BRIEFING

The gender dimension of asylum

claims
SUMMARY
In recent years, the European Union has faced a significant number of asylum applications, with over
513 000 applications received in the first half of 2024 alone. Women and girls make up a substantial
proportion of asylum seekers, with one in three asylum-seekers being female.
In international law, the 1951 Geneva Refugee Convention is the main instrument regulating asylum.
The Convention on the Elimination of All Forms of Discrimination against Women and the Istanbul
Convention provide a framework for protecting the rights of women who seek protection.
The EU has developed a common European asylum system that has gradually incorporated gender-
sensitive elements in legal texts such as the Qualification Directive, the Asylum Procedures Directive
and the Reception Conditions Directive. These directives offer special protection to vulnerable
individuals, including women and children.
The Court of Justice of the European Union (CJEU) has played a crucial role in advancing a gender-
sensitive approach in EU asylum law, acknowledging the specific experiences and circumstances of
women and other vulnerable individuals seeking protection in the EU. The CJEU has recognised
gender-based violence as a form of persecution and grounds for asylum or subsidiary protection. It
has also acknowledged the importance of considering the individual circumstances and experiences
of asylum seekers, particularly women and girls, who may face persecution or harm owing to their
adherence to certain values or lifestyles. This aligns with a more gender-sensitive approach in EU
asylum law and policy in recent years. Nevertheless continued progress is needed to address the
human rights challenges faced by women and girls in asylum procedures.

IN THIS BRIEFING
• Introduction
• International law
• EU legal framework
• CJEU recent case law on gender-based
asylum claims

EPRS | European Parliamentary Research Service

Author: Anita Orav
Members' Research Service
PE 767.209 – January 2025 EN
EPRS | European Parliamentary Research Service

Introduction
In recent years, protection needs have continued to rise as millions have been forced to flee their
homes as a result of new and ongoing conflicts, climate conditions, violence, persecution and
geopolitical unrest. In the first half of 2024, the EU+ (the 27 EU Member States plus Switzerland and
Norway) received 513 000 asylum applications. According to the European Union Agency for Asylum
(EUAA), this number is stable compared to the number registered for the same period in 2023, which
was the highest since the peak of migrant arrivals in the 2015 to 2016 period. In 2023, more men than
women sought asylum in EU countries (Figure 1). Men aged 18 to 34 accounted for 41.7 % of the total
number of first-time applicants. The proportion of boys and girls under 14 years of age was the same,
while there were more boys (5.1 %) than girls (1.5 %) in the 14-17 age range.
Figure 1 – First-time asylum applicants in the EU by age and sex (non-EU citizens), 2023, (%)

Note: First-time applicants with missing information about their sex (275 persons) or age (65 persons) are not
featured in the graph.
Source: Eurostat (online data code: migr_asyappctza).
Earlier studies have suggested that one in three asylum-seekers in the EU is a woman. However,
women are not guaranteed consistent, gender-sensitive treatment of their claims due to significant
disparities among Member States in processing gender-related asylum claims. This includes aspects
such as considering the gender dimension in the status determination process, asylum procedure,
interviews, reception, and detention conditions.
Research shows that gender plays a significant role in migration decision-making. While the 'push
and pull' framework of factors is commonly used to analyse migration flows, studies have found that
these factors affect men and women differently and therefore require a more nuanced
understanding of migration patterns.
The United Nations High Commissioner for Refugees (UNHCR) has long recognised the special
protection needs of women and girls in refugee and asylum procedures. UNHCR asserts that under
international standards, it is 'an established principle' to interpret the refugee definition with an
awareness of the gender dimension. This helps determine refugee status more accurately.
The Council of Europe also acknowledges that gender-related persecution (targeting someone
because they are women) and gender-based violence (such as rape) can be grounds for claiming
international protection. However, national authorities do not always sufficiently take into account
the gender dimension when assessing asylum claims. The system continues to see persecution
through the lens of the male experience, which is often different from the way women and girls
experience it. In May 2022, the Committee of Ministers of the Council of Europe adopted a
recommendation on the protection of the rights of migrant, refugee and asylum-seeking women and
girls. The recommendations define measures to better respond to the needs of these women and
the challenges they face.
The EUAA agrees that gender considerations should be integrated into the asylum procedure, 'even
when a specific asylum claim is not clearly gender-related per se'. The agency also compiles country
of origin information (COI) to help national authorities fully understand and assess protection-
related needs, including the specific needs of women and girls in certain countries, conflict or
displacement situations. For example, the EUAA refers to the link between food insecurity and

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gender-based violence in countries such as Afghanistan, Bangladesh, Burundi, the Central African
Republic, Ethiopia, Rwanda and Somalia. In the latter, violence against women and girls, particularly
intimate partner violence and rape, increased by 200 % between 2021 and 2022. EU asylum
authorities should take these circumstances into account to be able to make accurate and fair
decisions in asylum procedures, and support policy-making.

