Women who experience gender-based violence considered as belonging to a ‘particular social group’ and qualify for refugee status

By Amer Zaman

on February 29, 2024

Read Time: 9 Minutes

In a development that may have significant implications even beyond the European Union (EU), the bloc’s supreme court – the European Court of Justice (ECJ) – has concluded that women who experience or who are at risk of gender-based violence in their country of origin can be regarded as belonging to a “particular social group” and be granted refugee status.

This ruling was made as a consequence of a preliminary reference that Bulgaria made to the Luxembourg-based Court in C-621/21 WS v Intervyuirasht organ na Darzhavna agentsia za bezhantsite pri Ministerskia savet.

What was the background of this case?

The original case in the ECJ related to WS, a Turkish Muslim national of Kurdish ethnicity, who sought international protection in Bulgaria. She claimed that she had been forced into marriage by her family, and that her husband had threatened and beaten her; she fled from Turkey and is now divorced from her husband.

Having left her partner and escaped to Bulgaria, WS expressed fears that if she returned to Turkey, she could be at risk of being forced to remarry or being the victim of an “honour killing”.

The Bulgarian authorities, however, turned down her initial protection claim, and she was also unsuccessful on appeal. This refusal of her claim was on the basis that the specific acts of domestic abuse and death threats that her husband and members of her family had perpetuated, could not be linked to a Convention reason. It was also raised that she had not claimed it was her gender that had caused her to be a victim of acts of persecution.

WS went on to make a further application, accompanied by new evidence. On this occasion, she based her claim on a well-founded fear that she would be persecuted by non-State actors on account of her membership of a “particular social group”. This particular social group was cited as being women who are victims of domestic violence, and women who are potential “honour killing” victims.

What are some examples of ‘particular social groups’ for asylum?

The term “particular social group”, or “PSG”, is used in matters of asylum around the world. From a global perspective, a “particular social group” can be defined as a group of persons who share a common characteristic – other than their risk of facing persecution – which often is innate or unchangeable, or which is otherwise fundamental to identity, conscience, or the exercise of one’s human rights. A group of persons who are perceived as a group by society may also be considered a PSG.

With regard to the European Union (EU) context specifically, a PSG can be considered to be a group consisting of members that share an innate characteristic, or a common unchangeable background. People may also be regarded as being in a PSG if they share a characteristic or belief that is sufficiently fundamental to their identity or conscience, that a member of the given group should not be forced to renounce that characteristic or belief.

In the EU context, it is also expected that a PSG will have a distinct identity in the relevant country because it is perceived as being different by the surrounding society.

Membership of a PSG is one of the five Convention grounds for persecution enumerated in the Geneva Refugee Convention and Protocol, Art. 1A(2). It should be noted that it is the ground with the least clarity, and is not defined by the Convention itself.

Nonetheless, this ground has been invoked in refugee status determinations. States have determined the following as constituting a “particular social group” for the purposes of the Convention:

  • Women
  • Families
  • Tribes
  • Occupational groups
  • Homosexuals

Depending on the circumstances in the country of origin, a “PSG” might include a group based on sexual orientation as a common characteristic. However, sexual orientation cannot be understood to include acts considered to be criminal under the national legislation of the EU member states.

The questions that the Bulgarian court referred to the ECJ

The Administrative Court of Sofia requested that the ECJ provide clarification on how to establish membership of a PSG in the context of asylum claims where gender-based violence and domestic violence are the basis, and in circumstances where a non-State actor is committing the violence.

The Bulgarian court asked whether the definitions in relevant international law are applicable when classifying gender-based violence against women as a ground for granting international protection under the Refugee Convention and the Qualification Directive (otherwise known as Directive 2011/95/EU, which sets out the common criteria for identifying people who require international protection in the EU).

The relevant international law definitions referred to were those under the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) and the Council of Europe Convention on preventing and combatting violence against women and domestic violence (the latter typically referred to as the “Istanbul Convention”).

Article 10(1)(d) of the Qualification Directive is relevant to cases like this one involving WS, given that it outlines two conditions that must be satisfied in order for a group to be considered a “particular social group”:

  • Members of the given group share an innate characteristic, or a common unchangeable background, 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
  • The given group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.

