Provisional text

delivered on 5 September 2024 (1)

Case C-217/23 [Laghman] (i)

Bundesamt für Fremdenwesen und Asyl

AN

(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))

( Reference for a preliminary ruling – Area of freedom, security and justice – Common policy on asylum – Directive 2011/95/EU – Conditions for being eligible for international protection or subsidiary protection – Refugee status – Article 2(d) – Reasons for persecution – Second indent of the first subparagraph of Article 10(1)(d) – Concept of membership of a particular social group – Concept of ‘distinct identity’ in the country of origin – Perception of a group as being different by the surrounding society – Criteria for assessment – Applicant for international protection, member of a family involved in a blood feud in his or her country of origin )

1.Can an applicant for international protection, who is a member of a family involved in a vendetta (2) or blood feud in his country of origin, be considered exposed to an act of persecution because he or she belongs to a ‘particular social group’ within the meaning of Article 2(d) and the first subparagraph of Article 10(1)(d) of Directive 2011/95/EU? (3)

2.The answer to that question is not immediately obvious.

3.It calls for a distinction to be made between serious acts and threats arising from a blood feud, which are in line with principles of customary law recognised and accepted by certain traditional societies and to which different generations of a family are exposed on account of the responsibilities that other members of the family are considered to have, and strictly personal acts and threats, made with other motives, by common criminals or the mafia. Although the United Nations High Commissioner for Refugees (UNHCR) (4) and the European Union Agency for Asylum (EUAA) (5) have issued recommendations on the subject, national authorities adopt different approaches when it comes to establishing whether this type of applicant belongs to a particular social group. (6)

4.Under EU law, where there is an application for international protection based on membership of a ‘particular social group’, it must be established not only that members of the group share an innate characteristic or a characteristic or belief that is fundamental to their identity or conscience, or a common background that cannot be changed (the first condition for identifying a particular social group set out in the first indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95), but also that the group has a ‘distinct identity in the relevant country, because it is perceived as being different by the surrounding society’ (the second condition for identifying a particular social group set out in the second indent of the first subparagraph of Article 10(1)(d) of that directive).

5.Although the Court has already had occasion to clarify the scope of the reason for persecution based on membership of a particular social group with regard to homosexual persons and, more recently, women who are victims of domestic violence or who identify with values such as gender equality, (7) the present case invites it to provide further clarification on the second criterion for identifying a particular social group, relating to the social perception of the group in the country of origin in the specific context of a blood feud.

6.I will begin my reasoning by explaining that the concept of ‘surrounding society’, referred to in the second indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95, means the human and social environment in which the relevant group lives, such that the ‘distinct identity’ of the group must be assessed not in the light of the isolated perception of the actor of persecution, but of the collective perception of that society. I will then go on to explain that the competent national authority must, in its individual assessment, take into account the representation or image that the surrounding society has of the relevant group and the extent to which the opinion or judgment associated with it distinguishes it from the rest of that society. In that regard, the behaviour, acts or measures adopted as a result of that perception may be relevant factors for demonstrating that the group is indeed perceived as being different.

II. European Union law

8. Article 2 of Directive 2011/95, entitled ‘Definitions’, provides in subparagraph (d):

‘For the purposes of this Directive the following definitions shall apply:

…

(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 … and to whom Article 12 does not apply.’

9. Article 4 of that directive, headed ‘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:

(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;

(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

(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;

…’

10. Article 10 of that directive, entitled ‘Reasons for persecution’, provides in the first subparagraph of paragraph 1(d):

‘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.’

III. Facts in the main proceedings and the questions referred for a preliminary ruling

11.AN, an Afghan national belonging to the Pashtun ethnic group, filed an application for international protection in Austria on 4 November 2015. In support of his application, AN claimed that he was at risk of persecution if he returned to his country of origin on the ground that his family had been involved in a blood feud since his father and brother were murdered following a dispute with his father’s cousins over land.