International law
At the international level, standards providing a framework for protection are set out in a number of
instruments of international refugee, human rights and humanitarian law. The interpretations of
these instruments have evolved to consider the unique circumstances of women, girls and LGBTI
individuals. Specifically, the provisions of the UN Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), adopted in 1979, should be applicable in all international
refugee legislation.
In 1998, the Parliamentary Assembly of the Council of Europe (PACE) issued a recommendation on
the situation of refugee women in Europe, emphasising that 'Member States of the Council of Europe
should eliminate all gender-related discrimination among refugees, and adapt the treatment of
women refugees to their specific situation and requirements'.
Geneva Refugee Convention
The main instrument of international refugee law is the 1951 United Nations Geneva Convention and
its subsequent 1967 Protocol. Refugees are a special class of migrants who under international law
deserve specific protection by their host state. Article 1 of the Geneva Convention, as modified by
the 1967 Protocol, defines a refugee as a person who 'owing to well-founded fear of being
persecuted for reasons of race, religion,
nationality, membership of a particular social
group or political opinion, is outside the Definition of the term 'refugee'
country of his nationality and is unable or, The Geneva Convention definition of refugees remains
owing to such fear, is unwilling to avail himself dominant in the Treaty on the Functioning of the
of the protection of that country'. This European Union (Article 78) and the EU Charter of
definition implies that several qualifying Fundamental Rights (Article 18). The EU has an
conditions must be met for someone to be extensive set of legislation on asylum-seekers, which
recognised as a refugee: (1) being outside has often been critically reviewed by the UNHCR. The
their home country; (2) having a well-founded EU's Qualification Directive stipulates that persons
fear of persecution (being at risk of harm is who are not refugees but are eligible for international
not enough without discriminatory protection should be treated equally to refugees.
persecution); (3) being unable to receive
protection from their own state against the
persecution they fear. The definition of refugees was actually meant to exclude internally displaced
persons, economic migrants, victims of natural disasters, and persons fleeing violent conflicts that
do not involve discrimination amounting to persecution.
The convention was drafted before women's rights were recognised as a fundamental aspect of
international law, and the original text lacked a gender perspective. According to a 2012 European
Parliament comparative analysis on gender-related asylum claims in Europe, the convention was
drafted at a time when there was 'complete blindness to women, gender, and issues of sexual
inequality'. The Refugee Convention's non-discrimination provision does not explicitly mention sex
or gender, leading to a delayed recognition of women's rights in international refugee law. In
response, the UNHCR developed gender-specific criteria and guidelines, which have evolved over
time. Initially, women were viewed as a vulnerable group, often associated with children. The focus
then moved to identifying risk factors that expose women and girls to specific threats. In 1997, there
was a shift to a 'two-pronged' approach, whereby targeted actions addressed women's specific
needs and rights, while integrating women's rights into mainstream instruments. Scholars have

