Women who are victims of gender-based violence can qualify for refugee status
The Court of Justice of the European Union (CJEU) has ruled that women facing gender-based violence in their home country can be considered a ‘particular social group’ and qualify for refugee status. The decision came in response to a case brought to the Court by Bulgaria involving WS, a Turkish national who sought protection in Bulgaria, citing forced marriage, beatings, and threats from her husband and family. This was initially rejected by Bulgarian authority and later dismissed on appeal, based on the conclusion that the domestic abuse and death threats could not be linked to a convention reason, nor did she claim to be a victim of these acts due to her gender.
WS’s subsequent application made with new evidence, based on a fear of persecution due to her membership of a ‘particular social group’ of women facing domestic violence, was accepted.
What is the meaning of ‘particular social group’?
To establish ‘particular social group’ status, the CJEU referred to Article 10(1)(d) of the Qualification Directive, which requires the group to share an innate characteristic; 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; and, have a distinct identity in the relevant country. The Administrative Court of Sofia sought clarity on applying this in cases of gender-based violence committed by non-State actors.
Outcome:
The CJEU acknowledged that women exposed to such violence due to their gender could be seen as a ‘particular social group’, within the meaning of Article 10(1)(d) of the Qualification Directive.
The court cited the Advocate General’s view, emphasising that this could encompass women victimised by forced marriage. In societies where such marriages prevail, a woman declining or terminating a marriage may be acknowledged as part of a particular social group, provided “they are stigmatised and exposed to the disapproval of their surrounding society resulting in their social exclusion or acts of violence.”
The Court emphasised considering factors such as women’s legal position, political and social rights, cultural norms, harmful practices prevalence, available protection, and potential risks upon return when assessing a woman’s fear of persecution. Even if not meeting refugee status criteria, a woman might qualify for subsidiary protection if facing real risks from family or community due to cultural or religious norms.
The CJEU aligned its interpretation with international law, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Istanbul Convention. Despite Bulgaria not ratifying the Istanbul Convention, the Court held that the Qualification Directive should be consistent with both, as EU member states, including the UK, are bound by these treaties.
What does this mean for the UK:
While the CJEU’s decision isn’t binding in the UK due to the post-Brexit period, the ‘cumulative’ test in the Nationality and Borders Act 2022 mirrors EU law, making the Court’s views persuasive. As the UK has ratified CEDAW and the Istanbul Convention, the decision is relevant, providing potential support for women seeking international protection based on gender-based violence, aligning with UNHCR standards and offering hope for positive outcomes in such cases.