12.Although the Bundesamt für Fremdenwesen und Asyl (Federal Office for Immigration and Asylum, Austria) rejected that application by decision of 21 June 2017, the Bundesverwaltungsgericht (Federal Administrative Court, Austria) upheld the appeal against that decision and, by judgment of 26 July 2022, ruled that AN should be granted refugee status. The court recognised the existence and seriousness of the risks faced by the interested party on account of his family ties in the event of his return to his country of origin, as well as the inability of the Afghan authorities to protect him from the risks arising from that blood feud. As regards the possibility of protection within the country, that court further held that, even assuming that he was not threatened in other parts of Afghanistan, there was the risk that AN would be unable to provide for his basic needs.

13.The Federal Office for Immigration and Asylum brought an appeal on a point of law against that decision before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), the referring court. It argued that the decision was incorrectly based on the premiss that a family can be considered a ‘particular social group’ within the meaning of Article 10(1)(d) of Directive 2011/95, without it being determined whether such a family is perceived as being different by the surrounding society, contrary to that provision.

14.According to the referring court, the ‘central question’ for resolving the case in the main proceedings is ‘whether members of a family who are threatened with a blood feud solely because they belong to a family in which one of the members is [or was] involved in a dispute giving rise to the blood feud must be considered a social group’, within the meaning of Article 10(1)(d) of Directive 2011/95. To that end, it asks the Court, in essence, to clarify the content and scope of the second condition for identifying the existence of a ‘particular social group’, provided for in the second indent of the first subparagraph of that article.

15.The referring court doubts whether, in the present case, AN’s family can be perceived by the surrounding society as being different because of its involvement in a blood feud, since that society, in a large part of Afghanistan at least, observes the established Pashtun tradition of resolving certain family disputes by blood feud.

16. In those circumstances, 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?

(2) If, on the basis of the answer to Question 1, the existence of a “distinct identity” is to be assessed separately, 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]?

(3) Irrespective of the answers to Questions 1 and 2, 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]?

18.By its questions referred for a preliminary ruling, which I propose to examine together, the referring court seeks, in essence, to know whether the first subparagraph of Article 10(1)(d) of Directive 2011/95 must be interpreted as meaning that a member of a family involved in a blood feud in his or her country of origin may be considered, depending on the circumstances in that country, as belonging to a ‘particular social group’, as a reason for persecution that could lead to the recognition of refugee status.

19.To that end, the referring court asks the Court of Justice to clarify the meaning and scope of the second condition for identifying membership of a ‘particular social group’, set out in the second indent of the first subparagraph of Article 10(1)(d) of that directive.

20.First, it must be borne in mind that, under Article 2(d) of that directive, the term ‘refugee’ refers, in particular, to a third-country national who is outside the country of his or her nationality owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group and is unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country.

21.The third-country national concerned must therefore, on account of circumstances existing in his or her country of origin and the conduct of actors of persecution, have a well-founded fear that he or she will personally be subject to persecution for at least one of the five reasons listed in Article 10(1) of Directive 2011/95, one such reason being membership of a ‘particular social group’ in that country.

22.The EU legislature defined that concept in Article 10(1)(d) of the directive, taking a markedly different approach from the one advocated by UNHCR. (8)

23.First, members of that group must share an ‘innate characteristic’, or 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’.

24.In the present case, it is not disputed in the main proceedings that this condition is satisfied. Indeed, members of the same family, on account of their kinship – whether through blood ties, adoption or marriage, for example – share an innate characteristic, which is also fundamental to identity and/or a common background that cannot be changed. (9)

25.I would add that, according to the Court’s case-law, members of the same family may share an additional common characteristic such as, for example, another innate characteristic, or a common background that cannot be changed, such as a particular family situation. (10) In that context, the fact that members of a family, and in particular the men and boys of that family, are subject, because of their ancestry, to a blood feud on the ground that it is passed down from generation to generation through the male line, qualifies as ‘a common background that cannot be changed’.

