1 This request for a preliminary ruling concerns the interpretation of Article 10(1)(d) 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 (OJ 2011 L 337, p. 9).
2 The request has been made in proceedings between the Bundesamt für Fremdenwesen und Asyl (Federal Office for Foreign Nationals and Asylum, Austria; ‘the BFA’) and AN concerning the rejection of AN’s application for international protection.
3 Article 1(A)(2) of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)) which entered into force on 22 April 1954 and was supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Geneva Convention’), provides: ‘For the purposes of the present Convention, the term “refugee” shall apply to any 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 country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …’
4 Recitals 6, 29, 30, 33, 34 and 39 of Directive 2011/95 state: ‘(6) The [conclusions of the European Council at its special meeting in Tampere on 15 and 16 October 1999] … provide that rules regarding refugee status should be complemented by measures on subsidiary forms of protection, offering an appropriate status to any person in need of such protection. … (29) One of the conditions for qualification for refugee status within the meaning of Article 1(A) of the Geneva Convention is the existence of a causal link between the reasons for persecution, namely race, religion, nationality, political opinion or membership of a particular social group, and the acts of persecution or the absence of protection against such acts. (30) It is equally necessary to introduce a common concept of the persecution ground “membership of a particular social group”. For the purposes of defining a particular social group, issues arising from an applicant’s gender, including gender identity and sexual orientation, which may be related to certain legal traditions and customs, resulting in for example genital mutilation, forced sterilisation or forced abortion, should be given due consideration in so far as they are related to the applicant’s well-founded fear of persecution. … (33) Standards for the definition and content of subsidiary protection status should also be laid down. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention. (34) It is necessary to introduce common criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States. … (39) While responding to the call of the Stockholm Programme for the establishment of a uniform status for refugees or for persons eligible for subsidiary protection, and with the exception of derogations which are necessary and objectively justified, beneficiaries of subsidiary protection status should be granted the same rights and benefits as those enjoyed by refugees under this Directive, and should be subject to the same conditions of eligibility.’
5 Article 2 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive the following definitions apply: (a) “international protection” means refugee status and subsidiary protection status as defined in points (e) and (g); … (d) “refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply; (e) “refugee status” means the recognition by a Member State of a third-country national or a stateless person as a refugee; (f) “person eligible for subsidiary protection” means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country; (g) “subsidiary protection status” means the recognition by a Member State of a third-country national or a stateless person as a person eligible for subsidiary protection; (h) “application for international protection” means a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately; (i) “applicant” means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken; …’
6 Article 4 of that directive, entitled ‘Assessment of facts and circumstances’, provides, in paragraph 3: ‘The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: … (c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; …’
7 Article 6 of that directive, entitled ‘Actors of persecution or serious harm’, provides: ‘Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in points (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.’
8 Article 7 of Directive 2011/95, entitled ‘Actors of protection’, reads as follows: ‘1. Protection against persecution or serious harm can only be provided by: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; provided they are willing and able to offer protection in accordance with paragraph 2. 2. Protection against persecution or serious harm must be effective and of a non-temporary nature. Such protection is generally provided when the actors mentioned under points (a) and (b) of paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection. …’
9 Article 9 of that directive, entitled ‘Acts of persecution’, provides, in paragraph 3 thereof: ‘In accordance with point (d) of Article 2, there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts.’
10 Article 10 of that directive, entitled ‘Reasons for persecution’, provides, in paragraph 1: ‘Member States shall take the following elements into account when assessing the reasons for persecution: … (d) a group shall be considered to form a particular social group where in particular: - members of that group share an innate characteristic, or a common background that cannot be changed, 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 - that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States. Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group; …’
11 Article 15 of that directive, entitled ‘Serious harm’, provides: ‘Serious harm consists of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’
12 Article 18 of Directive 2011/95, entitled ‘Granting of subsidiary protection status’, is worded as follows: ‘Member States shall grant subsidiary protection status to a third-country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V.’
13 Article 10 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), entitled ‘Requirements for the examination of applications’, provides, in paragraph 2: ‘When examining applications for international protection, the determining authority shall first determine whether the applicants qualify as refugees and, if not, determine whether the applicants are eligible for subsidiary protection.’
14 Paragraph 3 of the Bundesgesetz über die Gewährung von Asyl (Asylgesetz 2005) (Federal Law on the grant of asylum (Asylum Law 2005)) of 16 August 2005 (BGBl. I, 100/2005), in the version applicable to the dispute in the main proceedings (‘the AsylG 2005’), entitled, ‘Asylum status’, provides: ‘(1) A foreign national who has filed an application for international protection in Austria shall, unless that application is to be rejected pursuant to Paragraphs 4, 4a or 5, be granted asylum status if it is credible that he or she would be at risk of persecution as defined in Article 1(A)(2) of the [Geneva Convention] in the country of origin. … (5) A decision granting a foreign national, ex officio or on the basis of an application for international protection, asylum status must be linked to a finding that that foreign national automatically enjoys refugee status.’
