Opinion of the Advocate General — ECLI:EU:C:2023:856
Date: 2023-11-09
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-608/22 – 1 
Case C-608/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
22 September 2022 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
14 September 2022 
Appellant on a point of law: 
AH 
Respondent authority: 
Bundesamt für Fremdenwesen und Asyl 
Subject matter of the main proceedings 
Qualification for being a refugee in accordance with the Asylgesetz 2005 (2005 
Law on asylum; ‘the AsylG 2005’). 
Subject matter and legal basis of the request 
Interpretation of Article 9(1)(a) and (b) of Directive 2011/95/EU of the European 
Parliament and of the Council of 13 December 2011 on standards for the 
qualification of third-country nationals or stateless persons as beneficiaries of 
international protection, for a uniform status for refugees or for persons eligible 
for subsidiary protection, and for the content of the protection granted (‘Directive 
2011/95); Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is the accumulation of measures taken, supported or tolerated in a State by a 
de facto government actor and consisting, in particular, of the fact that women 
EN 
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– are denied participation in political office and political decision-
making processes, 
– are provided with no legal means to be able to obtain protection from 
gender-based and domestic violence, 
– are generally at risk of forced marriages; even though they have been 
prohibited by the de facto government actor, women are not afforded 
effective protection against forced marriages and such marriages are 
sometimes performed with the participation of de facto government 
actors in the knowledge that it is a forced marriage, 
– are not allowed to engage in gainful employment or are allowed to do 
so only to a limited extent, mainly at home, 
– have difficulties in accessing health facilities, 
– are fully or largely denied access to education (for example by 
allowing girls only a primary school education), 
– are not allowed to be or move about in public without being 
accompanied by a man (who must be of a certain family relationship) 
or, at most, are permitted to do so only a certain distance from home, 
– must completely cover their bodies and veil their faces in public, 
– may not take part in any sports, 
as referred to in Article 9(1)(b) of Directive 2011/95/EU of the European 
Parliament and of the Council of 13 December 2011 on standards for the 
qualification of third-country nationals or stateless persons as beneficiaries of 
international protection, for a uniform status for refugees or for persons eligible 
for subsidiary protection, and for the content of the protection granted (recast), to 
be regarded as sufficiently severe as to affect a woman in a similar manner as 
described in Article 9(1)(a) of that directive? 
2. Is it sufficient, for the granting of asylum status, that a woman is affected by 
those measures in the country of origin merely on the basis of her gender, or is it 
necessary to assess a woman’s individual situation in order to determine whether 
she is affected by those measures – to be considered in their entirety – within the 
meaning of Article 9(1)(b) of Directive 2011/95/EU? 
Provisions of European Union law relied on 
Directive 2011/95/EU of the European Parliament and of the Council of 
13 December 2011 on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status 
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for refugees or for persons eligible for subsidiary protection, and for the content of 
the protection granted; in particular Articles 4 to 6, 9, 10 and 13 
Provisions of national law relied on 
Bundesgesetz über die Gewährung von Asyl (2005 Federal law concerning the 
granting of asylum; ‘the AsylG 2005’), in particular Paragraphs 2 and 3 
Succinct presentation of the facts and procedure in the main proceedings 
1 AH was born in 1995 and is a national of Afghanistan. Following her entry into 
Austria, she lodged an application for international protection under the AsylG 
2005 on 31 August 2015. 
2 During initial questioning, she stated that her reason for fleeing was that her father 
was a drug addict. He had wanted to sell her in order to finance his addiction. He 
was a gambler and aggressive. One day, ‘the mullah’ came and announced that he 
was going to marry her. As her mother did not want this, AH and her mother had 
fled to Iran. She lodged the application for international protection in Austria 
because her husband was already living here. 
3 In its decision of 26 March 2018, the Bundesamt für Fremdenwesen und Asyl 
(Federal Office for Immigration and Asylum) rejected her application in so far as 
she requested the granting of asylum status. However, the authority granted her 
subsidiary protection status and, consequently, a fixed-period residence 
entitlement. 