26.In the light of those considerations, members of a family involved in a blood feud in the country of origin, in particular the men and boys, easily satisfy the first condition for identifying a ‘particular social group’ within the meaning of the first indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95.

27.Second, that group must have a ‘distinct identity’ in the relevant country ‘because it is perceived as being different by the surrounding society’.

28.By its first question, the referring court asks the Court whether the ‘distinct identity’ of the group constitutes a condition that must be assessed separately and independently from the perception of the surrounding society. It points out that the use of the term ‘da’ in the German-language version of the second indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95 could have a meaning other than mere causation. (11) It then asks the Court, by its second question, to specify, where applicable, the criteria that should be used to assess the ‘distinct identity’ of a group.

29.The doubts of the referring court seem to me to be easily dismissed.

30.On the one hand, from a textual point of view, it is clear from the different language versions of the provision in question, such as the English (‘because’), French (‘parce que’) or Italian (‘perché’), that the EU legislature has clearly expressed a causal link between the concept of ‘distinct identity’ and that of ‘surrounding society’. The ‘distinct identity’ of the group ‘in the relevant country’ results from the fact that that group ‘is perceived as being different by the surrounding society’.

31.On the other hand, it follows from the scheme of the first subparagraph of Article 10(1)(d) of Directive 2011/95 that the EU legislature intended to make a distinction between, in the first indent of that provision, the ‘individual identity’ of the member of the relevant group, in so far as it refers, inter alia, to the physical, cultural or religious characteristics that he or she has in common with all the members of that group and, in the second indent of that provision, the ‘collective identity’ or ‘social identity’ of the group, in so far as it refers to how that group is perceived by other members of society. To consider the ‘distinct identity’ of the group in the relevant country to be distinct from the perception of the surrounding society would thus be to ignore the distinction that the EU legislature sought to make between the individual and social elements of the identity of members of the relevant group.

32.In the light of those considerations, the ‘distinct identity’ of the group, referred to in the second indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95, is thus a condition that must be assessed not separately and independently from the perception of the surrounding society, but in conjunction with it. (12)

33.In those circumstances, there is no need to reply to the second question.

34.It is now appropriate to examine the third and fourth questions referred for a preliminary ruling, by which the referring court asks the Court to clarify how it is to be assessed whether a group ‘is perceived as being different by the surrounding society’.

35.In the first place, as regards the concept of ‘surrounding society’, this constitutes the frame of reference for establishing the existence of a ‘distinct identity’ of the group. The second indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95 clearly refers to a collective space, that is to say the human and social environment in which members of that group live. Therefore, the perception of the surrounding society is a collective perception. In response to the referring court, I share the view of the Austrian Government in its observations that it cannot be confused with the isolated perception of the actor of persecution, within the meaning of Article 6 of that directive, or even with the sole perspective of the immediate entourage of the person concerned.

36.The referring court invites the Court to clarify the geographical extent of that ‘society’, but the EU legislature specifically defines it by referring to the ‘surrounding’ society. That society thus corresponds to the environment in which the members of the relevant group live. The environment consists of structures and encompasses particular moral, cultural, social, economic, political, religious and legal norms, the functioning of which should be understood for the purposes of the individual assessment of the request. There is no need, in my view, to further clarify that geographical extent, unless it is to determine a scope contrary to the socio-political organisation of that society and its ways, whether cultural, ethnic, linguistic or religious. As the Court has consistently held, it is for the competent authority to determine the ‘surrounding society’ which is relevant when assessing whether a particular 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. (13) Thus, a social group identified as a group with a ‘distinct identity’ in a given country, within the meaning of the second indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95, will not necessarily be considered a ‘social group’ in other countries.

37.In the second place, the recognition of a ‘distinct identity’ of the group in the applicant’s country of origin implies that the group is ‘perceived’ as being ‘different’ by the surrounding society.

