International human rights commitments to protect victims of domestic violence: Refugee recognition as the first step for an integrated approach under EU law in Case C-621/21,Intervyuirasht organ na DAB pri MS (women victims of domestic violence)

A . International human rights obligations guiding the interpretation of EU asylum law

While the EU operates as an autonomous legal system, in the area of EU asylum law the relevant legal framework is to a large extent inspired and interrelated to international human rights law. ¹⁹ The development of the relevant legal area but also the evolution of various concepts should take places with due regard to the international human rights obligations of the Member States. Specifically, Article 78(1) TFEU which is the legal basis for the development of CEAS provides that the development of the EU asylum system should take place in accordance with the Refugee Convention and other relevant treaties. ²⁰ Similarly, Recital 17 of the Qualification Directive provides that in the application of the Directive, Member States are bound by obligations under international law instruments to which they are parties, particularly those that prohibit discrimination.

In relation to the specific instruments relevant for the present case the following should be noted. The CEDAW is the central international instrument pertinent to forms of discrimination and violence faced by women. The EU is not a party to this Convention, but all Member States are. The Istanbul Convention, on the other hand, was signed by the EU in 2017 and ratified in October 2023, even though it is has not been ratified by all the Member States. ²¹ Most importantly for the purposes of the present case, Article 60 of Istanbul Convention provides that state parties shall take measures to ensure that gender-based violence may be recognized as a form of persecution for the purposes of applying the Geneva Convention and as a form of serious harm for the purposes of granting subsidiary protection. At the same time, Bulgaria is one of the Member States that has very publicly opposed the Istanbul Convention, a fact that creates a more complicated scenario. ²² Bulgaria is not directly bound by the Istanbul Convention in its domestic law; however, indirectly, it should respect the Convention by virtue of its obligations under EU law.

Against this background the Court had to assess the relevance of CEDAW and the Istanbul Convention on the definition of gender-based violence for the purposes of the Qualification Directive. In the judgment, the Court found that both these conventions should be considered as relevant treaties for the purpose of interpretation of the Qualification Directive. The Court reminded that even though the EU is not party to CEDAW, all Member States have ratified it and are thereby bound by it. ²³ The Court also mentioned as a relevant point that the Committee on the Elimination of Discrimination against Women, which monitors the implementation of CEDAW, has suggested that the Convention complements the international protection regime applicable to women and girls. ²⁴ As for the Istanbul Convention, the Court confirmed its relevance due to its recent ratification by the EU, but also due to its subject matter and the fact that it lays down obligations coming within the scope of Article 78(2) TFEU. ²⁵ According to the Court, the fact that certain Member States, like Bulgaria, have not ratified it does not affect the fact that the Qualification Directive should be interpreted in accordance with the Convention. ²⁶ This important finding goes against the Opinion of the AG who instead held that these international treaties were irrelevant due to the fact that the EU had not ratified CEDAW, and that the Istanbul Convention was signed, but not ratified, at the time the Opinion was issued. ²⁷ Instead, the AG had exclusively focused on the Refugee Convention and the Charter as relevant instruments to guide an autonomous interpretation of gender-based violence for the purposes of EU law. ²⁸

B . Women victims of domestic violence as a particular social group

The Court went on to examine whether women or women victims of domestic violence could be considered as members of a particular social group for the purpose of refugee status recognition. To contextualize this question, the reader should bear in mind that state practice has been very diverse on this matter. While some states have addressed gender on its own as a characteristic that can lead to persecution and thereby to protection of women as a particular social group, others have instead considered groups of women (for example women at risk of female genital mutilation) as a particular social group for gender-related asylum claims. ²⁹ In order to clarify the matter for the purposes of EU asylum law and to respond to the question posed by the Bulgarian court, the Court took as a starting point Article 60 of the Istanbul Convention. According to Article 60(1), gender-based violence should be recognized as a form of persecution within the meaning of the Convention while Article 60(2) requires a gender-sensitive interpretation to the reasons of persecution provided by the Convention. Drawing on these provisions and connecting them to Article 10(1)(d) of the Qualification Directive, the Court found that being female does constitute an innate characteristic which makes women part of a particular social group. ³⁰ The Court further suggested that women who have escaped a forced marriage may be seen as having a common background that cannot be changed. ³¹ As to the second condition of membership of particular social group which relates to an externally perceived distinct identity, the Court suggested that women may be perceived as being different by the society surrounding them and thus having a distinct identity ‘in particular because of social, moral or legal norms in their country of origin’. ³² This is even more so in relation to women who share an additional common characteristic, that is, having escaped marriage. ³³ What is more, the Court held that the determination of a membership of a particular social group within the meaning of the Directive is independent from the acts of prosecution which members of the group might suffer from under Article 9 of the Directive. ³⁴ Essentially, the Court held that women as a whole, but also more specific groups of women who share additional characteristics (for example women victims of domestic violence, or women who refuse forced marriages) may be regarded as belonging to a particular social group as a reason for persecution that might lead to the recognition of a refugee status. ³⁵ This particular finding established the foundation upon which the Court based its subsequent finding in Staatssecretaris van Justitie en Veiligheid (Femmes s’identifiant à la valeur de l’égalité entre les sexes), that women who identify with Western values can also be a particular social group that is threatened with persecution for the purposes of refugee recognition. ³⁶

