ECJ strengthens Afghan women's right to asylum

The European Court of Justice has strengthened the protection of Afghan women: the repression of the Taliban regime is so massive that they are generally considered to be persecuted. This means they are entitled to asylum in the EU.

There are now many reports from the EU and the United Nations about how miserable the situation is for women in Afghanistan. Since the Taliban came back to power in 2021, women in Afghanistan have been threatened. They are systematically discriminated against just because they are women.

Basic political, economic and social rights of girls and women are trampled on: they have no access to education or the labor market, no protection from male violence and forced marriage, are not allowed to do sports and hardly receive any medical care.

Judges see systematic persecution

Can the Taliban regime's measures therefore be classified as persecution? This is what two women say who sued for their right to asylum in Austria. One fled Afghanistan with her mother in 2015. The reason she gave for fleeing was that her father wanted to marry her against her will when she was 14 years old.

The other plaintiff was born in 2007. She has never lived in Afghanistan. However, when she applied for asylum, she stated that her human rights would be at risk if she returned to the country. She is not allowed to go to school or work. But she wants to live in freedom and have the same rights as men.

The Austrian Administrative Court submitted the cases to the European Court of Justice (ECJ). The central question to the European Court of Justice was: Do we have to consider the many discriminations that women in Afghanistan are exposed to together? So are women from Afghanistan being persecuted within the meaning of European asylum law because the situation for women in Afghanistan is generally bad and violates central rights?

ECJ: Women are denied basic rights

The European Court of Justice today ruled entirely in favor of the plaintiffs. He makes it unmistakably clear: forced marriages are to be equated with slavery and are in themselves a reason for asylum. The same applies if women are not protected against gender-based and domestic violence, for example if they cannot defend themselves in court.

In addition, the many other forms of discrimination against women in Afghanistan, from the lack of political participation to the denial of school education, must be considered together.

Taken together, they represent systematic persecution. The ECJ is very clear here. The court's press release states that women are “flagrantly denied the fundamental rights associated with human dignity.”

Personal circumstances are no longer decisive

And the Court goes further in protecting Afghan women. When examining an asylum application under EU law, the asylum authority must actually take a close look at what the personal circumstances of a woman in Afghanistan are. But that is no longer important.

The ECJ judges the situation in Afghanistan itself to be very bad and says: The asylum authorities in the EU no longer have to determine in individual cases that an applicant for asylum in Afghanistan is actually at risk of acts of persecution. It is sufficient that gender and Afghan nationality are established.

Constantin Hruschka, a law professor at the Evangelische Hochschule Freiburg and an asylum law expert, says that the protection of women from Afghanistan is now improving across Europe. The ECJ made it clear that there was a “group persecution situation” here. “So that all women who have Afghan nationality should be recognized as refugees here.” This means that the protection of these women is regulated uniformly in Europe. The asylum authorities and courts in Germany must also be guided by these principles. The consequence for asylum procedures in Germany is that “Afghan women who apply for asylum must be recognized as refugees, regardless of what their individual situation is, as long as they are Afghan citizens.”