The Case of Two Afghan Women
Posted: Mon Feb 17, 2025 8:39 am
On 4th October, the Third Chamber of the European Court of Justice in AH & FN v. Federal Office for Immigration and Asylum held that ‘gender’ and ‘nationality’ alone are sufficient grounds for a country to grant asylum to Afghan women. The ECJ also classified the discriminatory policies imposed by the Taliban regime against Afghan women as ‘acts of persecution’, providing grounds for refugee status recognition. Thus, in essence, the Court held that every Afghan woman is a refugee/a victim of persecution simply based on being a ‘woman’ from Afghanistan. The ECJ decision is the second ray of hope in line, considering the recent ground-breaking move by a group of countries i.e., Australia, Canada, Germany, and the Netherlands to file a case against Afghanistan before the International Court of Justice (see, Wigard’s analysis here), alleging violations of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) over gender-based discrimination (see here), following the Taliban’s brutal repression of women and girls.
In this contribution, I examine the ECJ’s reasoning in AH & FN and contend that the ECJ’s approach embodies both transformative and feminist constitutionalism, marking a significant evolution in legal thinking about systemic gender discrimination. I conclude that by recognizing the cumulative effect of discriminatory measures against Afghan women as constituting ‘acts of persecution,’ the Court has set a precedent that could reshape asylum policies and advance women’s rights globally.
The case concerned two Afghan women, AH and FN, who sought international overseas chinese in europe data protection in Austria. AH, born in 1995, fled to Iran after her father attempted to sell her, later moving through Greece before entering Austria in 2015. FN, born in 2007, had never lived in Afghanistan and applied for protection in Austria in 2020 after fleeing Iran, where she lived without legal status. The Federal Office for Immigration and Asylum (FOIA) granted both women subsidiary protection but denied them refugee status, citing a lack of credibility in AH’s case and no real risk of persecution for FN. Both women appealed, arguing they had adopted Western values and lifestyle, and that the Taliban’s return to power in 2021 had drastically changed the situation for women in Afghanistan.
The Federal Administrative Court dismissed their appeals, stating that their adopted Western lifestyle was not so essential to their identity that they couldn’t renounce it to avoid persecution. The case then reached the Supreme Administrative Court, which sought clarification from the ECJ on two key points; (1) whether the Taliban’s cumulative measures against women constitute ‘acts of persecution’ under EU Directive 2011/95, and (2) whether Afghan women can be granted refugee status based solely on their gender and nationality without individual assessment. The Supreme Administrative Court noted that while individual measures might not constitute serious breaches of fundamental rights, their combined effect could potentially be severe enough to justify refugee status.
In this contribution, I examine the ECJ’s reasoning in AH & FN and contend that the ECJ’s approach embodies both transformative and feminist constitutionalism, marking a significant evolution in legal thinking about systemic gender discrimination. I conclude that by recognizing the cumulative effect of discriminatory measures against Afghan women as constituting ‘acts of persecution,’ the Court has set a precedent that could reshape asylum policies and advance women’s rights globally.
The case concerned two Afghan women, AH and FN, who sought international overseas chinese in europe data protection in Austria. AH, born in 1995, fled to Iran after her father attempted to sell her, later moving through Greece before entering Austria in 2015. FN, born in 2007, had never lived in Afghanistan and applied for protection in Austria in 2020 after fleeing Iran, where she lived without legal status. The Federal Office for Immigration and Asylum (FOIA) granted both women subsidiary protection but denied them refugee status, citing a lack of credibility in AH’s case and no real risk of persecution for FN. Both women appealed, arguing they had adopted Western values and lifestyle, and that the Taliban’s return to power in 2021 had drastically changed the situation for women in Afghanistan.
The Federal Administrative Court dismissed their appeals, stating that their adopted Western lifestyle was not so essential to their identity that they couldn’t renounce it to avoid persecution. The case then reached the Supreme Administrative Court, which sought clarification from the ECJ on two key points; (1) whether the Taliban’s cumulative measures against women constitute ‘acts of persecution’ under EU Directive 2011/95, and (2) whether Afghan women can be granted refugee status based solely on their gender and nationality without individual assessment. The Supreme Administrative Court noted that while individual measures might not constitute serious breaches of fundamental rights, their combined effect could potentially be severe enough to justify refugee status.