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argued for a complete overhaul of international legislation to ensure women asylum-seekers are
recognised as refugees and successfully settled. Despite these efforts, progress in international
refugee law and policy on gender-related claims is considered 'nascent, contingent, and fragile'.
Istanbul Convention
The Council of Europe Convention on preventing
and combating violence against women (also Commitments under the Istanbul Convention
known as the Istanbul Convention) came into Article 60 – Gender-based asylum claims
force in 2014. It is the first legally binding
international instrument focused on preventing 1. Parties shall take the necessary legislative or
and combating violence against women and girls other measures to ensure that gender-based
at the international level. The convention violence against women may be recognised as a
establishes a comprehensive framework of legal form of persecution within the meaning of Article
and policy measures aimed at preventing such 1, of the 1951 Convention relating to the Status of
violence, supporting victims and punishing Refugees and as a form of serious harm giving
perpetrators. rise to complementary/subsidiary protection.
One of its aims is to 'contribute to the elimination
2. Parties shall ensure that a gender-sensitive
of all forms of discrimination against women and
interpretation is given to each of the Convention
promote substantive equality between women
grounds and that where it is established that the
and men, including by empowering women'. It
persecution feared is for one or more of these
identifies gender-based violence as an extreme
grounds, applicants shall be granted refugee
form of discrimination and contains a whole
status according to the applicable relevant
chapter dedicated to women in the context of
instruments.
migration.
As of January 2024, the convention has been 3. Parties shall take the necessary legislative or
signed by all EU Member States, and ratified by other measures to develop gender-sensitive
22 (Austria, Belgium, Croatia, Cyprus, Denmark, reception procedures and support services for
Estonia, Finland, France, Germany, Greece, asylum-seekers as well as gender guidelines and
Ireland, Italy, Latvia, Luxembourg, Malta, gender-sensitive asylum procedures, including
Netherlands, Poland, Portugal, Romania, refugee status determination and application for
Slovenia, Spain and Sweden). Bulgaria, Czechia, international protection.
Hungary, Latvia, Lithuania and Slovakia have not ARTICLE 61 – Non-refoulement
ratified the convention.
1. Parties shall take the necessary legislative or
One of its first states parties, Türkiye, notified its other measures to respect the principle of non-
withdrawal from the convention in March 2021, refoulement in accordance with existing
which took effect on 1 July 2021. Other Council obligations under international law.
of Europe member states are actively working
towards ratification, and countries outside the 2. Parties shall take the necessary legislative or
Council of Europe have expressed their interest other measures to ensure that victims of violence
in joining, which is a possibility under the against women who are in need of protection,
convention. regardless of their status or residence, shall not
be returned under any circumstances to any
The Convention also allows for the possibility of country where their life would be at risk or where
EU accession. The EU signed the convention in they might be subjected to torture or inhuman or
June 2017. During its meeting of 21 February degrading treatment or punishment.
2023, the Council requested the European
Parliament's consent to adopt the decisions on Source: Council of Europe.
the ratification of the convention. In the plenary
session of May 2023, the Parliament granted its
consent with a significant majority for the EU to
accede to the convention. On 1 June 2023, the Council finalised the ratification process by adopting
two decisions on the conclusion of the Istanbul Convention by the EU. One decision pertained to

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matters related to judicial cooperation in criminal matters, asylum and non-refoulement, while the
other focused on institutions and public administration bodies within the EU. These decisions
explicitly stated that the EU would only accede to the convention in areas falling under its exclusive
competences. Consequently, on 1 October 2023, the Istanbul Convention entered into force for the
European Union.
The Istanbul Convention recognises violence against women as a violation of human rights and an
extreme form of discrimination against women. It covers various forms of gender-based violence
against women, which includes to violence targeting women because of their gender or
disproportionately affecting them. Gender-based asylum claims are specifically addressed in
articles 60 and 61 of the convention.

EU legal framework
The EU has historically been considered a proactive stakeholder in advancing equality between
women and men and fighting gender-based discrimination. In the EU, the Charter of Fundamental
Rights is the central element of protection, which establishes that the right to asylum shall be
guaranteed with due respect for the Geneva Convention and in accordance with the Treaty
establishing the European Community. The charter also sets out that everyone is equal before the
law, that any discrimination based on sex and sexual orientation is prohibited and that equality
between men and women must be ensured in all areas.
Over the past 20 years, the EU has emerged as a significant player in international asylum law,
producing numerous secondary law instruments and a substantial body of case law in Member States
related to the Geneva Convention. However, the connection between EU legislation on gender
equality and international asylum law remains underdeveloped and inconsistent.
Common European asylum system
Similarly to international law, the EU legal framework has evolved to give increasing recognition to
the gender aspects of migration and asylum. The key acts comprising the common European asylum
system (CEAS) incorporate gender-sensitive elements, although overall they are still considered
weak in terms of recognising both gender-specific persecution and gender-related persecution. To
remedy this shortcoming, some of the texts have been expanded in recasts. On 29 January 2020,
the European Commission announced in its work program a New Pact on Asylum and Migration.
Presented on 23 September 2020, the pact provides a comprehensive approach, bringing together
policies in the areas of migration, asylum, integration, border management and the EU's relationship
with third countries. It includes new legislative and non-legislative instruments and sets out a way
forward to conclude negotiations on the asylum and return reforms proposed by the Commission in
2016 and 2018 on which the co-legislators had already found political agreement but did not
conclude negotiations. After finalising negotiations, the acts included in the pact were published in
the Official Journal of the EU on 22 May 2024. The regulations will enter into application on 1 July
2026. Until then, the asylum-related recast directives from 2011 and 2013 will remain in force. These
directives contain the following gender-related elements.
• Regarding the determination of refugee status, the Qualification Directive
2011/95/EU8 clarifies that gender-based persecution and persecution by non-state
actors are valid grounds for refugee status. Additionally, gender, including gender
identity and sexual orientation, should be considered when defining a particular social
group (recital 30). Member States must also consider 'child-specific forms of
persecution' when assessing applications from minors (recital 28) and provide
subsidiary protection status for individuals who are not eligible for refugee protection,
but demonstrate 'substantial grounds' for believing that they would face a real risk of
serious harm if returned to their country of origin (Article 20).