The above conditions need to be considered cumulatively – in other words, it is essential for both conditions to be met.

Finally, the Sofia court also questioned whether the threat of an “honour killing” constituted a “real risk of serious harm” for the purposes of granting subsidiary protection (which, in the UK, is known as humanitarian protection). This would be in situations where it has not been established that a woman who is a domestic violence victim, or a potential “honour killing” victim, belongs to a particular social group.

What is the definition of a refugee and asylum seeker?

Although the terms “refugee” and “asylum seeker” are sometimes used interchangeably, it is important to recognise that there are distinct differences in their respective meanings.

The 1951 UN Refugee Convention – to which the UK is a party – states that a refugee is a person who is unwilling or unable to go back to their country of origin “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”.

  • A refugee, then, is someone who has fled their own country due to the risk they face of serious human rights violations and persecution in their state of origin. They were subject to such severe risks to their safety and life, that they felt they had no choice but to depart their own country and seek safety in another jurisdiction, due to their own government being unwilling or unable to protect them from those dangers. Refugees have a right to international protection.
  • An asylum seeker, on the other hand, is an individual who is seeking international protection and who has applied for refugee status in a given country in accordance with the Convention, but whose claim is yet to be determined. Until their claim is determined, they will not be legally recognised as a refugee. The UN has said that every person has a right to seek asylum in another country. However, in the event that the asylum country’s authorities decide the claimant does not qualify for protection as a refugee, they will not be granted refugee status and will be at risk of deportation from that country.   

“Women, as a whole, may be regarded as belonging to a social group”

The conclusion of the ECJ in the WS case was that refugee status was “to be granted in cases where a third-country national is persecuted for reasons of race, religion, nationality, political opinion or membership a particular social group.”

The court went on to rule that “women, as a whole, may be regarded as belonging to a social group”, and that – in the event of certain conditions being met – refugee status could be granted. The court said that “this will be the case where, in their country of origin, they are exposed, on account of their gender, to physical or mental violence, including sexual violence and domestic violence.”

According to the ECJ, in situations where the conditions for granting refugee status are not met, women “may qualify for subsidiary protection status, in particular where they run a real risk of being killed or subjected to violence”. The court said this applied all the more strongly where there was a risk of such violence being “inflicted by a member of their family or community due to the alleged transgression of cultural, religious or traditional norms.”   

Does the ECJ ruling have implications for the UK?

With this case representing the first occasion the ECJ has received a preliminary reference on this issue, the court’s ruling on WS is unquestionably a crucial one for women who may seek protection in EU countries on the grounds of gender-based violence.

Some observers might understandably ask about the potential relevance and applicability of WS in the UK. This particular case was brought to the ECJ following the conclusion of the Brexit transition period, which means the ruling is not binding on the UK. The court’s judgement might still, however, be pertinent to the UK regardless.

The Nationality and Borders Act 2022, Section 33, reimposed the “cumulative” test for determining whether a given group can be considered a “particular social group”, mirroring the way in which the equivalent EU law works.

Bear in mind, too, that there is a tendency for courts around the world to look to each other on cases like these that concern matters of interpretation. So, it seems that the views expressed by the ECJ on this case should have a persuasive effect in the UK.

Plus, the UK has ratified the Istanbul Convention and CEDAW, which means that when it comes to protections for women, the country is subject to the same obligations as member states of the EU.

It needs to be acknowledged that asylum claims, including those related to potentially legally complicated matters like gender-based violence, can be challenging, with much depending on the specific circumstances of the claimant.

It can be notoriously difficult, for example, to establish the second condition of the aforementioned cumulative test, that a given group must have a distinct identity in the relevant country as a consequence of it being perceived as different by the surrounding society.

With our own in-depth knowhow and excellent track record in the handling of asylum claims here at Cranbrook Legal, if you would appreciate advice and help on issues such as those we have discussed in this article, you are welcome to reach out to our award-winning immigration experts in central London.

You can call us on 0208 215 0053, or fill in and submit our online contact form to request a free consultation.

How Can We Help You?

I would like to speak to Cranbrook Legal on the telephone.

0208 215 0053

I do not know what my immigration needs are and need to discuss my requirements.

Book A Free Consultation

I know what my immigration needs are, so I would to discuss my case.

Book An Appointment