38.I note, at the outset, that the EU legislature refers to the concept of ‘social perception’, which is a concept distinct from that of ‘social behaviour’. ‘Perception’ is the ability that allows an organism to guide its actions and to understand its environment on the basis of the information provided by its senses. (14) The concept of ‘social perception’ thus covers, according to its usual meaning, the mental process by which individuals organise and interpret their impressions in order to make sense of their environment, regardless of the actions they may take. (15)

39.The concept of ‘difference’ is, for its part, defined as the ‘characteristic (a difference) or set of characteristics (differences) that distinguish one thing or being from another’. (16) Difference is therefore the opposite of being similar. Evidently, difference presupposes the otherness of the persons or elements between which it is established or found to exist. (17) The second indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95 specifies neither the nature of that difference, which may therefore reside in various attributes of members of the relevant group, nor its extent, such that the ‘difference’ to which the EU legislature refers does not necessarily correspond to a range of values.

40.I infer from those considerations that, in the context of the second indent of the first subparagraph of Article 10(1)(d) of Directive 2011/95, the condition relating to the ‘distinct identity’ of a group implies that, in the context of the individual assessment of the application, the competent national authority is to assess the extent to which the surrounding society has an impression or image of the relevant group which is associated with an opinion or judgement differentiating or distinguishing that group from the rest of society.

41.That assessment must be made in the light of all the information available to it under Article 4(3) of Directive 2011/95. Social perception is subjective and depends on numerous factors relating to the characteristics of the relevant group (such as its appearance, physical attributes, gender, social origins or social roles, its behaviour, attitudes, opinions, or even its capabilities, etc), as well as the norms governing that society (whether moral, social or legal norms, or cultural, economic, political or religious norms), and their combination at any given time. Evidently, the same qualities or attributes may create different impressions depending on the circumstances and the environment in which the relevant group of people live. (19)

42.Despite the fact that, for the purposes of that assessment, the EU legislature does not require it to be demonstrated that the group is treated differently, but only that it is perceived differently by the surrounding society, any behaviour, acts or measures that are adopted because of the social perception of the group may still be useful in demonstrating the group’s ‘distinct identity’ in the country of origin. This is the direction taken by the Court’s case-law. The Court considers that, although ‘membership of a particular social group is to be established independently of the acts of persecution, within the meaning of Article 9 of [Directive 2011/95], of which the members of that group may be victims in the country of origin’, (20) ‘the fact remains that discrimination or persecution suffered by persons sharing a common characteristic may constitute a relevant factor where … it is necessary to assess whether the group in question appears to be distinct in the light of the social, moral or legal norms of the country of origin in question’. (21)

43.Since equality is the rule and non-discrimination the principle, the difference can therefore result in a breach of equality and in acts, measures or practices that discriminate against the group. The Court thus held that, depending on the circumstances in the country of origin, women may be perceived as being different by the surrounding society and recognised as having ‘their own identity’ in that society, in particular because of social, moral or legal norms in their country of origin. (22) In the judgment of 7 November 2013, X and Others, (23) the Court also held that the existence of criminal laws which specifically target homosexuals supports a finding that those persons form a separate group which is perceived by the surrounding society as being different. (24)

Similarly, the competent national authorities may find that a relevant group is perceived differently because of stigmatisation or ostracism directed against its members, for example, the stigmatisation of young women refusing to undergo female circumcision in a community in which such a practice is the norm. By contrast, I do not think it is necessary to establish that members of the relevant group are sidelined or excluded from the surrounding society, since the concept of ‘difference’ does not mean pitting this group against the society in which it lives. (25)

In the present case, the referring court raises doubts as to whether members of a family threatened with blood feud belong to a particular social group. According to the referring court, those family members are not perceived differently by the surrounding society, first, because only the actor of persecution – that is to say, the ‘avenging’ family – and the relatives and acquaintances of the targeted family would be aware of the blood feud, and second, because it is the Pashtunwali tradition, which is followed in the region of origin of the interested party, to resolve disputes by blood feud. In other words, the blood feud is an important and widespread conflict resolution mechanism in the traditional Pashtunwali legal system.