4 The authority assumed that AH had left Afghanistan at the age of approximately 
13 to 14 and had subsequently lived in Iran with her mother and two sisters until 
2015. During a stay in Greece, she married a man (who is also an Afghan national 
and was granted subsidiary protection status in Austria) in accordance with 
tradition. The Federal Office for Immigration and Asylum gave detailed reasons 
as to why it deemed AH’s arguments regarding her reason for fleeing to be 
implausible. AH had also not been able to credibly demonstrate that she was 
threatened with asylum-relevant persecution in her country of origin. However, 
she was to be granted subsidiary protection status because she had no family in 
Afghanistan and was a minor. It was assumed that she would not be able to meet 
her basic needs or establish a livelihood. With the exception of her father, her 
entire family lived in Austria. Therefore, neither repatriation to her home region 
nor to other parts of Afghanistan should be considered. 
5 AH lodged an appeal against that decision before the Bundesverwaltungsgericht 
(Federal Administrative Court), in so far as she was thus denied asylum status. In 
addition to challenging the Federal Office for Immigration and Asylum’s 
evidentiary reasoning regarding her stated reason for fleeing, she also argued that 
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the authority had not addressed ‘her Western outlook or outlook based on 
fundamental rights’. 
6 By letter of 30 August 2021, AH made the additional submission that the 
information relating to the situation in Afghanistan that had previously been 
available was now ‘largely to be considered outdated due to the recent seizure of 
power by the Taliban in Afghanistan’. After the Taliban came to power, the risk of 
people corresponding to the known risk profiles being subjected to asylum-
relevant persecution had increased dramatically. The risk of group persecution, for 
example of women or members of the Hazara ethnic group, had also increased 
greatly. Based on past experience, it is to be expected that the Taliban will resume 
and further expand its regime of terror with its infamous human rights violations, 
in particular against women and the Hazaras. 
7 The mere fact that AH is an Afghan woman should therefore lead to the granting 
of asylum. 
8 By judgment of 5 October 2021, the Federal Administrative Court dismissed the 
appeal on the merits lodged by AH as unfounded in accordance with 
Paragraph 3(1) of the AsylG 2005 and declared that lodging an appeal on a point 
of law under Paragraph 133(4) of the Bundes-Verfassungsgesetz (Federal 
Constitutional Law, Austria; ‘the B-VG’) was inadmissible. 
9 The Federal Administrative Court – like the authority before it – deemed AH’s 
statements regarding the threat of a forced marriage arranged by her father to be 
implausible. Furthermore, on the basis of the circumstances of AH’s life as 
described in its decision and her lifestyle in Austria, the Administrative Court took 
the view that AH had not adopted a ‘Western lifestyle’ that had become such an 
essential part of her identity that she could not be expected to suppress this 
behaviour in her home country in order to escape the threat of persecution for 
failing to observe the prevailing political or religious norms. In addition, the 
Federal Administrative Court considered the question of whether AH was at risk 
of persecution in the country of origin solely because she was a member of the 
Hazara ethnic group, which it answered in the negative. However, the 
Administrative Court did not address the argument set out above, according to 
which the general situation for women since the (renewed) seizure of power by 
the Taliban in Afghanistan was such that AH, being a woman, should be granted 
asylum status for that reason alone. 
10 AH brought the present appeal on a point of law against that decision. 
The essential arguments of the parties in the main proceedings 
11 In her appeal on a point of law, AH repeats the argument already put forward in 
the previous proceedings, as set out above, that she, as a woman, should have been 
granted asylum status solely on the basis of the general situation of women in 
Afghanistan prevailing since the Taliban came to power. She claims that she ‘is at 
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risk of asylum-relevant persecution simply because she is a woman’. She therefore 
asserts that her current way of life is not relevant to the granting of asylum status. 
