Right to asylum

ECJ ruling on Afghan women: How Austria is reacting

According to the European Court of Justice (ECJ), the difficult situation for women in Afghanistan is sufficient reason to grant them asylum.

(Bild: APA/AFP/WAKIL KOHSAR)

Even after an ECJ ruling, the Austrian authorities will continue to examine asylum applications from Afghan women on a case-by-case basis. This was announced by a spokesperson for Interior Minister Gerhard Karner (ÖVP) on Monday.

According to the ruling, it is not necessary to determine whether an Afghan woman is actually and specifically at risk of persecution if she returns to her country of origin. It is therefore sufficient to only consider nationality and gender.

Austria sticks to individual case examinations
"However, the ruling does not rule out individual case reviews. The Federal Office for Immigration and Asylum will therefore continue to proceed with individual case reviews," emphasized the spokesperson.

Two women as triggers
The ECJ ruling was obtained by the Administrative Court, i.e. the appeal instance of the Federal Office for Immigration and Asylum. It concerned two women who were granted refugee status by the Austrian authorities. The ECJ ruling has no decision-making function in this specific case. The EU Supreme Court only gives its assessment of the case. The judgment is made by the requesting court, i.e. the Administrative Court (VwGH) in this specific case.

Women are oppressed by Taliban fighters in Afghanistan (archive photo).

(Bild: Savvapanf Photo © - stock.adobe.com)

Experts expect far-reaching consequences for asylum policy
Experts see the ECJ ruling as having far-reaching consequences for migration policy. "The smugglers only have to make sure that they bring women from Afghanistan to an EU country. After that, the members of the nuclear family will join them via family reunification", said Innsbruck-based European law expert Walter Obwexer to the "Presse".

European law expert Walter Obwexer

(Bild: APA/HANS PUNZ)

He called for a change in case law in order to prevent "the entire structure of fundamental rights protection with the ECHR and the Charter of Fundamental Rights as well as the ECtHR and the ECJ from being called into question as a result of political pressure".

Griss also calls for a change in case law
Former President of the Supreme Court Irmgard Griss expressed a similar view. The decision was in line with previous case law and was "consistent", but the circumstances had "changed enormously" in the meantime. A "certain correction" of ECJ case law on migration issues is therefore "necessary", said the former NEOS MP.

Irmgard Griss

(Bild: APA/HELMUT FOHRINGER)

You also have to take the attitudes of the population into account. Otherwise, trust in the jurisdiction and the reputation of the courts will be damaged.

Irmgard Griss, Ex-OGH-Präsidentin und EX-NEOS-Abgeordnete

"Unworldly": ruling criticized by the FPÖ
The ruling was sharply criticized by the FPÖ and welcomed by the SPÖ. According to FPÖ MEP Petra Steger, it is obvious that women are oppressed in Islamist-ruled states. "However, to derive a general right of asylum for all women from this proves that the ECJ is completely unworldly and, with its rulings, sabotages a restrictive asylum policy based on the original idea of protection in the nearest safe country with all its might."

SPÖ satisfied: "Groundbreaking decision for women's rights"
In contrast, SPÖ MEP Elisabeth Grossmann said that the ruling was a "groundbreaking decision for women's rights worldwide" and "the right step to set an example against the recent anti-feminist and explicitly misogynistic structures in the country and to offer women the protection they urgently need".