Does systemic discrimination make all women refugees? Consolidating gender-based asylum in the EU

Abstract

Women have been persecuted due to factors relating directly and exclusively to their gender throughout history, yet this fact is not reflected in the protection thereof. Because gender is not an articulated basis for refugee status, it has been more difficult for women to prove that they have a well-founded fear of persecution qualifying them for international protection. This thesis explores how EU refugee law should be interpreted in the matter of gender-based asylum claims, and whether systemic discrimination against women in their country of origin is sufficient to grant them refugee status solely based on their gender in the European Union. This research is based around three recent rulings by the Court of Justice of the European Union, all of which expanded the idea of gender-based refugee status in the Union. The author will clarify how EU refugee law should be interpreted following these rulings and discuss the practical implications of a new interpretation, which includes women from countries of origin where they are faced with a general risk of persecution being granted refugee status without an individual assessment procedure, i.e. on a prima facie basis. The thesis will analyse whether these rulings will result in gender-based refugee status becoming a legally binding common standard in the Union, and what this would entail for both Afghan women, who one of the rulings directly concerned, and other groups of women at risk of gender-based persecution. The author will discuss the limits of the influence of the precedent and how the provisions are likely to be applied in practice in a continent characterised by refugee deterrence rather than protection. Two methods are used to gain a comprehensive understanding of how the matter of group-based refugee status for women might be dealt with: the legal doctrinal method, which allows for an inquiry into the EU legal framework, and the future scenarios approach. Using the second method, three future scenarios will be presented, all of which represent possible repercussions of the CJEU’s rulings in 2024, the likelihood of which depend on how Union and Court politics shape the development of the area of law. This research concludes that it is possible for women to be granted refugee status solely based on their gender and nationality in the EU, and that it is justified to determine this status on a prima facie basis when a general risk of persecution in their country of origin is established. It also finds that there is basis for the third presented scenario, which entails the CJEU continuing to develop the common standards in the EU, which solidifies gender-based refugee status and would make the interpretation applicable to more groups of women at risk, such as women from Iran