The Court while making references to the reports from the European Union Agency for Asylum and the United Nations High Commissioner for Refugees recognized the current situation for Afghan women and girls under the Taliban Regime. It held that these reports indicated a presumption of refugee status recognition for Afghan women and girls due to widespread persecution based on gender. Given this context, the Court held that for Afghan women applicants, national authorities may not need to establish specific risks of persecution beyond factors related to nationality and gender. [Para 57] In its conclusion, the Court interpreted Article 4(3) of Directive 2011/95 as not requiring competent national authorities to consider factors beyond ‘gender’ and ‘nationality’ when assessing whether discriminatory measures against women in their country of origin amount to persecution under Article 9(1) of the directive. This interpretation applies specifically to the individual assessment of applications for international protection from women, particularly in light of the current situation for Afghan women and girls. [Para 58]
The ECJ’s approach in AH & FN represents a paradigm shift toward what scholars call ‘transformative constitutionalism.’ By recognizing ‘gender’ as sufficient grounds for asylum and acknowledging the cumulative effect of discriminatory measures as persecution, the ECJ has moved beyond the traditional, state-centric approach to refugee protection. This is a progressive shift from its own jurisprudence, X and X v Belgian, (2017) wherein, the ECJ left the responsibility for granting humanitarian visas to the Member States.
The Court’s approach is also particularly transformative in its holistic overseas chinese in europe data consideration of women’s rights, drawing from multiple international conventions and the EU Charter of Fundamental Rights. This is evident in the Court’s statement that these measures ‘blatantly and relentlessly deny Afghan women fundamental rights related to human dignity on account of their gender’ and ‘reflect the establishment of a social structure based on a regime of segregation and oppression in which women are excluded from civil society and deprived of the right to lead a dignified daily life in their country of origin.’ [para 44]
Since their takeover in 2021, the Taliban has issued various decrees wherein they have prohibited Muslim girls from education, working anywhere, any involvement in political or public institutions, and imposed restrictions on their travel that Afghan women shall not leave home without ‘real need’ and if they do they must be accompanied with a mahram/male guardian, with a proper ‘hijab’. Muslim Women are also prohibited from entering public areas, including parks, gyms, and public baths. Muslim health workers are not only prohibited from travelling without a mahram, but women patients without a hijab are denied healthcare, transportation, and even basic things like groceries. The recent Taliban’s Law on the Promotion of Virtue and Prevention of Vice (a.k.a. New Morality Rule) is another blow to women’s rights as it imposes severe punishment for Afghan women inter alia including bare singing or speaking outside their homes.