The fact that the Federal Administrative Court considered that she did not lead a 
‘Western-oriented’ lifestyle was therefore not decisive. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 AH thus invokes – in a manner permissible under Paragraph 3(2) of the AsylG 
2005 and Article 5(1) of Directive 2011/95 – persecution based on events which 
have taken place since she left her country of origin (objective sur place ground). 
13 AH refers, first, to the case-law of the Verwaltungsgerichtshof (Supreme 
Administrative Court) concerning the situation of women in Afghanistan under 
the former rule of the Taliban, which was handed down before the relevant 
provisions in this case governing asylum matters were adopted in Community law 
and (later) EU law. Second, AH takes the view that, even under the current 
provisions of EU law, in particular Article 9(1)(b) of Directive 2011/95, an 
approach such as that expressed in the earlier case-law of the Supreme 
Administrative Court should be taken due to the multitude of serious violations of 
fundamental human rights, to which women are (also) entitled. On the basis of the 
numerous country reports on the current living conditions of Afghan women, there 
is no doubt that the structural approach of the Taliban against this group of 
persons described in those reports, ranging from various forms of discrimination, 
drastic restrictions on movement and de facto exclusion from public life, coupled 
with draconian and arbitrary punishments for non-compliance, to sexual violence 
in the form of forced marriages and killings, is on a scale comparable to that of the 
Taliban regime of the 1990s. The accumulation of these various measures against 
women in Afghanistan that violate fundamental human rights makes it impossible 
for women in general to lead a dignified life. It should therefore be assumed, 
based on the country reports, that group persecution of women is being carried out 
in Afghanistan solely on the basis of their gender. 
14 In the earlier case-law of the Supreme Administrative Court relating to the 
situation in Afghanistan under the former rule of the Taliban, it was sufficient, for 
the purpose of granting asylum, that the person concerned was affected by the 
measures in question solely on the basis of being a woman. If the discriminatory 
rules in the country of origin themselves reached the degree of persecution 
required under asylum law, it was irrelevant whether there were any additional 
disproportionate consequences in the case of failure to comply with those rules or 
whether the asylum seeker concerned was expected not to comply. 
15 That line of case-law has not been further pursued by the Supreme Administrative 
Court in recent times – primarily in view of the changed circumstances in 
Afghanistan following the fall of the Taliban at the end of 2001. 
16 However, in its (more recent) case-law, it has stated that women who would be 
persecuted for living a ‘Western-oriented lifestyle’ if returned to their country of 
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origin can claim asylum. This is understood to mean a way of life they have 
adopted which reflects the recognition, enjoyment or exercise of their fundamental 
rights. That lifestyle must also have become such an essential part of the women’s 
identity that they cannot be expected to suppress this behaviour in their home 
country in order to escape the threat of persecution for failing to observe the 
prevailing political and/or religious norms. It is irrelevant, in that regard, whether 
such persecution is carried out by the country of origin. Private persecution may 
also be relevant to the extent that the country of origin is unwilling or unable to 
provide protection from such persecution. 
17 However, not every change in the lifestyle of an asylum seeker during her stay in 
Austria, which could no longer be maintained if she were to return to her country 
of origin, means that the asylum seeker must therefore be granted international 
protection. Rather, the decisive factor is a fundamental and correspondingly 
consistent change in the asylum seeker’s way of life, which expresses the 
recognition, enjoyment or exercise of her fundamental rights and has become an 
essential part of her identity, and which it would not be possible for her to 
maintain if she returned to her country of origin. 
18 In such a case, it is therefore necessary to examine the circumstances of the 
individual case on the basis of specific findings on the asylum seeker’s current 
way of life and – with reference to current country reports – on the expected 
reactions in the country of origin to the way of life she continues to strive for, in 
order to be able to assess the existence of a ground under the Geneva Convention. 
