As we celebrate International Women’s Day, it is imperative to reflect on the struggles of women worldwide—especially those fleeing persecution and seeking asylum. While International and EU refugee law theoretically allows for a gender-sensitive interpretation, the reality on the ground has often failed to provide adequate protection to women facing gender-based persecution. Recent case law from the Court of Justice of the European Union (CJEU) has signaled a much-needed shift, setting a precedent that must be upheld and expanded upon.
Historically, the 1951 Refugee Convention did not explicitly recognize gender as a ground for persecution. Women fleeing forced marriages, domestic violence, or systemic oppression have often been denied asylum due to a lack of legal clarity. While international organizations such as the UNHCR have pushed for a gender-sensitive interpretation, national authorities have been slow to adapt, failing to recognize women as a “particular social group” entitled to protection or failing to recognize extreme forms of gender discrimination as persecution.
However, the 2024 rulings by the CJEU mark a turning point in gender-sensitive asylum law. In WS, the CJEU explicitly recognized that, depending on the conditions in a given country, women as a whole may qualify as a “particular social group” under the Refugee Convention, refuting the long-standing argument that the size of the group precludes such recognition. In K & L, the Court affirmed that gender equality is a fundamental right within asylum law, emphasizing that women’s ability to live free from forced marriage, gender-based violence, and ideological coercion is central to their legal protection. In AH & FN, the Court recognized that systematic discrimination—such as the Taliban’s severe restrictions on Afghan women’s rights—can constitute persecution. This acknowledgment is groundbreaking, as it establishes that patterns of gender-based oppression can meet the threshold for refugee status. More significantly, the AH & FN ruling allows for refugee status to be granted to Afghan women without an individual assessment, relying instead on general country conditions: this is a crucial step in removing bureaucratic barriers and ensuring effective protection for women at risk of systemic persecution.
Beyond legal breakthrough, this jurisprudence is also a call to action. Policymakers, judges, and asylum officers must implement and operationalise this jurisprudence to secure a framework that acknowledges the unique vulnerabilities women face. Women seeking refuge from gender-based persecution should no longer be subjected to additional layers of scrutiny. This call to action should be seen within the broader context of the European Union’s recent efforts to advance gender equality, including from a legislative perspective. The fact that these judgments were issued in the same year as the adoption of the EU Directive on combating violence against women and domestic violence is particularly significant. The stride for gender-sensitive asylum law is far from over, but these legal developments are an important step towards achieving it.
Dr. Türkan Ertuna Lagrand is an Assistant Professor of EU Law in the Department of International and European Law of Utrecht University.
Dr. Salvatore Nicolosi is a tenured Senior Assistant Professor in European and International Law at Utrecht University Law School.
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