On 16 January 2024, the Grand Chamber of the Court of Justice of the European Union (“CJEU” or “the Court”) clarified in C-621/21 (“WS”) that women, when victims of gender-based violence, can qualify as members of a “particular social group” to benefit from refugee protection under the Qualification Directive (“QD”). In its interpretation of the relevant law, the CJEU drew upon the Istanbul Convention for the first time since it entered into force for the EU in October 2023. The Istanbul Convention is the first legally binding instrument on preventing and combating violence against females at the international level. The Court further referred to the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). The Court’s regard to these international law instruments is a major step to ensure the protection of refugee women fearing gender-based violence.
With an overview of the facts of the case, this blog post pursues three main objectives: We aim to, first, analyse the CJEU’s use of international law as a source of interpretation, second, demonstrate how the Court applied international law in its interpretation of women as a ‘particular social group’ and, third, connect its decision with the ongoing reform of the Common European Asylum System (“CEAS”).
Facts of the Case
The matter was referred to the CJEU by a request for a preliminary ruling (Art 267 TFEU). The main proceedings in front of a Bulgarian court concerned the claim for international protection by a Kurdish woman of Turkish nationality. She was forcibly married at the age of 16 to a husband who repeatedly beat her during the marriage. After fleeing the marital home, she remarried and divorced her first husband, despite his objections. She feared that, if she were to return to Türkiye, her family would force her to remarry, or that she would become the victim of a crime committed by family members as the family claims her to have brought “dishonour” upon them. Her initial claim was denied because the Bulgarian authority found that the acts of domestic violence as well as the death threats by her family and ex-husband were not relevant for granting refugee status.
WS’s claim for protection is based on the national law that transposes the QD into the Bulgarian legal system. The QD is the main instrument in EU Law on the qualification of asylum-seekers for refugee status or other forms of international protection. It is grounded in the 1951 Geneva Convention relating to the Status of Refugees (“Geneva Convention”) and the 1967 Protocol. It further develops the criteria contained therein and thereby harmonises their application by the EU member states. Per Art 2(d) QD, a “refugee” is “a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, […]”.
In WS, the Bulgarian court decided to refer several questions (para 34) to the CJEU on the interpretation of the relevant provisions of the QD, inter alia, on the relevance of the CEDAW and the Istanbul Convention for the interpretation of the QD, despite Bulgaria not being a party to the latter Convention, as well as on if, and potentially how membership of a “particular social group” can be established in the context of gender-based violence.
CEDAW and Istanbul Convention as Sources for Interpreting the QD
The Court had to determine the interpretative weight that had to be given to CEDAW, the Istanbul Convention and the Geneva Convention when interpreting the QD in the context of gender-based violence against women. Once the Court has clarified the importance of these international law treaties, it disregards the solution proposed by AG Richard De la Tour in his opinion. According to him, CEAS including the QD must follow the Geneva Convention and the 1967 Protocol, as referred to in Art 78(1) TFEU, but not the Istanbul Convention or CEDAW (para 53 seqq.).
In contrast, the Court recognised CEDAW and the Istanbul Convention as sources determining the interpretation of the QD. Firstly, the Court recognised that even if the EU itself is not party to CEDAW, all Member States have ratified it (para 44), making CEDAW one of the treaties Art 78(1) TFEU refers to. The QD must be interpreted in accordance with CEDAW, the Court concluded. Secondly, the Court examined the impact of the Istanbul Convention on the interpretation of the QD (para 46 seqq.). Where it lays down obligations linked to the CEAS, the EU is bound to respect them. Therefore, the QD must be read in light of the Istanbul Convention. Hence, some Member States such as Bulgaria not having ratified the Convention is irrelevant (para 46-47).
The EU’s accession to the Istanbul Convention was a lengthy and contentious journey. Having signed the Convention already in 2017, the ratification was only completed in June last year, inter alia due to the Council’s reluctance to proceed in light of a lack of consensus among the Member States. The process finally advanced after the CJEU had clarified in Opinion 1/19 that the conclusion of so-called mixed agreements was not conditional upon a common accord among the Member States to the extent that the agreement falls within the competences of the EU (para 241 seqq; also see here). The Istanbul Convention is only the second international treaty that the EU has become part of (after the UN Convention on the Rights of Persons with Disabilities).
Bulgaria was among the Member States that opposed the EU’s accession to the Convention. Its ratification was the subject of a populist disinformation campaign and the Bulgarian Constitutional Court held in 2018 that the Convention contradicted Bulgaria’s Constitution, thereby putting the ratification process on hold. Like Bulgaria, also Czechia, Hungary, Latvia, Lithuania and Slovakia are not parties to the Convention themselves but will still be bound to it after the EU’s ratification on matters related to judicial cooperation in criminal matters, asylum and non-refoulement. WS is the first case in which the CJEU has made use of the Istanbul Convention since it became binding for the EU.
Women as a “Particular Social Group”
After having clarified that the treaties of international law have to be considered when interpreting the QD, the CJEU turns to the interpretation of a “particular social group” in Art 10(1)(d). The provision sets out the following elements that need to be taken into account when establishing the “membership of a particular social group”: Firstly, “members of that group 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”. Secondly, “that group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society.”
In earlier case law, the CJEU implied that the two elements need to be fulfilled cumulatively, but it had never applied the provision in the context of gender-based violence. The request for a preliminary ruling by the Bulgarian Court therefore offered a chance for the CJEU to clarify what determines the membership to a “particular social group”.
When interpreting Art 10(1)(d) QD, the CJEU explicitly referred to Art 60(1) and (2) of the Istanbul Convention, which requires parties to the Convention to apply a gender-sensitive interpretation to the Geneva Convention and to recognise gender-based violence as a form of persecution. With this in mind, the CJEU concluded that both elements of Art (1)(d) QD are satisfied: being female is an innate characteristic (para 49) and women may have a distinct identity in the society that they are surrounded by, because of social, moral or legal norms in that society (para 52). Hence, the CJEU concluded that “women, as a whole, may be regarded as belonging to a ‘particular social group’, within the meaning of Art 10(1)(d) QD, where it is established that, in their country of origin, they are, on account of their gender, exposed to physical or mental violence, including sexual violence and domestic violence” (para 57). Additionally, the Court stated that more restricted groups of women who share an additional common characteristic may also form a “particular social group” (para 62).
Outlook: The Protection against Gender-Based Violence under the New CEAS
This ruling represents an important step towards an EU-wide protection of refugee women who are victims of gender-based violence. Nevertheless, if the EU truly wants to protect victims of gender-based violence, it should also give effect to the Istanbul Convention in the CEAS reform. The current CEAS accounts only in a few parts for a gendered perspective on the protection of refugees. The reformed CEAS which should be adopted in April 2024 does not intend adding protection to victims of gender-based violence. On the contrary, the planned fast-track procedures at the external borders will most likely hinder an appropriate examination of asylum claims. Especially for victims of gender-based violence, an individualised assessment of their claim is crucial, to guarantee them access to their rights. It is feared that the reform will not improve their position. Ever stricter laws cannot be sufficiently counteracted by a broad interpretation of the CJEU.