19 In accordance with Paragraph 3(1) of the AsylG 2005, the granting of asylum 
status is subject to the condition that it is credible that the alien would be at risk of 
persecution as defined in Article 1(A)(2) of the Geneva Convention on Refugees 
(‘the Geneva Convention’) in the country of origin. 
20 Paragraph 2(1), point 11, of the AsylG 2005 defines persecution as any act of 
persecution defined in Article 9 of Directive 2011/95. 
21 Article 4(3) of Directive 2011/95 states that the assessment of an application for 
international protection is to be carried out on an individual basis. 
22 According to the settled case-law of the Supreme Administrative Court, the 
central aspect of persecution in the country of origin as defined in Article 1(A)(2) 
of the Geneva Convention is well-founded fear of persecution. A fear can only be 
well-founded if it is objectively understandable in the light of the specific situation 
of the asylum seeker, taking into account the circumstances in the persecuting 
state. What matters is not whether a particular person actually experiences fear in 
a specific situation, but whether, in that situation, a reasonable person would 
experience fear for one of the reasons under the Convention. Persecution is to be 
understood as unjustified interference of considerable intensity in the personal 
sphere of the individual to be protected. Interference is of considerable intensity if 
it is likely to make it unreasonable to expect a person to avail himself or herself of 
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the protection of the country of origin. The risk of persecution is closely linked to 
the concept of well-founded fear and is the point of reference for that concept. A 
risk of persecution is to be assumed if there is a significant probability of 
persecution; the remote possibility of persecution is not sufficient. 
23 In the present context, it should also be borne in mind that, according to the case-
law of the Supreme Administrative Court, it is not only possible to infer a risk of 
persecution within the meaning of Paragraph 3(1) of the AsylG 2005, read in 
conjunction with Article 1(A)(2) of the Geneva Convention, exclusively from 
individual acts of persecution committed against a specific person. It may also be 
based on the fact that measures are regularly targeted against third parties because 
of a characteristic that the person concerned shares with those persons, so that 
there is a reasonable assumption that he or she could (also) be exposed to such 
measures irrespective of individual aspects. If the members of certain groups of 
persons are threatened with group persecution that goes beyond the general 
dangers of a civil war, such persecution directed against an entire group of persons 
would be reason for each individual member to fear persecution directed 
individually against himself or herself on account of his or her membership of that 
group. In such a case, it is sufficient, for the required individualisation of a risk of 
persecution, to establish credibly that he or she belongs to that group. 
24 The Supreme Administrative Court does not consider the provisions of EU law at 
issue here to be so specific that it is possible to state without doubt whether the 
situation referred to by AH and described in Question 1 would mean that the 
conditions of Article 9(1)(b) of Directive 2011/95 must be deemed to be fulfilled. 
Moreover, on the basis of the relevant reports, this situation cannot be considered 
to be merely theoretically possible (for a description of the prevailing 
circumstances relating to the situation of women in Afghanistan since the Taliban 
came to power, see, for example, Länderinformation der Staatendokumentation – 
Afghanistan [Version 8] [Country information from the Country of Origin 
Information Unit – Afghanistan [Version 8]] by the Country of Origin Information 
Unit of the Federal Office for Immigration and Asylum; Länderreport 48 
Afghanistan, Die Situation von Frauen, 1996 – 2022 [Country report 48 
Afghanistan, The situation of women, 1996 – 2022] published by the Country-
specific analysis department of the German Federal Office for Migration and 
Refugees; also European Union Agency for Asylum – EUAA, Country Guidance: 
Afghanistan; EUAA, Afghanistan – Targeting of Individuals, Country of Origin 
Information Report, August 2022; UNAMA HRS [United Nations Assistance 
Mission in Afghanistan’s Human Rights Service], Human Rights in Afghanistan 
15 August 2021-15 June 2022; SIGAR [Special Inspector General for Afghanistan 
Reconstruction], Quarterly Report to the United States Congress – Jul 2022; 
Amnesty International, Death in Slow Motion – Women and Girls under Taliban 
Rule). 