I am not convinced by those arguments since, if such an approach were adopted, there would be a risk that applicants for international protection could not be recognised as members of a particular social group on the sole ground that the traditional code or practice to which they are subject is widespread in their country or region of origin. (26)

Such a determination obviously requires an individual assessment of the application for international protection from a member of the family at risk, in accordance with Article 4(3) of Directive 2011/95. (27)

In that context, it is essential to examine the blood feud in the context of the legal system and tradition in which it takes place and to distinguish it from ordinary or organised crime.

The vendetta, which means ‘taking (or retaking) blood’ or ‘vengeance’, is defined as a secular phenomenon governed by customary law recognised and accepted by some traditional societies as a law existing in parallel with the legal system in force. (28) Thus, it is accepted that the blood feud is an integral part of the customary laws of Pashtuns living in rural areas of Afghanistan (the Pashtunwali), (29) as well as of societies living in the mountainous regions of northern Albania (the Kanun) (30) or in south-eastern Türkiye. In its information report on Afghanistan published in May 2024, the EUAA distinguishes the blood feud from the simple land dispute from which it may originate. (31) The blood feud dictates a method of dispute resolution that is part of a collective action, under which the punishment of a murder or an insult is the responsibility not of the State justice system, but of the family, clan, tribe or ethnic group of the offended party. (32) The blood feud may follow strict rules, since it can define the relevant offences and the categories of victims to be avenged. The degree to which it imposes revenge through the commission of acts of violence differs according to the codes, regions or tribes to which they apply and the origin of the blood feud. Thus, according to the Pashtunwali, exacting revenge is not only a right, but a duty, a social obligation, which, if breached, could bring dishonour upon or even endanger anyone who evades, refuses or ignores it. The right to revenge can be passed down from generation to generation. (33) Traditionally, it applies to any man of the family through the male line, taking into account his status and the responsibilities that he assumes within it. (34) In that context, the persecution of a man and his son from an early age, on the ground that the latter belongs to the same family as his paternal grandfather, is in my opinion as arbitrary as persecution for reasons of race or religion.

Lastly, a blood feud may, by reason of the principles of customary law that govern it, involve self-isolation or voluntary confinement measures for the targeted family, the duration and severity of which vary in each case. (35) In extreme situations, those measures can lead to the youngest children dropping out of school, especially boys, as well as a loss of earnings for the family. (36) In addition, any help given to the family may be regarded as an insult to the other family, which could trigger another blood feud.

It follows that, even in a society where the blood feud is still a widespread dispute resolution mechanism, there is nothing to preclude, because of the social and moral norms on which that society is based, the members of a family involved in a blood feud, in particular male family members, from being perceived differently by that society, either because they are forced to hide away and isolate themselves from that society in order to escape revenge, or because they refuse to salvage the family’s honour and reputation by exercising a right to revenge that customary law requires them to exercise. Some national authorities also have databases listing ongoing blood feuds as well as the families involved, which is an indication of the visibility of that group in society. (37) In addition, some countries have adopted specific criminal laws recognising the aggravating nature of a murder committed in connection with a blood feud, and are also trying to curb the phenomenon through preventive measures and by setting up reconciliation committees for families in conflict.

Subject to an assessment of the facts and circumstances of each case, I see no reason why a competent national authority should not consider that a member, in particular a male member, of a family involved in a blood feud in his country of origin belongs to a group having its ‘distinct identity’ in that country, because of the rules to which the latter would be subject under a customary code. Contrary to the concerns expressed by the Commission in its observations, I do not think that such a social group is identified by the act of persecution to which the family member is exposed in his country of origin. (38)

Indeed, that social group would be identified by the application to it of a customary law justified by blood ties and involving not only the submission of the members of that group to particular rules governing their life in society, but also their exposure to a risk of serious threats against them. (39)

In the light of those considerations, I believe that the first subparagraph of Article 10(1)(d) of Directive 2011/95 must be interpreted as meaning that, depending on the circumstances in the country of origin, a member of a family involved in a blood feud in that country may be considered to belong to a ‘particular social group’, as a reason for persecution that may lead to the recognition of refugee status.

