The conclusions of the Advocate General Richard de la Tour in Case C-621/21, published on 20 April 2023, find that a woman who is a victim of forced marriage and domestic violence can be granted refugee status on the basis of her membership of a "particular social group". The opinion is the result of a reference for a preliminary ruling from the Administrative Court of Sofia-City (ACSC) on whether international protection is available and, if so, what kind, given the special nature of the acts of violence to which these women are exposed in their countries of origin. The Advocate General's conclusions are not binding, but the CJEU will normally take them into account when giving a final decision in a case.
In this strategic case on the rights of women victims of domestic violence and their access to international protection, the Foundation for Access to Rights represents a Turkish citizen who has applied for asylum in Bulgaria. The woman entered into forced marriage and had to leave the family home after multiple incidents of domestic violence and threats from both her husband and her birth family. In 2017, one year before her marriage to her first husband was dissolved, she entered into a religious marriage with another man. While in Bulgaria, she claimed to the competent authorities that she feared for her life if she were returned to Turkey.
The conclusion of the Advocate General in this strategic FAR case paves the way for women who suffer serious abuse in the home to receive adequate protection. Although the problem affects many asylum seekers in Bulgaria and the EU, until now these women were not considered eligible for refugee status or subsidiary protection. According to international, European and national law, the grounds for refugee status are persecution based on race, religion, nationality, political opinion or membership of a particular social group. Directive 2011/95 (Qualification Directive) also introduces subsidiary protection, which is provided for any third-country national who does not qualify as a refugee but for whom there are substantial grounds to believe that, if returned to his or her country of origin, would face a real risk of serious harm.
In his conclusions, the Advocate General examines the conditions under which a third-country national who risks becoming a victim of an honour crime or forced marriage, as well as being exposed to domestic violence upon return to her country of origin, may be granted refugee status on the basis of her membership of a "particular social group". He recalls that the Qualification Directive provides for two cumulative conditions: on the one hand, members of a "particular social group" must share an innate characteristic or common history that is not subject to change (art. 10(d)). On the other hand, this group must have its own identity in the third country because it is seen as distinct from the surrounding society. According to the provisions of the Directive, aspects related to gender, including gender identity, should be taken into account in determining membership of a social group.
As regards the first condition, the Advocate General observes that the biological sex of the woman in question can be linked to an inborn characteristic "which is not subject to change" within the meaning of the Directive. As regards the second condition, he states that gender is also a sociological concept and account must be taken of the inequalities which are constructed by societies on the basis of biological differences and which may change over time. Accordingly, the Advocate General considers that women, simply by virtue of being women, are an example of a social subgroup defined by innate and immutable characteristics that may be perceived differently by society in certain countries of origin if they would be exposed there to acts of severe spousal violence that are common in some communities.
The Advocate General also concludes that acts of persecution that are associated with particular victims allow for the "self-identity" of a given "social group" to be characterized. The Qualification Directive specifically refers to acts that are clear examples of gender-based violence because they target a person because of his or her gender or disproportionately affect persons of a particular gender. The Advocate General states, in addition, that where acts of persecution committed by a non-State actor are at issue, it must be verified that the State of origin has the ability and will to provide effective protection for the victims. In that connection, the competent national authority must establish whether there is a causal link between, on the one hand, the person's membership of a particular social group and, on the other, the lack of protection by the authorities of the state of origin.
Lastly, as regards the grant of subsidiary protection, the Advocate General considers that if the competent national authority finds that, on return to the country of origin, the national faces the risk of being executed in the name of honour or of being the victim of torture or inhuman or degrading treatment as a result of domestic violence, those acts constitute 'serious harm' within the meaning of the Qualification Directive. In this context, the person concerned may be granted subsidiary protection. In order to determine whether this risk is justified, the competent national authority is required to establish whether the authorities in the country of origin, or the parties or organisations which control it, provide protection against such serious harm.
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