Hélène Raspail is an associate professor in public law (authorized to supervise research) at the University of Le Mans. She teaches various branches of international and European law and notably established a University Diploma in "Foreigners, Refugees, and Stateless Persons Law" in 2018, which she currently directs. She regularly publishes articles and commentaries on general international law, international human rights law, and refugee law. Additionally, she serves as a judge-assessor at the National Court of Asylum, appointed by the United Nations High Commissioner for Refugees.
Within the European Union, there is a common European asylum system. European Union law thus harmonizes the conditions of international protection across all member states. It specifies criteria for determining whether a person falls within the scope of refugee status under an international convention, the 1951 Geneva Convention, as well as within the scope of a protection known as “subsidiary protection,” specific to European Union law. These details are outlined in a document called the “Qualification” directive, which must be transposed into the laws of member states. If a domestic court, responsible for asylum matters in a state, encounters a serious question regarding the interpretation of a provision of this directive, it must refer this “preliminary” question to the Union judge for interpretation.
In this case, the question was posed in the context of a dispute between the Bulgarian Refugee Agency and a woman of Turkish origin, a victim of domestic violence, who sought refugee status. The refugee status under the 1951 Geneva Convention provides certain protection when individuals face persecution in their country of origin, but this requires that the persecution be motivated by specific criteria. The Convention recognizes five grounds: race, nationality, religion, membership in a particular social group, and political opinions. If someone faces real danger but their persecutor does not act for any of these reasons, they may only be eligible for subsidiary protection. While this protection has guarantees similar to refugee status, they are not strictly equivalent. This is why the precision of these grounds by the European Union directive, and its interpretation, is crucial for determining the scope of refugee status.
Here lies the heart of the problem: do women who are victims of domestic violence in their country experience sufficiently serious harm to fall within the scope of international protection? In which field of international protection does this situation fall? Within the scope of the Geneva Convention? On what grounds? Can it be considered that they fear persecution due to their membership in a social group: that of women? If not, could it fall under subsidiary protection? The questions posed by the Bulgarian judge revolved around these issues.
Some women experiencing violence that can be considered sexist in their country may sometimes qualify for refugee status, but based on grounds not specific to them. For example, this is the case for Iranian women who do not wear the veil or Afghan women who do not adhere to Taliban precepts. The latter could be protected by considering that the persecutions have a political or religious motive. However, women victims of domestic violence do not fit into this scenario. The question arises here as to whether sexist persecution can be recognized as such.
For now, in European Union law, and particularly in French jurisprudence, women, without further specification, have never been considered as a social group. In other words, the feared violence is not considered motivated by a sexist character, and this sexist character is not seen as a ground falling within the scope of the Geneva Convention. However, even though gender is not precisely listed in the Geneva Convention, the “Qualification” directive specifies that gender-related issues should be taken into account for defining the social group, just as issues related to sexual orientation have long been considered, especially in cases of persecution of homosexuals and transgender individuals, who are then protected by refugee status based on their membership in a social group. For women so far, the violence they fear has never been considered persecution based on their membership in such a group. This aspect is problematic since, for a long time, the United Nations Refugee Agency (UNHCR) saw no problem in defining women as part of a social group in its initial Guidelines dating back to 2008: “Sex may appropriately be included as a category of social group, with women being a clear example of a social group defined by innate and immutable characteristics, frequently treated differently from men. Their characteristics also identify them as a group in society, exposing them to different treatment and standards in certain countries.” According to the UNHCR, as soon as a woman is persecuted because she is a woman, it can be easily considered that she fears due to her membership in a social group.
To understand well, it should be noted that the definition of the social group includes two criteria. The first is intrinsic: to belong to a social group, the group must be defined by innate, immutable characteristics that cannot be rejected. For a woman, this is either her biological sex or her gender. The second is extrinsic: the group must be perceived as different by the surrounding society, discriminated against, stigmatized. In some societies, it is clear that women are treated differently from men and face very strong discriminations.
Therefore, the point of contention seems to rest on the group dimension, and that is why French jurisprudence shows reluctance: there would be a fear of having to protect half the population of a state. In reality, the notion of a social group simply allows identifying a group that is treated differently. It then allows protecting only the members of this group who are at risk of persecution, not all members of this group.
Thus, it is not about protecting all women in a country. This actually means that if these women are treated differently in their country, they belong to a social group, and if they face persecution there, they should be protected by refugee status.
The CJEU jurisprudence dated January 16, 2024, marks a significant victory: in this decision, the CJEU also considered that the concept of a social group should include women, and consequently, they could be persecuted based on their gender.
They fulfilled both the intrinsic criterion [“being of the female sex constitutes an innate characteristic”] and the extrinsic criterion [“women may be perceived differently by the surrounding society”]. The CJEU also specifies that the determination of the social group is independent of persecution: there is a social group as soon as women are “recognized as having a distinct identity in that society, notably due to social, moral, or legal norms prevailing in their country of origin.” There is no need for another “common trait” to define a group, such as having escaped a forced marriage.
This affiliation only implies the possibility of seeking the protection of refugee status, not the automatic granting of such protection. To achieve this, the fears of persecution for the individual must be assessed. In the case of violence against women and therefore domestic violence, a certain degree of severity must be reached.
