Are all Afghan women and girls refugees? An analysis in light of the Refugee Convention

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Following the withdrawal of the United States (US) and international forces in July 2021, the Taliban retook control of Afghanistan.  Since the Taliban takeover, women and girls have been denied a number of fundamental rights and subjected to various discriminatory measures – including restrictions on education, work, movement and freedom of expression and speech. On 20 December 2022, restricting the right to education of Afghan women further, the Taliban banned women from universities.

These recent developments raise a crucial question: should any Afghan woman or girl fleeing the country following the Taliban takeover be recognised as a refugee under the Convention relating to the Status of Refugees (1951 Convention)? Here we attempt to answer this question and argue that all Afghan women and girls fleeing Taliban rule should be recognised, as a group, as refugees under the 1951 Convention.  

First, we briefly outline state responses to the Taliban takeover ranging from evacuations to resettlement to treatment of Afghan women and girls in national asylum systems. We then turn to the critical elements of the Convention refugee definition with respect to Afghan women and girls: whether their treatment amounts to ‘persecution’ and whether they fall into the category of ‘particular social group’.

State responses to Afghan women and girls since the Taliban takeover

Asylum states responded to the Taliban takeover in various ways, with the US leading an airlift operation evacuating tens of thousands of Afghans on US aircraft. Other states, including Belgium, Denmark, France, Finland, Germany, Italy, Netherlands, Norway, Lithuania, Poland, Romania, Spain and Switzerland, carried out their own evacuations focused on Afghans linked to those states’ military and diplomatic presence in Afghanistan.

Other states increased resettlement for Afghan refugees. Canada, most notably, launched a specialised programme to resettle 40,000 Afghans through both state resettlement and private sponsorship. The United Kingdom also committed to resettle 20,000 Afghans over a number of years. Other resettlement countries, such as Finland, Italy, Ireland and Switzerland, made increased resettlement places for Afghans in 2021.

A number of EU states, including Belgium and Denmark, suspended asylum procedures with respect to Afghan nationals already present. Other European states, notably Germany, Finland, the Netherlands, Norway, Sweden and Switzerland suspended return proceedings with respect to rejected asylum seekers from Afghanistan.

On 17 August 2021, UNHCR issued a non-return advisory for Afghanistan, calling on states to suspend the forcible return of Afghan nationals, including rejected asylum seekers.

However, there is relatively little known about how national asylum systems are assessing the protection needs of Afghan women and girls since the Taliban takeover. In the strongest indication yet, on 6 December 2022, the Swedish Migration Agency recognised that Afghan women should generally be considered in need of international protection and recognised as Convention refugees as a group.

In a legal opinion, the Agency found an accumulation of discriminatory restrictions on women and girls’ access to earn a living, healthcare and education, and to seek protection from violence. The opinion also cited very recent further restrictions, including a bar on women from accessing certain university studies and visiting parks, gyms and public baths.

The opinion also referred to the hardening of the Taliban’s positions with no signs of change. As a result, the opinion concludes that Afghan women’s basic rights are violated through a range of discriminatory legal, administrative, police and/or judicial measures and that the accumulation of these measures amounts to persecution.

To our knowledge, Sweden is the first asylum state to take such a position on the protection status of women and girls from Afghanistan. In response to the Swedish position, on 15 December 2022 the Danish Refugee Appeals Board announced that it would continue with individual processing of asylum applications from Afghan women and girls but, in light of the serious deterioration of conditions under the Taliban, would do so with a lowered standard of proof for establishing a risk of persecution in such cases.

Does every woman or girl forced to flee Afghanistan following the Taliban takeover has a well-founded fear of persecution?

A refugee is defined in Article 1 A(2) of the 1951 Convention 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 country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” To be recognised as a refugee, a person must show well‑founded fear of persecution for one of the reasons stated in the 1951 Convention namely, “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

What is persecution?