Recognition of that status will also require it to be established that the acts to which that person may be exposed in his or her country of origin are carried out by non-State actors, within the meaning of Article 6(c) of Directive 2011/95, which will mean showing that the actors of protection referred to in Article 7 of that directive, including the State, are unable or unwilling to provide effective protection against those acts. (40)

Furthermore, recognition of that status will presuppose, in accordance with Article 9(3) of Directive 2011/95, read in conjunction with Article 6(c) and Article 7(1) of that directive, and in the light of recital 29 of that directive, that a link be established either between the reasons for persecution set out in Article 10(1)(d) of that directive and the acts of persecution within the meaning of Article 9(1) and (2), or between the reason for persecution and the absence of protection against such acts of persecution perpetrated by non-State actors. (41)

Lastly, recognition of refugee status will require an assurance that there are no grounds for exclusion that apply to the interested party.

In the light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) as follows:

The first subparagraph 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

must be interpreted as meaning that:

– The ‘distinct identity’ of the group is a condition that must be examined in the light of the surrounding society’s perception of it.

– The ‘surrounding society’ is defined as the human and social environment in which that group lives, which the competent national authority considers relevant for the purposes of its individual assessment of the application for international protection. The perception of the surrounding society does not refer to the isolated perception of the actor of persecution, but to a collective perception.

– The fact that the group is perceived as being different by the surrounding society must be examined in the light of the impression or image that it has of that group, with which an opinion or judgement may be associated that differentiates it or distinguishes it from the rest of society. Behaviour, acts or measures that are adopted as a result of that perception may be relevant factors for that purpose.

– Depending on the circumstances in the country of origin, a member of a family involved in a blood feud in that country may be considered to belong to a ‘particular social group’, as a reason for persecution that may lead to the recognition of refugee status.

—

1

Original language: French.

The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

According to the dictionary La Langue française, the term ‘vendetta’ is an Italian word derived from the Latin ‘vindicta’ and has two meanings. It can either refer to the inherited deadly animosity between two families, typical of the Mediterranean and Balkan regions, motivated by the desire to avenge offences or crimes perpetrated between those families, or the pursuit of personal or collective vengeance in order to repair a perceived injustice or injury.

3

Directive 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).

See UNHCR position on claims for refugee status under the 1951 Convention (relating to the Status of Refugees, signed at Geneva on 28 July 1951 and which entered into force on 22 April 1954, United Nations Treaty Series, Vol. 189, No 2545, 1954, p. 150; ‘the Geneva Convention’) based on a fear of persecution due to an individual’s membership of a family or clan engaged in a blood feud of 17 March 2006 (‘the UNHCR position on an individual’s membership of a family or clan engaged in a blood feud’).

See EUAA, Country guidance: Afghanistan, May 2024, paragraph 3.18, entitled ‘Individuals involved in blood feuds and land disputes’.

6

See, as an illustration of a decision rejecting the application for refugee status and granting subsidiary protection, decision of the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland) of 3 September 2013 (Hehao 13/1012/3) and decisions of the Cour nationale du droit d’asile (National Court of Asylum, France) of 17 December 2009, T. (641626/09000446), and of 21 December 2009, K. (644277/09003107). See, with regard to the granting of refugee status, judgments of the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) of 9 January 2014, X, X and X/I (No 116 642), and of 26 August 2021, X/V (No 259 620), and judgments of the Upper Tribunal (Immigration and Asylum Chamber, United Kingdom), EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC), of 16 October 2012 (in particular paragraphs 6 and 7), and Mohammed [N], of 25 September 2020 (PA/04415/2019).

7

See, respectively, judgments of 7 November 2013, X and Others (C‑199/12 to C‑201/12, EU:C:2013:720); of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence) (C‑621/21, EU:C:2024:47); 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).

