Opinion of Advocate General Collins delivered on 13 July 2023.

• Jurisdiction: European Union
• Celex Number: 62021CC0646
• ECLI: ECLI:EU:C:2023:581
• Date: 13 July 2023
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 13 July 2023(1)

Case C‑646/21

K,

L

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats ’s‑Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands))

(Reference for a preliminary ruling – Common policy on asylum and subsidiary protection – Subsequent applications for international protection – Directive 2011/95/EU – Article 10(1)(d) – Reasons for persecution – Membership of a particular social group – Third-country nationals who have spent a considerable part of the phase of their life when individuals form their identity in a Member State – European values, norms and conduct – Gender equality – Women and girls transgressing rules of social conduct in country of origin – Best interests of the child)

I. Introduction

1. The present Opinion concerns the applications for international protection of K and L, two teenage girls from Iraq (2) who lived in the Netherlands for five years whilst their family’s initial applications for international protection were being examined. During that time, they were part of a society that values gender equality and they adopted the values, norms and conduct of their peers. In their subsequent applications for international protection, (3) which the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) has rejected as manifestly unfounded, (4) the appellants claim that, if they return to Iraq, they will be unable to conform to values, norms and conduct that do not afford women and girls the freedoms that they enjoyed in the Netherlands, the expression of which would expose them to the risk of persecution. The questions referred for a preliminary ruling ask whether persons in the appellants’ circumstances may be entitled to international protection because they are members of a particular social group within the meaning of Article 10(1)(d) of Directive 2011/95/EU, (5) and how a child’s best interests may be taken into account in the assessment of applications for international protection.

II. Legal framework

A. European Union law

2.Article 10 of Directive 2011/95, entitled ‘Reasons for persecution’, provides:

‘1. Member States shall take the following elements into account when assessing the reasons for persecution:

(a) the concept of race shall, in particular, include considerations of colour, descent, or membership of a particular ethnic group;

(b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief;

(c) the concept of nationality shall not be confined to citizenship or lack thereof but shall, in particular, include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State;

(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;

(e) the concept of political opinion shall, in particular, include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant.

2. When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.’

B. Netherlands policy circulars

3. According to the annex to the order for reference, by paragraph C7.2.8 (6) of the Vreemdelingencirculaire 2000 (C) (Circular on Foreign Nationals of 2000 (C); ‘the Circular on Foreign Nationals of 2000 (C)’):

‘The principal rule is that merely a Western lifestyle developed in the Netherlands cannot lead to refugee status or subsidiary protection. An adaptation to the customs of Afghanistan is required. Two exceptions are possible:

– If a woman makes a plausible case that the Western conduct is a manifestation of religious or political conviction.

– If a woman makes a plausible case that she has personal characteristics, which are very difficult or virtually impossible to change, and that, due to those characteristics, she fears persecution or risks inhuman treatment in Afghanistan.’

4. Paragraph B8.10 of Vreemdelingencirculaire 2000 (B) (Circular on Foreign Nationals of 2000 (B)), entitled ‘Westernised school-going girls’, provides:

‘The IND [(Immigratie- en Naturalisatiedienst (Immigration and Naturalisation Service, Netherlands; “the IND”))] grants a residence permit for a fixed period of time … to westernised girls, if the girl has made a plausible case that on return to Afghanistan she will be subject to disproportionate psychosocial pressure.

The IND assesses whether or not there is disproportionate psychosocial pressure based on circumstances that must include the following:

a. the degree of westernisation of the girl;

b. individual humanitarian circumstances, which must include the medical circumstances (of the girl or a family member) and the death in the Netherlands of a family member of the girl; and

c. the possibility of participation in Afghan society, which includes an assessment of family composition and the presence of powerful actors (tribal leaders, war lords) to protect the girl.

Regarding point a, the IND assesses the degree of westernisation on the basis of the following circumstances:

– the girl is at least 10 years old;

– she has stayed in the Netherlands for at least 8 years, from the date of the first application for asylum for a fixed period until the date of application for an ordinary residence permit for a fixed period as described in the present paragraph; and

– she has attended school in the Netherlands.

If the girl does not satisfy one or more of those circumstances, then she faces a higher burden of proof in order to make a plausible case that she should be granted an ordinary residence permit for a fixed period of time under this policy. …’

III. The facts of the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

5. On 29 September 2015, the appellants, together with their father, mother and aunt, left Iraq. On 7 November 2015, they lodged applications for international protection with the Netherlands authorities. At that time, the appellants were 10 and 12 years of age. On 31 July 2018, the Raad van State (Council of State, Netherlands) definitively dismissed their applications. On 4 April 2019, the appellants lodged subsequent applications for international protection, which were rejected as manifestly unfounded on 21 December 2020. On 28 December 2020, the appellants appealed those decisions to the referring court, which heard those appeals on 17 June 2021. By the date of that hearing, the appellants were 15 and 17 years old and had been continuously resident in the Netherlands for five years and seven and a half months.

6. The appellants argue that, due to their long stay in the Netherlands in the phase of their lives when individuals form their identity, they have adopted the values, norms and conduct of their Dutch peers. In the Netherlands, they have become aware of the freedom that they have, as girls, to make their own life choices. They indicate that they wish to continue to determine for themselves, just as they have done in the Netherlands, whether to associate with boys, to participate in sport, to study, to marry and, if so, to whom, and to work outside the home. They also want to decide on political and religious views for themselves and to be able to express those views in public. As they would be incapable of renouncing those values, norms and conduct upon their return to Iraq, they seek international protection.

7. The referring court considers that the values, norms and conduct to which the appellants refer consist essentially in a belief in gender equality. (7) That court must decide whether the appellants may be considered members of a particular social group within the meaning of Article 10(1)(d) of Directive 2011/95, whether, when and how a decision-maker should take into account the child’s best interests in an application for international protection, and whether account should be taken of the harm that the appellants claim they have suffered due to the stress of living with prolonged uncertainty as to their residence in the Netherlands as well as the threat of a forced return to their country of origin.

8. The referring court therefore stayed the proceedings and referred the following questions to the Court of Justice...