No universally accepted definition of persecution exists. In light of the human rights oriented reading of the 1951 Convention, supported by, inter alia, Hathaway and Foster (2014, p. 195), denial of a broadly accepted international human right be it ongoing or systemic implies persecution. Similarly, following Hathaway’s articulation in 1991 (p. 108), UNHCR (para 51) notes that serious violations of human rights can constitute persecution. Following this approach, Article 9 of the Directive 2011/95/EU (EU Recast Qualification Directive) requires an act of persecution to be “a) be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights; or b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual.” A threat to a person’s life or liberty constitutes one of the classic examples of persecution. However, as noted by McHugh J. of the High Court of Australia in Chan v. Minister for Immigration and Ethnic Affairs, (1989) 169 CLR 379 (Aus. HC, Dec. 9, 1989),

Measures ‘in disregard’ of human dignity may, in appropriate cases, constitute persecution […] the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.

Persecution is usually understood to be consisting of serious harm and the failure of state protection. Similar to McHugh J., according to Haines (2011, p. 330), physical, sexual, and psychological violence occurring within the general community, including intimidation at work and in educational institutions, can constitute serious harm. According to Hathaway and Foster, denial of socio-economic rights can lead to serious harm, whilst the risk of forced marriage can also amount to serious harm for refugee law purposes.  

Which rights of Afghan women and girls are violated by the Taliban rule?

EUAA Country of Origin Information on Afghanistan published in August 2022 notes that following the Taliban’s takeover, “Restrictions in education, work, movement and freedom of speech have strongly limited women’s and girls’ possibilities to participate in social life.”. Since the Taliban takeover, there have been severe restrictions on the freedom of movement of women (especially those traveling without male family members ‘mahram’), and the rights to freedom of opinion, expression, and peaceful assembly have also been under serious threat.

Safety and security of women raise serious concerns: reports suggest that human rights abuses, including targeted killings, torture, threats, and intimidation, against women are common. Furthermore, violence targeting women and girls remains unpunished: according to  United Nations Assistance Mission in Afghanistan, between 5 August 2021–15 June 2022, there were 87 cases of murder, rape, suicide, forced marriages, child marriages, assault, and battery, and 2 cases of honour killings though none of these cases has been brought before a court.

Many Afghan women were barred from work. The Taliban prevented a significant number of female government workers from returning to work and replaced the majority with man counterparts. Some women previously working as police officers, media workers, and judicial workers face more discrimination, subject to stricter rules and freedom of movement restrictions. For instance, female former judicial workers (such as judges, prosecutors, and lawyers) have reportedly faced threats, intimidation, and harassment and they reported that “ex-prisoners, freed by the Taliban, have been searching for them to take revenge for their convictions and imprisonment.”

Prevented from working or their access to the labour market restricted by many rules introduced by the Taliban rule, women and especially those in women-headed households are struggling to feed their families, pay rent and face an increased risk of poverty. It is also noted by EUAA that the precarious socio-economic and humanitarian situation in the country forced an increasing number of Afghan families to sell young girls into marriage and more women and girls are subject to domestic violence, exploitation, and abuse.

The right to education is one of the fundamental rights that is denied to most Afghan women and girls. According to UNICEF Afghanistan, “an estimated 3.7 million children are out-of-school in Afghanistan – 60% of them are girls”, whereas a recently updated UNESCO report mentions that “since 23 March 2022, 1.1 million secondary girls have been prevented from attending secondary school until further notice. The ongoing crisis has had a detrimental impact on young women in higher education as well, with a 60 percent decline in enrolment recorded.” The Taliban banned women from universities in Afghanistan on 20 December, restricting the right to education of Afghan women and girls even further.

Is there a risk of persecution for all Afghan women and girls after the Taliban takeover?