8

Although under EU law, two conditions for identification must necessarily be met, only one of those conditions is sufficient according to the Guidelines on International Protection No 2: ‘Membership of a particular social group’, within the context of Article 1A(2) of the Geneva Convention and/or its 1967 Protocol relating to the Status of Refugees of 8 July 2008 (paragraphs 11 to 13). For doctrine, see Goodwin-Gill, G.S. and McAdam, J., The Refugee in International Law, 3rd ed., Oxford University Press, Oxford, 2007, p. 73; Hathaway, J.C. and Foster, M., ‘Membership of a Particular Social Group: Discussion Paper No. 4 Advanced Refugee Law Workshop International Association of Refugee Law Judges Auckland, New Zealand, October 2002’, International Journal of Refugee Law, Vol. 15, No. 3, Oxford University Press, Oxford, 2003, pp. 477 to 491; Aleinikoff, T.A., ‘Protected characteristics and social perceptions: an analysis of the meaning of “membership of a particular social group”’, Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge University Press, Cambridge, 2003, pp. 263 to 311; and Parish, T.D., ‘Membership in a Particular Social Group under the Refugee Act of 1980: Social Identity and the Legal Concept of the Refugee’, Columbia Law Review, No 4, Columbia Law Review Association, New York, 1992, pp. 923 to 953.

9

This position is shared by the EUAA in its Guidance on membership of a particular social group, March 2020, p. 13, and by UNHCR in its position on claims for refugee status under the 1951 Convention relating to the Status of Refugees based on a fear of persecution due to an individual’s membership of a family or clan engaged in a blood feud’, paragraph 18.

10

See, by analogy, 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 43 and the case-law cited).

11

The German-language version reads as follows: ‘die Gruppe in dem betreffenden Land eine deutlich abgegrenzte Identität hat, da sie von der sie umgebenden Gesellschaft als andersartig betrachtet wird’ (emphasis added).

12

See, in that regard, EUAA, Guide on Membership of a particular social group, March 2020, in particular the part entitled ‘Legal analysis’, under the heading ‘Distinct identity’ (p. 14).

13

See 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 50 and the case-law cited).

14

See Bonnet, C., ‘Les trois étapes de la perception’, Le cerveau et la pensée, Le nouvel âge des sciences cognitives, Éditions Sciences Humaines, Auxerre, 2014, pp. 213 to 221.

15

See Girandola, F., Demarque, C. and Lo Monaco, G., ‘La perception sociale: formation d’impression, stéréotypes, préjugés et discrimination’, Psychologie sociale, Armand Colin, Paris, 2019, pp. 198 to 219.

16

The term ‘difference’ is not used in the German-language version of the second indent of the first subparagraph of Article 10(1)(d), in which it is indicated that the group is perceived by the surrounding society as not being of the same type or nature (‘von der sie umgebenden Gesellschaft als andersartig betrachtet wird’), which amounts to a difference.

17

See dictionary entry in Le Robert.

18

According to the dictionary entry in the Trésor de la langue française, the term ‘other’ ‘can distinguish or differentiate, from a first given or known part … serving as a reference point, one or more persons or one or more elements within a second part’.

19

Depending on the circumstances, persecution may also be perceived from the perspective of another reason for persecution referred to in Article 10 of Directive 2011/95, such as religion or political opinions.

See 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).

21

See judgment of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence) (C‑621/21, EU:C:2024:47, paragraph 56).

22

See 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 49 and the case-law cited).

23

C‑199/12 to C‑201/12, EU:C:2013:720.

See judgment of 7 November 2013, X and Others (C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 48).

25

Goodwin-Gill, G.S. and McAdam, J., op. cit., p. 85.

26

I am thinking, for example, of women and girls who are subjected to female genital mutilation, which is widespread in some countries or regions.

27

For an illustration of a case-by-case assessment before the European Court of Human Rights, see decision of 20 September 2007 declaring the application inadmissible, Elezaj v. Sweden (CE:ECHR:2007:0920DEC001765405), concerning the legality of the expulsion by the Swedish authorities of Albanian nationals involved in a family blood feud dating back to the 1950s.