The last point of this decision relates to the protection from authorities. To access international protection, persecutions do not necessarily have to originate from the State: family or community circles can be responsible for mistreatment. This is evident in cases of domestic violence. However, it must be demonstrated that the country of origin did not want or was unable to protect the victim. Therefore, the asylum judge will examine whether protection was available in the country of origin to determine if the person can benefit from international protection. The question arises: should a woman have sought help from her country’s authorities before fleeing? Unfortunately, most women victims of domestic violence in problematic countries leave without necessarily seeking protection from the authorities, such as filing a complaint, because they know their efforts have no chance of success. Does the fact that they did not seek this protection deprive them of any international protection? According to the CJEU, the answer is no: in certain countries—subject to confirmation by objective, reliable, recent geopolitical data on the situation in the relevant country—the protection from authorities will be considered ineffective and therefore not required. In other words, if contacting the police and filing a complaint is futile for these women, it must be established that there is a lack of protection from the state of origin. For some states, this lack of protection arises from a severely deteriorated internal situation—such as armed conflict, a coup d’état, etc. Sometimes, the state may also tolerate persecutions experienced by women (as is likely the case in Turkey in this matter). And obviously, when the state is also the actor of persecutions against women, as in Afghanistan or Iran, there will be no protection to consider. It is worth noting that in some countries like Saudi Arabia, women accused of adultery can be sentenced by the judiciary to be stoned. Therefore, women cannot seek the protection of such authorities. In these cases, without even needing to file a complaint, a woman can seek the protection of refugee status.
Several texts influenced the CJEU’s decision on January 16, 2024. According to Article 78 of the Treaty on the Functioning of the European Union (TFEU), which pertains to the common asylum policy, the common European asylum system must be interpreted in light of the Geneva Convention and all other relevant treaties. Among these, the CJEU identified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women and the Istanbul Convention.
Adopted by the Council of Europe in 2011, the Istanbul Convention addresses violence against women. In its Article 60, it states that states must take legislative or other measures necessary for gender-based violence against women to be recognized as a form of persecution under the Geneva Convention and as a serious harm for the purposes of subsidiary protection.
It does not explicitly state that women must be protected by refugee status or subsidiary protection, but rather that sexist violence must be recognized as sufficiently serious to warrant protection. Nevertheless, the CJEU relied on this provision as a strong element in its judgment on January 16, 2024. The Istanbul Convention had just been approved by the Council of the European Union on June 1, 2023, and thus entered into force within the European Union on October 1, 2023. The Court’s decision, by expanding the possibilities for the international protection of women, gave it practical effect in European Union law.
Until now in France, only women fleeing forced marriages, girls fearing female genital mutilation (FGM), or women who had escaped from prostitution networks could benefit from the protection of the Geneva Convention due to their membership in a specific social group. The National Court of Asylum had a very narrow conception of the notion of a social group applied to women, and until now, the concept of persecution based on gender had never been identified as a whole. Those who feared domestic violence could only benefit from subsidiary protection, which is less protective than refugee status. This is mainly because the associated residence permit has a shorter duration, it does not allow for the principle of family unity, and it only applies within the European Union.
Recognizing the gender-based nature of the violence suffered is also positive for the future: if states conduct a comparative legal analysis and observe that all European Union member states now grant refugee status to these women under the Geneva Convention, it will encourage them to adopt an equally broad interpretation of the social group, allowing for the consideration of gender-related violence.
The National Court of Asylum (CNDA) is an appellate court that hears, in the first and final instance, appeals against decisions rejecting international protection made by the French Office for the Protection of Refugees and Stateless Persons (OFPRA). This administrative authority is responsible for conducting individual interviews and making an initial decision regarding the request for international protection. Those denied asylum can then appeal to the CNDA to have the OFPRA’s decision annulled. It is a “full-content” appeal, which, in the case of annulment of the rejection decision, does not lead to a referral back to the administrative authority. Therefore, when the CNDA annuls an OFPRA decision, it itself makes the protection decision.
The CNDA is a specialized administrative court for international protection requests. Administrative courts and administrative courts of appeal, on the other hand, have jurisdiction over all other issues of immigration law (residence, removal) but not asylum matters. The Court is subject to the oversight of the Council of State, which can consider legal arguments raised against its decisions but cannot rejudge the facts.
The Court currently operates with judgment panels that are typically collegiate. Within these panels, there are three categories of judges: a president who is either a judicial magistrate or an administrative judge or from the Court of Auditors, and two assessor judges. The latter are appointed by the Council of State based on their specific qualifications in asylum law and by the United Nations High Commissioner for Refugees (UNHCR) upon the Council of State’s approval. These judges are independent; they do not receive instructions from the UNHCR but only undergo initial and ongoing training, both legal and geopolitical, ensuring quality expertise.
It is more the functioning of the CNDA that is likely to evolve with the entry into force of the asylum and immigration law. Its competencies remain unchanged.
Article 70 of the law does indeed eliminate the principle of collegiality in judgment panels. Until now, the CNDA only decided by a single judge in exceptional cases, such as in accelerated procedures, for example, involving nationals of countries on the list of safe countries of origin established by the OFPRA’s Board of Directors. The single judge could then refer the case to a collegial panel if they considered the matter sensitive or complex. Article 70 reverses this principle, making the exception the rule. The issue is that many judges are strongly attached to collegiality, which is a guarantee of good administration of justice. However, the Constitutional Council did not consider that the fact that the Court decides with a single judge violated the right to defense in its decision on the asylum and immigration law of January 25, 2024. The types of cases handled by the CNDA may require specific knowledge of asylum law and the situation in the countries of origin. They involve judging the overall credibility of an applicant, which can be delicate without collegiality. Nevertheless, the content of Article 70 is vague and gives the Court significant discretionary power: it is specified that it can, on its own initiative or at the request of the applicant, refer the case to a collegial panel if the case “raises a question that justifies it.” The criterion for referral is therefore extremely vague. Moreover, to sit as a single judge, a temporary president must have at least six months of experience in a collegial panel. If the single judge rule were widely applied, it would obviously be difficult to find enough judges with sufficient experience to preside over judgment panels.