25 Article 9(1)(b) of Directive 2011/95 states that the accumulation of various 
measures, including violations of human rights, must be sufficiently severe as to 
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affect an individual in a similar manner as mentioned in Article 9(1)(a) of that 
directive. 
26 In accordance with Article 9(1)(a) of Directive 2011/95, an act must be 
sufficiently serious by its nature or repetition as to constitute a severe violation of 
fundamental human rights, in particular the rights from which derogation cannot 
be made under Article 15(2) of the European Convention for the Protection of 
Human Rights and Fundamental Freedoms (‘the ECHR’). 
27 The rights referred to in Article 15(2) ECHR are those under Article 2 – Right to 
life (except, under Article 15(2), in respect of deaths resulting from lawful acts of 
war), Article 3 – Prohibition of torture, Article 4(1) – Prohibition of slavery and 
forced labour and Article 7 – No punishment without law. 
28 The measures mentioned in Question 1 do not seem to be automatically covered 
by those provisions, at least not in their entirety. It could be argued that although 
such measures lead to a condemnable situation for women in those states that 
subject them to restrictions of that kind, the measures – even in their entirety – 
could not be considered of such gravity as to place them on a par with the 
violation of, in particular, the fundamental rights referred to in Article 15(2) 
ECHR. For the avoidance of doubt, it should be stressed at this point that – as AH 
emphasises and as has been held in the abovementioned case-law of the Supreme 
Administrative Court on the former rule of the Taliban – this assessment concerns 
the measures and the situation created as a result of them being ordered or 
approved in a country of origin as such, without it being necessary to expect the 
asylum seeker concerned to act contrary to those measures or to expect additional 
disproportionate consequences in the event of her acting contrary to them. 
29 The fact remains, however, that Article 9(1)(a) of Directive 2011/95 does not 
necessarily appear to require that the measures be on a par with the violation of 
the rights set out in Article 15(2) ECHR, since the rights contained in 
Article 15(2) ECHR are mentioned in Article 9(1)(a) of Directive 2011/95 only by 
way of example (arguendo: ‘in particular’). 
30 On the other hand, it could therefore also be argued that the situation created by 
the accumulation of the measures mentioned in Question 1, which in particular 
lead to significant restrictions of fundamental rights other than those mentioned in 
Article 15(2) ECHR, has such a substantial impact on the lives of the women 
concerned that it must be considered, as a whole, within the meaning of 
Article 9(1)(a) of Directive 2011/95, to which Article 9(1)(b) refers, to be such a 
serious impairment of the living circumstances for women as to constitute a severe 
violation of fundamental human rights. Moreover, the effects of the accumulation 
of those measures, in their entirety, on women’s consequently significantly limited 
opportunities to shape their own lives – in that regard, AH claims that this leads to 
the de facto exclusion of women from public life – could be regarded as a 
situation amounting to inhuman or degrading treatment within the meaning of 
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Article 3 ECHR and Article 4 of the Charter of Fundamental Rights of the 
European Union. 
31 Since the measures referred to in Question 1 are taken, promoted or tolerated by 
the Taliban, which exercises de facto governmental power in Afghanistan, 
precisely because the persons concerned are women, there does not appear to the 
Supreme Administrative Court to be any further doubt that there is a connection, 
as required by Article 9(3) of Directive 2011/95, between the reasons mentioned 
in Article 10 of that directive and – if Question 1 is answered in the affirmative – 
the acts of persecution as qualified in Article 9(1) of Directive 2011/95 or the 
absence of protection against such acts. In that case, it does not seem to be of any 
further significance whether these measures – that target women precisely because 
of their gender – are taken for religious, political or other motives. 