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• With regard to asylum claims, the Asylum Procedures Directive 2013/32/EU aims to
ensure that all Member States apply a common, high-quality standard when examining
applications. This includes an obligation to identify applicants who might require
specific procedural guarantees due to their age, gender, sexual orientation or sexual
identity (recital 29), and to ensure substantive equality between female and male
applicants (recital 32). Procedures are required to be gender-sensitive, meaning that
interview conditions should allow applicants to speak about gender-based
persecution, that family members should not be present while this is happening
(Article 15), that applicants should have access to an interviewer of the same sex, and
that staff dealing with claims should have training or access to gender expertise
(Article 10). Any procedures based on the concept of 'safe third country' or 'safe
country of origin' must take into account the complexity of gender-based persecution
(recital 32). Those in need of special assistance due to age, disability, illness, sexual
orientation, torture, rape or other serious forms of psychological, physical or sexual
violence should be provided with support and given time to explain their claims
(Article 24).
Regarding the conditions in which asylum applicants are to be received, the Reception
Conditions Directive 2013/33/EU regulates that they should have access to housing,
food, health, medical and psychological care, and employment while their claims are
being examined. The category of 'vulnerable persons' requiring specific protection,
which initially included pregnant women, single parents of minors, and victims of
torture, rape or other forms of physical, psychological or sexual violence, was
extended in the recast to include victims of human trafficking and female genital
mutilation (FGM). For these persons, Member States are required to conduct
individual assessments to identify specific reception needs and provide access to
psychological support. The directive also sets out common rules for the detention of
asylum-seekers, including restrictions on the detention of vulnerable persons (Article
11). Article 18 stipulates that gender and age-specific concerns must be taken into
account.

Studies suggest that the CEAS – neither in its current form nor in its proposed future form – entirely
meets the standards of the Istanbul Convention. Nevertheless, the convention has provided an
impetus for making EU legislation, case law and practices more gender-sensitive in order to offer
more effective protection to women refugees and asylum-seekers. The Istanbul Convention can thus
be seen as a complement to EU instruments protecting victims of gender-based violence, and as
having the power to enhance the use of existing and new tools in the area of asylum. Commentators
express hope that the EU's accession to the convention will 'foster a gender-sensitive approach in
other legislative instruments … and encourage the CJEU to mainstream gender equality in its asylum
case law'.
On 14 May 2024, the co-legislators adopted Directive (EU) 2024/1385, which sets out EU-wide rules
aimed at tackling violence against women and domestic violence. Recital 71 explicitly states that
'victims experiencing intersectional discrimination are at a heightened risk of violence. They could
include women with disabilities, women with dependant residence status or a dependant residence
permit, undocumented migrant women, women applicants for international protection, women
fleeing armed conflict, women affected by homelessness, women with a minority racial or ethnic
background, women living in rural areas, women in prostitution, women with low income, women
detainees, lesbian, gay, bisexual, trans or intersex persons, older women or women with alcohol and
drug-use disorders. Victims experiencing intersectional discrimination should consequently receive
specific protection and support'. This targeted support is outlined in Article 33, which includes the
possibility for third-country nationals who are victims to 'be kept separate from persons of the other
sex in detention facilities for third-country nationals subject to return procedures or accommodated
separately in reception centres for applicants for international protection'. Member States must

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enact the laws, regulations and administrative provisions required to comply with this directive by
14 June 2027.