15 On 4 November 2015, AN, who is an Afghan national and an ethnic Pashtun from the Province of Laghman (Afghanistan), lodged an application for international protection in Austria under the AsylG 2005. In support of that application, AN claimed that he was at risk of persecution in Afghanistan on account of a blood feud targeting persons who were related to his father. The blood feud arose out of a property dispute concerning agricultural land between his father and his father’s cousins. According to the information provided by AN, his father and brother were killed by his father’s cousins as part of that blood feud.
16 By decision of 21 June 2017, the BFA rejected that application, taking the view that AN’s departure from his country of origin was ‘solely motivated by his desire to improve his economic and social situation’ and that the information provided concerning the risk of persecution had no basis in reality. AN brought an appeal against that decision.
17 By decision of 26 July 2022, the Bundesverwaltungsgericht (Federal Administrative Court, Austria) upheld AN’s appeal, granted him asylum status pursuant to Paragraph 3(1) of the AsylG 2005 and found, in accordance with Paragraph 3(5) of that law, that he was automatically entitled to refugee status.
18 That court found that AN’s statements as to why he feared persecution in his country of origin were proven. According to the findings of that court, AN is targeted by a blood feud caused by a property dispute which would expose him, if he were to return to his country of origin, to the risk of being attacked, or even killed, by his father’s cousins because of his relationship to his father, without reasonably being able to expect protection from the Afghan authorities. Furthermore, if AN were to settle in another region of his country of origin, there would be a risk that he would not be able to meet his needs.
19 The BFA brought an appeal on a point of law against that decision before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), the referring court, claiming, in essence, that being a member of a family targeted by a blood feud could not be classified as ‘membership of a particular social group’ within the meaning of Article 10(1)(d) of Directive 2011/95.
20 The referring court notes that, according to the findings of the Bundesverwaltungsgericht (Federal Administrative Court), which are no longer called into question by the BFA and on which the referring court must rely, AN is threatened, with a sufficiently substantiated probability, with acts of physical violence extending to homicide by his father’s cousins, on account of his status as a member of a family targeted by a blood feud, the origin of which lies in a property dispute. It asks whether persons who are subject to such threats solely on account of that family relationship must be regarded as belonging to a ‘particular social group’, within the meaning of Article 10(1)(d) of that directive, as a reason for persecution which may lead the competent national authority to grant them refugee status. In particular, that court asks the Court of Justice to clarify the scope of the condition laid down in the second indent of that provision, according to which a ‘particular social group’ must have a distinct identity in the third country in question because it is perceived as being different by the surrounding society.
21 The referring court also notes that, if it follows from the Court’s answers that AN cannot be granted refugee status, it would still be necessary to examine whether he should be granted subsidiary protection status on account of the threats of acts of physical violence that may extend to homicide, as established by the Bundesverwaltungsgericht (Federal Administrative Court).
22 In that context, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the wording contained in Article 10(1)(d) of [Directive 2011/95], “that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society”, to be interpreted as meaning that a group only has a distinct identity in the relevant country if it is perceived as being different by the surrounding society, or is it necessary to assess separately whether a “distinct identity” exists, irrespective of whether the group is regarded as being different by the surrounding society? If, on the basis of the answer to Question 1, the existence of a “distinct identity” is to be assessed separately: (2) What criteria are to be used to assess whether there is a “distinct identity” within the meaning of Article 10(1)(d) of [Directive 2011/95]? Irrespective of the answers to Questions 1 and 2: (3) In determining whether a group is perceived as being different “by the surrounding society” within the meaning of Article 10(1)(d) of [Directive 2011/95], must reference be made to the perspective of the actor of persecution or to that of society as a whole or of a substantial part of the society of a country or of part of the country? (4) What criteria are to be used to determine whether a group is perceived as being “different” within the meaning of Article 10(1)(d) of [Directive 2011/95]?’
23 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 10(1)(d) of Directive 2011/95 must be interpreted as meaning that an applicant for international protection targeted by a blood feud in his or her country of origin because of his or her status as a member of a family involved in a property dispute may, for that reason alone, be regarded as belonging to a ‘particular social group’ within the meaning of that provision.
24 As a preliminary point, it should be recalled that Article 2(d) of Directive 2011/95, which reproduces, in essence, the definition set out in Article 1(A)(2) of the Geneva Convention (judgment of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 84), recognises as a refugee any third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country.
