 50).

In essence, the two sisters can be qualified de facto as ‘refugees sur place’, because of their actions outside their country of origin and how that country’s authorities perceive them. Drawing on its previous case law, the Court also emphasised that developing a belief in gender equality while abroad cannot be seen as an attempt to abuse the asylum procedure (point 62). This approach is included in Article 10(3) of the 2024 Qualification Regulation. Despite the complex language, this provision forbids national authorities from requiring applicants to adapt or change their behaviour, convictions or identity to avoid the risk of persecution in their country of origin – precisely what some intervening Member States were demanding of the two sisters (Opinion of AG Collins, point 13).

In addition, their belief in gender equality did not need a religious or political connotation, though it could have (point 52). This finding aligns with the UNHCR Guidelines on International Protection No. 2, according to which the Refugee Convention grounds (reflected in the Qualification Directive) are not mutually exclusive (para 4).

Finally, the Court also articulated the requirement to consider the ‘best interests of the child’ when assessing asylum applications, including subsequent ones, in light of Article 24(2) of the Charter and Article 3(1) of the International Convention on the Rights of the Child, and the General Comment No 14 of the UN Committee on the Rights of the Child (point 73).

How to Further Advance Gender Equality?

The ruling in K, L (C‑646/21) marks a milestone in grappling with gender-related persecution within EU asylum law. By recognising the sisters’ commitment to gender equality as integral to their identity, the Court acknowledged the profound impact of such values and principles. In so doing, the Court gave gender equality an ‘axiological dimension’, characterising the whole judgment as an endorsement of gender mainstreaming.  However, three further steps should be considered to truly align the law with this promise.

Bridging Gaps Post-Istanbul Convention Accession

First, the limitation of gender consideration to membership to a PSG under EU law, without broader alignment with the Istanbul Convention, points to an enduring gap that the Union must address to genuinely embrace a gender-sensitive asylum system. Article 60(2) of the Istanbul Convention – to which the EU recently acceded – mandates a gender – sensitive interpretation of each of the Refugee Convention grounds enumerated in Article 1(A)(2), not just with respect to membership to a PSG. By contrast, Article 10 of the Qualification Directive restricts gender considerations solely to PSG membership. This issue remains unresolved in the 2024 Qualification Regulation introduced with the EU Pact on Migration and Asylum.

The (De-)Politicisation of Gender Equality

Second, and related, by relying on this (deficient) legal framework, guided by the referring court and the sisters’ asylum claim being exclusively based on their belonging to a PSG (point 24), the CJEU (inadvertently) depoliticised the sisters’ belief in gender equality. This belief might have been grasped straightforwardly as an (additional) ground for persecution based on their political opinions. In this respect, UNHCR has long acknowledged that the focus on PSG has led to other applicable grounds like religion or political opinion being overlooked (UNHCR, 2002, para. 28). Scholars have also highlighted that the PSG ground in the Refugee Convention has been overused and narrowly interpreted, often at the expense of the political opinion ground.

Women who obtain refugee status under the PSG ground are often seen as passive and apolitical victims in need of protection rather than as active rights-holders resisting violence and discrimination. Refugee protection thus becomes a mechanism for ‘saving brown women from brown men’ in ‘backward’ and ‘primitive’ societies. Insisting on and broadening the scope of the PSG ground may have the unintended consequence of reproducing those disempowering effects. In this respect, in WS the CJEU seemed to import women’s transgression of social norms (and political opinions) into the discussion of PSG (point 58). However, in K,L, it adopted a more nuanced approach. While focusing only on the PSG, the Court recognised that, depending on the circumstances, the identification with the values of gender equality could also be regarded as a reason for persecution based on religion or political opinion (point 52). Nonetheless, the harm suffered by the two sisters in this case was characterised as ‘cultural’, rather than political, exacerbating the ‘exclusionary inclusion’ of the refugee definition.

Intersectionality and Legal Mobilisation

Third, under the Qualification Directive (Article 4(c)), gender and age are important elements in the assessment of asylum applications. The Court has also emphasised their relevance when national authorities examine a ‘subsequent application’, as in the case at hand. The Court connected the sisters’ age to the formation of the sisters’ beliefs in EU values during a period when, as children, they formed their identities and their belonging to the PSG discussed above (point 83). The ruling, while progressive, did not fully explore the intersection of gender, age, and the various forms of oppression overlapping in the lives of migrant women and girls, including the sisters in K,L.

In particular, the equation of ‘westernisation’ with the fundamental value of equality between women and men betrays a Eurocentric stance that risks ignoring ‘the complex intersections of race and gender shaping both women’s experiences and the racialised politics of protection’. The Court did not address this issue, nor the political sisters’ political opinions because it was not asked to do so, and the applicants specifically relied on their ‘westernisation’ to build their claim. EU legal mobilisation can be crucial in blurring the boundaries of EU (asylum) law. Yet, the impact of this strategy is contingent on lawyers, advocates, and other collective actors working hard, often in challenging conditions, and with little access (or time to devote) to interdisciplinary expertise to respond to refugee women’s protection needs.

Concluding Remarks

Rather than triggering a feminist revolution, the Court’s replies to references in cases involving refugee women align (to the extent possible) the CEAS with existing international standards, following the thread started with WS. An intersectional feminist perspective reveals a more fundamental problem with the CEAS and the Court’s pertinent case law. For as long as the EU does not allow international protection requests at embassies or the possibility to reach its borders and lodge their requests safely, women will continue to face unsurmountable barriers to be able to seek any protection in the first place.

Ultimately, while commendable, K, L underscores the ongoing struggle to realise gender equality within EU asylum law, raising vital questions about who benefits from gender mainstreaming, including through the development of case law, and who may still be marginalised. The emancipatory potential of gender equality in the CEAS can only be fully realised by moving beyond the notion of ‘refugee women’ as a homogenous category and the ‘racialised politics of protection’ undergirding it.