Recent CJEU case law on gender-based asylum claims

In the past, CJEU rulings rarely addressing gender-related elements of asylum cases. However, in
recent years the Court has been instrumental in advancing a gender-sensitive approach in EU asylum
law through its rulings and interpretations of EU legislation. In 2024, the Court recognised the
specific experiences and circumstances of women and other vulnerable persons seeking protection
in the EU through a number of rulings, briefly described below.
In WS (C-621/21) of 16 January 2024, the CJEU recognised that gender-based violence constitutes
persecution and grounds for asylum or subsidiary protection. This ruling is a significant development
in the interpretation of EU asylum law, particularly in relation to the protection of women who are
victims of private-sphere gender-based violence. The CJEU considered that women as a whole may
be regarded as belonging to a social group within the meaning of the recast Qualification Directive.
This means that women who are persecuted or at risk of persecution due to their gender may qualify
for refugee status. The Court held that the recast Qualification Directive must be interpreted
consistently with the Istanbul Convention, which recognises gender-based violence against women
as a form of persecution. This approach is also consistent with the UN's CEDAW. Under the
Qualification Directive, persecution due to membership in a particular social group is valid if one is a
member of a group that comprises individuals who share an immutable characteristic, an
unchangeable common background, or an identity-defining trait or belief that they should not be
forced to renounce. Furthermore, the group must be perceived as distinct within its country of
origin. In WS, the Court broadly interpreted these requirements, allowing women facing domestic
violence to be considered a social group under the EU asylum framework.
The concept was further clarified in the case K.L. v Staatssecretaris van Justitie en Veiligheid
(C-646/21) of 11 June 2024, particularly in relation to the Qualification Directive and the concept of
a 'particular social group'. In this case, the Court was asked to consider whether two Iraqi teenage
girls, who had been living in the Netherlands for five years and had adopted a 'westernised lifestyle,'
could be considered members of a particular social group due to their belief in the fundamental value
of gender equality. The CJEU ultimately held that the girls' belief in gender equality could indeed be
a characteristic that defines a particular social group, underscoring the importance of gender
equality in this context. The judgment highlights the significance of gender equality as a fundamental
value in the EU and its potential to define a particular social group in the context of asylum law. It
also calls to consider the individual circumstances and experiences of asylum seekers, particularly
women and girls, who may face persecution or harm due to their adherence to certain values or
lifestyles.
On 4 October 2024, the Court delivered its judgment in two joined cases: AH (C-608/22) and FN
(C-609/22) v Bundesamt für Fremdenwesen und Asyl (Afghan women). The Court had to determine
whether Afghani women, who were subjected to a series of restrictive, state-imposed or state-
supported discriminatory measures, could be granted refugee status solely based on their gender
without the need for an individual evaluation of their circumstances. The ruling confirmed that
women in Afghanistan, who face severe restrictions on their rights and freedoms under the Taliban
regime, can be considered a particular social group subject to persecution. The Court emphasised
that the treatment of women in Afghanistan, which includes denial of education, employment, and
healthcare, as well as restrictions on their movement and dress, constitute acts of persecution. This
ruling aligns with the two previously described ones and represents the culmination of recent CJEU
case law that has increasingly adopted a gender-sensitive approach to protecting refugees.
The CJEU's ruling is also in line with recent trends in Member States' national policies of granting
refugee status to Afghan women solely based on their gender. Since December 2022, some Member
States have been granting refugee status to all female Afghan asylum-seekers due to the

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deteriorating situation in Afghanistan and the high level of discrimination against women. In
September 2024, Australia, Canada, Germany, and the Netherlands jointly declared their intention
to bring Afghanistan before the International Court of Justice (ICJ), citing the Taliban's violent
oppression of women and girls as severe gender discrimination. This is the first time a country has
used the CEDAW to file a lawsuit against another nation at the ICJ for gender-based discrimination.
These judgments demonstrate the CJEU's increasing recognition of the complexities of gender-
based and intersectional persecution. The Court now acknowledges that both private and public
acts of gender-based violence, as well as cumulative discriminatory measures and the adoption of a
reformed identity centred on gender equality, can all be legitimate grounds for seeking protection.
The Afghan women ruling establishes a crucial precedent that may influence the direction of refugee
law in Europe and beyond. Therefore, it represents a significant step forward in addressing urgent
human rights issues and promoting social justice.
MAIN REFERENCES
Warin, C., 'Gender in European Union Asylum Law: The Istanbul Convention as a Game Changer?',
International Journal of Refugee Law, Vol. 36(1-2), March/June 2024, pp. 93–105.
European Union Agency for Asylum, Protecting women and girls in the asylum procedure, July 2023.
Shreeves, R., Gender aspects of migration and asylum in the EU: An overview, EPRS, European
Parliament, March 2016.

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