C . Persecution by non-state actors and absence of protection: A necessary link?

Moving to the next issue, which relates to persecution by non-state actors, the Court had to interpret the conditions of Article 9(3) of the Qualification Directive. Article 9(3) provides that there must be a link between the reasons why an asylum-seeker is persecuted and the acts of persecution or the absence of protection against such acts. The wording of the provision by the use of the term ‘or’ gave rise to the question of whether a link is demanded between the acts the applicant had suffered by her husband and the absence of protection by the Turkish authorities. To further unpack this, there are three different ways to read the provision of Article 9(3) with different causal links potentially demanded. First, the conditions of this article could be fulfilled if the applicant WS was prosecuted because of her gender and the domestic violence she had suffered was committed because she is a woman. Second, the conditions of this article could be fulfilled if the applicant, W, was prosecuted because of her gender, and the Turkish authorities failed to protect her because they neglect complaints submitted by women. Third, one could read the ‘or’ as creating a higher bar for causality. This line of reading would demand that WS was prosecuted because of her gender, the violence she suffered by her ex-husband was committed because she is a woman, and the failure of the Turkish authorities to protect her also related to her being a woman, meaning that she would be protected from such violence if she was a man. By reading through these alternative lines of interpretation in the first and second scenario, a causal link is demanded between the reason for persecution and the act of persecution or between the reason for persecution and the absence of protection by the state authorities. On the contrary, in the third scenario, the bar for accessing protection is set higher, as the link is demanded between three conditions, that is the reason of persecution, the act of persecution and the absence of protection.

In the Intervyuirasht organ na DAB pri MS case, the Court opted for an interpretation that was more protective for the applicant, and which was also aligned with UNHCR Guidelines on International Protection. ³⁷ Specifically, the Court first reminded that acts of persecution perpetrated by non-state actors can fall under Article 6(c) of the Qualification Directive only if the state is unwilling or unable to provide protection under Article 7 of the Directive. ³⁸ What is more, the protection must be effective and non-temporary. ³⁹ Proceeding to the matter of causal link, the Court held that there needs to be a link between the reasons of persecution mentioned in Article 10(1) and the acts of persecution under Article 9 (1) and (2) or, alternatively, between the reasons of persecution and the absence of protection against acts by non-state actors. ⁴⁰ By this finding the Court suggested that women victims of violence could be recognized as refugees if there is a causal link between their gender and the violence they have suffered by non-state actors. This continues to be the case even if the absence of protection by the state authorities was not due to their gender, but for example due to deficits in the national system of judicial remedies. ⁴¹ Alternatively, women victims of domestic violence could be recognized as refugees if there is a causal link between their gender and the absence of protection by the state authorities. ⁴² In this second alternative, even if the violence a woman has suffered is not due to her gender, the important element is that the absence of protection is due to her gender (for example violence suffered by women in the context of a crime and absence of protection by the authorities because of gender-based discrimination in access to justice). What is missing in the more abstract justification of the Court is the more detailed reference made by the AG both to the situation in Turkey as regards victims of domestic violence and to the relevant case law of the European Court of Human Rights (ECtHR) on the matter. ⁴³