32 If it were to be affirmed that the situation in a state, as described in Question 1, is 
enough in itself to constitute the persecution of women, it would – as AH claims – 
be sufficient for the granting of asylum that the asylum seeker in question would 
have to submit to such a life. Unlike the situation where an assessment is carried 
out on the basis of a woman’s current specific life circumstances as to whether, in 
a particular case, the actual way of life which has become an essential part of her 
identity (considered to be ‘Western’ in the country of origin) would provoke 
reactions which, in terms of their intensity, should undoubtedly be classified as 
acts of persecution (such as acts of violence directed against her), if the measures 
prescribed, promoted or tolerated by an actor holding state power were in 
themselves to be classified as persecution, it would – as the Supreme 
Administrative Court held with regard to the earlier position under national law, 
according to which no consideration was to be given to the provisions of EU law – 
be irrelevant whether there were any additional disproportionate consequences in 
the case of failure to comply with those measures or whether the asylum seeker 
concerned was expected not to comply. Nor would it be relevant to assess whether 
the punishment directed against the asylum seeker for failure to comply would be 
imposed because she has an attitude that runs counter to the political and/or 
religious order prevailing in her country of origin or because such an attitude 
might be attributed to her. 
33 However, in the light of the case-law cited above, according to which a risk of 
persecution is (only) to be assumed if there is a significant probability of 
persecution, and the remote possibility of persecution is not sufficient, and in the 
context of Article 4(3) of Directive 2011/95, according to which applications for 
international protection must be assessed on an individual basis, it is necessary to 
consider whether granting asylum status to an asylum seeker without examining 
her current individual situation, even if the accumulation of the measures referred 
to in Question 1 would in principle have constituted persecution, is still 
sufficiently related to the purpose of that protection status. 
34 Indeed – as referred to in Question 2 – it could be argued, even if the existence of 
persecution in principle due to the accumulation of measures were to be 
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confirmed, that it is not sufficient that every – in the present case, Afghan – 
woman is in essence affected by the measures due to her gender. The question 
which arises is whether a woman who does not oppose, or even supports, the 
measures in question would be in need of protection by another state. In that 
respect, this woman – at least from her point of view and according to the effects 
of the measures as perceived by her – would not be adversely affected by the 
measures in question. However, that question is also relevant in cases where a 
woman rejects the measures and perceives them as disadvantageous, but some of 
those measures do not have any further effect on her current specific life situation 
(for example, if the danger of a forced marriage, which is potentially present in 
itself, should be regarded as currently non-existent in the specific case because the 
asylum seeker is already married, or if the woman concerned does not aspire to 
engage in gainful employment, pursue further education or take part in sports). 
However, it then appears questionable whether the accumulation of those 
measures – even though she is in principle subject to them because of her gender – 
would be sufficiently severe as to affect her in a similar manner as described in 
Article 9(1)(a) of Directive 2011/95. 
35 According to such an interpretation, the accumulation of measures would always 
relate only to the particular case. Depending on the specific circumstances, it 
would also be possible for one or more measures in a particular case to be 
considered to have little or no impact on the lifestyle of the woman concerned, 
meaning that the accumulation of the (remaining) measures could not be classified 
as persecution in the case in question. 
36 Such an approach could also be covered by the wording of Article 9(1)(b) of 
Directive 2011/95, which states that there must be an accumulation of measures 
which is sufficiently severe ‘as to affect an individual in a similar manner as …’. 
37 Accordingly, the fact that this provision refers to ‘a person’ could mean that it is 
necessary to always include the specific circumstances of the individual case in 
the assessment in order to determine the existence of individual concern. That 
would mean that, even if the measures mentioned in Question 1 were, in their 
entirety, to be classified as persecution in principle, the existence of such 
persecution could be ruled out in a particular case. However, it could also be that, 
in using the words ‘a person’, the EU legislature intended to refer not to the 
specific asylum seeker in the proceedings, but to the perception of ‘a person’, 
which corresponds to that of an average human being.