25 A proven risk of being subjected to acts of physical violence which may extend to homicide, such as that to which AN would be exposed in his country of origin, is not, however, sufficient in itself for him to be granted ‘refugee status’ within the meaning of Article 2(e) of Directive 2011/95. Under Article 9(3) of that directive, read in conjunction with Article 6(c) and Article 7(1) thereof and in the light of recital 29 of that directive, recognition of refugee status presupposes that a link be established, either between one of the reasons for persecution set out in Article 10(1) of that directive and the acts of persecution, within the meaning of the provisions to which Article 9(3) of that directive refers, or between one of those reasons for persecution and the absence of protection, by the ‘actors of protection’, against such acts when perpetrated by ‘non-State actors’ (see, to that effect, judgment of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), C‑621/21, EU:C:2024:47, paragraph 66).
26 The referring court asks the Court of Justice whether there is such a link between, on the one hand, the risk of acts of violence to which an applicant for international protection targeted by a blood feud in his or her country of origin is exposed and, on the other hand, the ground based on membership of a ‘particular social group’, within the meaning of Article 10(1)(d) of Directive 2011/95. In other words, that court asks whether, in such circumstances, that applicant must be regarded as being at risk of persecution in his or her country of origin ‘for reasons of membership of a particular social group’.
27 It follows from Article 10(1)(d) of that directive that a group is to be considered a ‘particular social group’ where two cumulative conditions are satisfied. First, the members of the relevant group must share at least one of the three following identifying features, set out in the first indent of that provision, namely an ‘innate characteristic’, a ‘common background that cannot be changed’ or a ‘characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’. Second, that group must have a distinct identity in the country of origin ‘because it is perceived as being different by the surrounding society’ (judgment of 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality), C‑646/21, EU:C:2024:487, paragraph 40 and the case-law cited).
28 As regards the first of those conditions, the fulfilment of which is not disputed before the referring court, as the Advocate General observed in points 24 to 26 of his Opinion, the members of a family, on account of their family ties, whether those ties stem from biological parentage, adoption or marriage, share an ‘innate characteristic’ or a ‘common background that cannot be changed’. The fact that the members of a family, and in particular the men and boys of that family as a result of their ancestry, are subjected to a blood feud, because that blood feud is passed down from generation to generation through the male line, also falls within such a common background that cannot be changed and thus constitutes an additional feature common to those persons. Accordingly, those persons may be regarded as satisfying that first condition.
29 As regards the second condition that has to be fulfilled in order for there to be a ‘particular social group’, within the meaning of the second indent of Article 10(1)(d) of Directive 2011/95 relating to the distinct identity of that group in the country of origin concerned ‘because it is perceived as being different by the surrounding society’, the referring court asks whether that provision requires that the existence of a ‘distinct identity’ be examined autonomously and independently of the issue whether the group concerned is perceived as being different by the surrounding society.
30 It follows from the wording of the second indent of Article 10(1)(d) of Directive 2011/95, in all its language versions, that the perception by the surrounding society of the difference in the group concerned is of decisive importance. As the Advocate General observed, in essence, in points 30 to 32 of his Opinion, the ‘distinct identity’ of the group referred to in that provision is a condition that must be assessed not separately and independently from the perception of the surrounding society, but in conjunction with it.
31 It is for the Member State concerned to determine which ‘surrounding society’, within the meaning of that provision, is relevant when assessing whether such a social group exists. That society may coincide with the entirety of the country of origin of the applicant for international protection or be more restricted, for example, to part of the territory or population of that third country (judgments of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), C‑621/21, EU:C:2024:47, paragraph 54, and of 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality), C‑646/21, EU:C:2024:487, paragraph 50).
32 Moreover, ‘membership of a particular social group’ is to be established independently of the risk of acts of persecution to which the members of that group are exposed in their country of origin (see, to that effect, judgment of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), C‑621/21, EU:C:2024:47, paragraph 55).
33 By way of an example, the existence, in the country of origin, of criminal legislation which specifically targets homosexuals supports the finding that those persons form a separate group which is perceived by the surrounding society as being different (judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 49).
34 Similarly, depending on the circumstances and in particular the social, moral or legal norms prevailing in the country of origin, women in that country, as a whole, and more restricted groups of women who share an additional characteristic, such as women who have escaped from a forced marriage or married women who have left their homes, or the fact that they genuinely come to identify with the fundamental value of equality between women and men, may be regarded as belonging to ‘a particular social group’, within the meaning of the second indent of Article 10(1)(d) of Directive 2011/95 (see, to that effect, judgments of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), C‑621/21,EU:C:2024:47, paragraphs 52, 53 and 62, and of 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality), C‑646/21, EU:C:2024:487, paragraphs 49 and 64).
35 In that context, it is important to emphasise that the perception of only a few individuals who are part of the surrounding society cannot be decisive. In order to be recognised as having a distinct identity in the country of origin, the group must be perceived as being different by the surrounding society as a whole, which necessarily implies that that perception is shared by a substantial proportion of the individuals making up that society and not solely by single perpetrators of acts that may be classified as acts of persecution within the meaning of Directive 2011/95. Otherwise, such acts would be sufficient to regard the persons to whom they are directed as belonging to a ‘particular social group’, which would deprive that condition of its effectiveness.