D . Serious harm by non-state actors

Finally, the Court addressed the fifth question submitted by the Administrative Court of Sofia on the concept of serious harm under Article 15(a) and (b) of the Qualification Directive and whether victims of domestic violence can fall thereunder. ⁴⁴ This question was only answered in the alternative, that is, if the referring Court did not find that WS qualified for refugee status. ⁴⁵ Under Article 2(f) of the Qualification Directive, individuals who do not qualify for refugee protection can be eligible for subsidiary protection if there are substantial grounds to believe that they would face a real risk of suffering a serious harm under Article 15 of the Directive. As serious harm, Article 15(a) refers to execution or death penalty and Article 15(b) refers to acts of torture or inhuman or degrading treatment or punishment, but the text of the provisions makes no distinction as to whether the harm is caused by state or non-state actors. ⁴⁶ The Court held that in light of the objective of protection of Article 15(a), the term ‘execution’ should be interpreted to include harm that is caused by non-state actors. ⁴⁷ Similarly, when the acts of violence perpetrated by non-state actors are not likely to result to death, those acts must be classified as torture or inhuman or degrading treatment even if they are not committed by state actors. ⁴⁸ On this matter, the Court found that the concept of serious harm does cover the circumstances of gender-based violence inflicted on women by non-state actors. ⁴⁹ In this finding, however, the Court made no reference to Articles 2 and 3 ECHR, which were invoked by the referring Court in the relevant question in order to guide an interpretation of Article 15 of the Qualification Directive. Contrary to the Court, the AG, who took a similar position, referred to the relevant case law of the ECtHR which concerned specifically the positive obligation of states to take measures to secure the protection of the right to life under Article 2 ECHR and the prohibition of torture or other inhuman or degrading treatment under Article 3 ECHR for women victims of domestic violence. ⁵⁰

A. EU asylum law against the background of international human rights

The Intervyuirasht organ na DAB pri MS case frames the contours of refugee protection against a broader background of the external constitutional commitments of the EU legal order. Indeed, on this matter CEAS differs from other EU law areas, as Article 78(1) TFEU demands the development of the common asylum policy in accordance with the Geneva Convention and other relevant treaties. The finding on the relevance of both the CEDAW and the Istanbul Convention for the definition of concepts found in EU secondary law places the CEAS in the proper context of external commitments of both the EU and the Member States regarding human rights protection. As Bornemann and Kübek suggest, the decision ‘sets the tone for reading EU refugee law in light of the international duty to combat gender-based violence and discrimination against women.’ ⁵⁹

Instead of an interpretation of the CEAS in light of the Geneva Convention and the Charter, as suggested by the AG, the Court placed EU asylum law in a dynamic international context shaped by more recent instruments which can bind the EU or the Member States. The Court did not approach the case in view of developing an autonomous concept of EU law on gender-based violence and it did not proceed in a reading of EU asylum law in view of perfecting an independent legal order. ⁶⁰ Rather, the Court employed the Qualification Directive and the ambiguity inherent in the concept of membership of a particular social group to provide an evolutionary interpretation and to integrate in EU law protection claims which are aligned with international human rights developments. ⁶¹

This decision could be seen as another building block in the dignity-based approach followed by the Court on the CEAS case law, an approach which is cognizant of the vulnerability of refugees and aligned with the international protection obligations of the Member States. ⁶² This approach is, of course, not without limits. Various scholars have expressed valid critiques on the failure of EU asylum law to uphold fundamental rights and its focus towards institutional cooperation and informalization. ⁶³ Scholars have also suggested that the Court has followed more formalist interpretations in this area, especially after the migration crisis. ⁶⁴ While such criticisms have merit, the case under analysis brought about the development of EU asylum law with due regard to the pluralism of sources that characterizes international protection. On this topic, it is important to remind oneself that the Court has consistently drawn on the UNHCR soft law as relevant for the interpretation of various concepts in EU asylum law. ⁶⁵ Finally, the finding of the Court as regards violent acts caused by non-state actors and their implications for international protection is aligned with the established case law of the ECtHR on the matter, which has found that there exist positive obligations of state parties under Articles 2 and 3 ECHR to protect women victims of domestic violence. ⁶⁶

B. The shadow of international human rights in EU law

In this final section, two contentious points raised by the Intervyuirasht organ na DAB pri MS case will be discussed. The first relates to the ‘hiding’ of the ECHR in the judgment and the second relates to the international human rights commitments to protect victims of domestic violence as they appear in EU law more generally.