Questions of denial of which human rights can constitute serious harm and lead to persecution are key to our analysis (Goodwin-Gill, McAdam, Dunlop, 2021). According to Hathaway and Foster, one needs to consider, inter alia, whether the denial/violation concerns a generally accepted right that is codified in international law. If not all, most Afghan women and girls are denied fundamental rights including the right to work, education (as of 22 December 2022, women and girls cannot go to university), freedom of movement, and expression. With the deterioration of the socioeconomic situation in Afghanistan, women are at risk of extreme poverty, cannot earn a living and many girls are at risk of forced marriage. Moreover, Afghan women and girls are likely targets of killings, torture, threats, and intimidation by the Taliban rule, and violence targeting them is not punished at all.

The rights denied by the Taliban rule for Afghan women are the rights secured by international human rights declarations and treaties, including but not limited to the UDHR, ICCPR, ICESCR, ECHR (including its additional protocols), CRC, and CEDAW. Furthermore, Afghan women are girls who are denied these human rights by Taliban rule because of their sex and gender. This in itself constitutes a violation of Article 1 of the CEDAW that prohibits “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

Goodwin-Gill, McAdam, and Dunlop (2021, p.152) note,

General measures, aimed as often at ‘restructuring’ society as at maintaining the status quo, will frequently be directed at groups identifiable by reference to the Convention reasons for persecution, and carried through with the object, express or implied, of excluding them from or forcing them into mainstream society. Where individual or collective measures of enforcement are employed, such as coercion by denial of employment or education […] then fear of persecution in the above sense may exist; mere membership of the affected group can be sufficient […]

We believe the denial and restriction of fundamental rights of Afghan women and girls fit exactly this statement, and general measures introduced by the Taliban rule aimed at restructuring the Afghan society and erasing women and girls from the public sphere mean every Afghan woman and girl is in risk of being subjected to persecution upon their return to Afghanistan. In other words, the accumulation of restrictions imposed by the Taliban rule on women and girls’ fundamental rights are so severe that Afghan women and girls, as of December 2022, are at risk of persecution as a group. This conclusion also applies to asylum applications arising sur place meaning all Afghan women and girl would who were outside of Afghanistan when the Taliban took over should not be required to prove an individual fear of persecution.

Can gender form the basis of a particular social group?

As with persecution, the nebulous concept of particular social group carried no universally accepted definition. Nevertheless, it is clear today that women and girls may form a particular social group for the purposes of Article 1A (2) of the 1951 Convention. In its 2002 Guidelines on Gender-Related Persecution UNHCR concluded:

    1. Thus, a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.
    2. It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men. Their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.

Thus, Hathaway and Foster (2014, p. 437) report that there is contemporary ‘widespread state practice’ reflecting the notion that women, sex, or gender may constitute a particular social group for the purposes of refugee law.

Does being an Afghan woman or girl mean you are a member of a particular social group?

While there is often reluctance to accept an entire national group of ‘women’ as a particular social group, UNHCR’s 2002 Guidelines point out that this argument has ‘no basis in fact or reason’ as the other Convention grounds are not similarly limited. Indeed in the Afghan case it is precisely the social group of ‘women and girls’ that are subject to such massive discriminatory treatment. While we may in concrete cases distinguish between ‘women’ and ‘girls’ (for example in relation to access to school education), the Taliban’s treatment of all women and girls is discriminatory on the basis of their gender.

It is thus clear from the available background information and this brief analysis that Afghan women are an example ‘of a social subset defined by innate and immutable characteristics’ subjected to substantially discriminatory treatment when compared with Afghan men. Indeed, this was the conclusion of the Swedish Migration Agency who concluded that ‘an asylum-seeking woman or girl from Afghanistan must be assessed as a refugee due to belonging to a particular social group, i.e. gender.’

Conclusion

This brief analysis confirms that any woman or girl leaving Afghanistan following the Taliban takeover or those who were already abroad can be accepted to have a well-founded fear of persecution for reasons of being a member of a social group. In view of the situation in Afghanistan in December 2022, all Afghan women and girls should be accepted as refugees as a group and not be required to prove an individual risk of serious harm. Therefore, we conclude that the practice of the Swedish migration agency is an important development that other asylum states are recommended to follow.

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