36 Similarly, the perception of their own difference by the victims of such acts cannot, in itself, be decisive in that context. In circumstances characterised by a family blood feud, the subjective perception of their difference, by the family members targeted by that blood feud, does not in itself mean that the group which they form together is perceived as being different by the surrounding society, as is required by the second indent of Article 10(1)(d).
37 Therefore, what matters is the fact that a group is perceived as being different by the surrounding society as a whole, in particular because of the social, moral or legal norms prevailing in the country of origin. Proof of such perception, at the level of the surrounding society, may in particular be provided from specific evidence such as, for example, discriminatory treatment or exclusionary practices, even general stigmatisation affecting members of the group in question and having the effect of marginalising them from the surrounding society (see, to that effect, judgments of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), C‑621/21, EU:C:2024:47, paragraph 53, and of 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality), C‑646/21, EU:C:2024:487, paragraph 49).
38 In the present case, subject to verification to be carried out by the referring court, it is not apparent from the documents before the Court that, in their country of origin, the group made up of the members of a particular family targeted by a blood feud the cause of which is a property dispute is perceived as being different not only by the members of the families involved in that blood feud, but by the surrounding society as a whole.
39 It follows from the foregoing that the fact that an applicant for international protection is exposed, in his or her country of origin, to a risk of physical violence extending to homicide as part of a blood feud targeting all or some of his or her family members as a result of a property dispute does not lead to the finding that that applicant belongs to a ‘particular social group’ within the meaning of Article 10(1)(d) of Directive 2011/95. Therefore, such an applicant cannot, on that basis, be granted refugee status.
40 It must, however, be pointed out that if, when conducting the individual assessment of an application for international protection made in accordance with Article 4 of Directive 2011/95, taking into account, in particular, the factors set out in paragraph 3 of that article, the competent authority finds that the applicant does not qualify for refugee status, Article 10(2) of Directive 2013/32 requires that authority to determine whether the applicant qualifies for subsidiary protection.
41 As is apparent, first, from recital 33 of Directive 2011/95, subsidiary protection supplements the protection of refugees enshrined in the Geneva Convention. Second, recital 34 of that directive states that the common criteria to be met by applicants for international protection in order to be eligible for subsidiary protection are defined on the basis of international obligations under human rights instruments and practices already existing in the Member States. Third, it follows from recital 39 of that directive that, save for derogations which are necessary and objectively justified, beneficiaries of subsidiary protection status must enjoy the same rights and benefits as those enjoyed by refugees under that directive and be subject to the same conditions of access.
42 Under Article 2(f) of Directive 2011/95, a person eligible for subsidiary protection means a third-country national who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that that person, if returned to his or her country of origin, would face a real risk of suffering serious harm as defined in Article 15 of that directive, and is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country.
43 The concept of ‘serious harm’ includes inter alia, under Article 15(a) and (b), the death penalty, execution, torture, inhuman or degrading treatment or punishment of an applicant in the country of origin. Since those provisions do not establish any distinction according to whether the harm is caused by a State actor or by a non-State actor, such a concept covers a real threat to the applicant of being killed or subjected to acts of violence inflicted by a member of his or her family or community, irrespective of the reasons underlying those acts (see, to that effect, judgment of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), C‑621/21, EU:C:2024:47, paragraphs 75 and 80).
44 It is thus for the competent national authority to assess, in the context, inter alia, of the procedure laid down in Article 4 of Directive 2011/95, whether an applicant for international protection such as AN satisfies the conditions laid down in order to be eligible for subsidiary protection. The Court has made it clear in that respect that the facts relating to the individual position and personal circumstances of the applicant are capable of constituting factors relevant to the assessment of an application for subsidiary protection by the competent national authority, irrespective of the specific type of serious harm, within the meaning of Article 15 of Directive 2011/95, which is the subject of such an assessment (see, to that effect, judgment of 9 November 2023, Staatssecretaris van Justitie en Veiligheid (Concept of serious harm), C‑125/22, EU:C:2023:843, paragraph 43).
45 If a third-country national or a stateless person satisfies the conditions laid down in that directive for being eligible for subsidiary protection, the Member States are required, in accordance with Article 18 of that directive, to grant them the status conferred by such protection.
46 In the light of all the foregoing considerations, the answer to the questions referred is that Article 10(1)(d) of Directive 2011/95 must be interpreted as meaning that an applicant for international protection targeted by a blood feud in his or her country of origin because of his or her status as a member of a family involved in a property dispute may not, for that reason alone, be regarded as belonging to a ‘particular social group’ within the meaning of that provision.
47 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.