On the first point of criticism, when reading the judgment, the utter absence of ECtHR case law from the justification of the Court is striking. In this regard it should be reminded that fundamental rights protection in EU law has historically developed with due regard to the obligations of Member States under the ECHR. ⁶⁷ Today reference to the ECHR is made in Article 6(3) TEU, the Charter of Fundamental Rights includes a ‘homogeneity’ clause in Article 52(3) which demands that Charter rights which correspond to rights protected by the ECHR shall have the same meaning and scope, while Article 53 mentions that nothing in the Charter shall be construed as limiting the rights protected by, among others, the ECHR. ⁶⁸ No Charter rights were of relevance in the specific case; however, the Administrative Court of Sofia did invoke ECHR rights as relevant for the interpretation of serious harm in the Qualification Directive. The finding of the Court in this matter was aligned in substance with the case law of the ECtHR. However, the Court evaded any mention to the relevant cases or to the ECHR in general. One might attempt to trace the potential influence of the ECtHR case law by reading the AG Opinion which analysed the relevant decisions both in relation to victims of domestic violence in Türkiye, but also in relation to the positive obligation of state authorities to protect victims of domestic violence from exposure to risk of persecution from non-state actors. ⁶⁹ Even if the AG Opinion influenced the finding of the Court, there is no transparency on the matter, as the Court did not refer to the paragraphs of the AG Opinion, which present and analyse the relevant case law. Such a ‘hiding’ of the relevant ECtHR case law would arguably be understandable if the Court ruled differently and presented the finding as a resulting from EU law autonomy. However, in a judgment which acknowledges the pluralist landscape of international human rights protection, and which is aligned with international case law on victims of domestic violence on a substantive level, the hiding of this cross-fertilization with the ECtHR cannot be easily explained. This is especially so since this cross-fertilization is demanded in primary law both as regards the specific convention and its interaction with human rights standards in EU law and in general, as a potentially relevant treaty in the CEAS.

The second and last point of criticism does not pertain to the reasoning followed by the Court, but rather to the protection of victims of domestic violence by virtue of international human rights commitments, as they appear in the case law. Specifically, a fragmentation appears in the way in which the Court is dealing with international human rights commitments and gender-sensitive interpretation in other fields of EU law and specifically in cases related to citizenship and migration. On this matter, it should be noted that Articles 59–61 of the Istanbul Convention provide obligations relating to the grant of autonomous residence permits to victims of domestic violence as well as the grand of subsidiary protection and the application of a gender-sensitive interpretation to the Geneva Convention. These demands of the Istanbul Convention attracted attention for having the potential to generate change as regards migrant women victims of domestic violence and their claims to residence rights. ⁷⁰ However, this potential is up against the limitations of EU migration law, which will be discussed in turn and which relate to the requirements for acquiring an autonomous residence permit as a migrant victim of domestic violence.

Already, before the adoption of the Istanbul Convention, both the Citizens’ Rights Directive and the Family Reunification Directive provided for the grant of autonomous residence permits for family members victims of domestic violence of EU and non-EU migrants respectively. ⁷¹ The reason for introducing both these provisions was to protect migrant women victims of domestic violence, who should not be threatened with losing their residence permit when trying to escape a vulnerable situation at home. ⁷² The Citizens’ Rights Directive provides that the residence permit can only be provided if the family member victim of domestic violence has sufficient resources and sickness insurance, while the Family Reunification Directive provides that the conditions for attribution of the relevant residence permit should be provided in accordance with national law. After a first conservative ruling in NA, the Court was called to decide on the compatibility of the Citizens’ Rights Directive with the Charter in X v. État belge. ⁷³ This case was decided in September 2021, a bit over a month before the Opinion 1/19 of the Court on the accession of the EU to the Istanbul Convention. Even though the Istanbul Convention was not binding the EU at the time, the Court was aware of its relevance for the purpose of safeguarding the rights of migrant women victim of domestic violence, while the Convention had already been ratified by Belgium. ⁷⁴ Nevertheless, the Court confirmed the validity of the relevant provision of the Citizens’ Rights Directive and its compliance with the Charter with no reference to international human rights obligations regarding victims of domestic violence. ⁷⁵

Relating the gender insensitive outcome of the Court in X v. État belge with the gender-sensitive reading in Intervyuirasht organ na DAB pri MS, the following point should be made. The Court has indeed produced ground-breaking rulings in the area of asylum which promote respect to human dignity and the internal and external human rights obligations of the EU and the Member States. The judgment in WS is representative in this regard. However, it is important that the internal and external commitments to human rights protection also guide the Court in the area of EU citizenship and migration. This is crucial not only in order to avoid fragmentation in the application of the Istanbul Convention and to promote the rights of victims of domestic violence in the future, but also in order to extend the constitutional commitment of the EU to fundamental rights protection under Article 2 TEU to all those who fall within the scope of EU law.