28

See Rouland, N., Aux confins du droit : anthropologie juridique de la modernité, Éditions Odile Jacob, Paris, 1991, in particular the section entitled ‘Le corset du droit de la vengeance’, p. 84 et seq.

29

See, inter alia, Acheson, B., The Pashtun Tribes in Afghanistan, Pen and Sword Books, Barnsley, 2023, and EUAA, Country of Origin Information Report: Afghanistan – Individuals targeted under societal and legal norms, December 2017, paragraph 7, ‘Blood feuds and revenge killings’.

30

See, for example, EUAA, Country of Origin Information Report: Albania – Country focus, November 2016, paragraph 5.3.3; Office français de protection des réfugiés et apatrides (OFPRA), Rapport de mission en République d’Albanie du 3 au 13 juillet 2013, 2014, paragraph 1, and Gjeloshaj Hysaj, K., ‘La “reprise du sang” chez les Albanais : comment sortir du Moyen-Âge ?’, Confluences Méditerranée, Vol. 3, No 62, L’Harmattan, Paris, 2007, pp. 87 to 94.

31

EUAA, Country guidance: Afghanistan, op. cit., in particular, paragraph 3.18.1, entitled ‘Blood feuds’: ‘For example, family members involved in a blood feud may have a well-founded fear of persecution for reasons of membership of a particular social group, based on their innate characteristic (i.e., being a member of the family) and due to the fact that families are known and may have a distinct identity in the surrounding society’ (p. 90), and paragraph 3.18.2, entitled ‘Land disputes’: ‘Available information indicates that in the case of violence related to land disputes, there is in general no nexus to a Convention reason for persecution. This is without prejudice to individual cases where nexus could be established based on additional circumstances (e.g. ethnicity in relation to Taliban taking sides based on the ethnic origin of the person, land dispute leading to a blood feud etc.)’ (p. 92).

32

See Ellenberger, H.F., ‘La vendetta’, Revue internationale de criminologie et de police technique et scientifique, Vol. XXXIV, No 2, Polymedia, Morges, 1981, pp. 125 to 142, in particular p. 125.

33

See Acheson, B., op. cit., pp. 88 to 93.

34

See Bardhoshi, N., ‘De l’anthropologie de la vendetta en temps de “crise totale”’, Ethnologie française, Vol. 47, No 2, Presses universitaires de France, Paris, 2017, pp. 331 to 340. In its position on whether an individual belongs to a family or clan involved in a blood feud, UNHCR points out, however, that, more recently, ‘there have been reports of women and children becoming targets in blood feuds. They may also be killed or injured in attacks on male family members’ (paragraph 3).

35

See EUAA, Country of Origin Information Report: Albania – Country focus, November 2016, paragraph 5.3.3, entitled ‘Victims of blood feuds’: ‘A side effect of blood feuds is the fate of threatened families who remain in isolation for quite a long time to avoid violence. This also affects children who cannot go to school. In 2013 there were reportedly 67 self-isolated families due to blood feuds and 33 children, most of them in the northern areas, who could not attend school as a result.’

36

In its position on whether an individual belongs to a family or clan involved in a blood feud, UNHCR points out that ‘children can be kept at home for extended periods and prevented from attending school because the family fears they may be killed, attacked or kidnapped. Thus, while adult males are the primary target in a blood feud, other family members may also be at risk of death or lesser violations of their human rights’ (paragraph 3). See, in the same vein, ‘COI Focus – Albania, Blood Feuds in contemporary Albania: Characterisation, Prevalence and Response by the State’, Belgium, 29 June 2017.

37

See, for example, Third periodic report submitted by Albania under Article 19 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York by the United Nations General Assembly on 10 December 1984, United Nations Treaty Series, Vol. 1465, No 24841, 1987, p. 85, 19 July 2021, of the United Nations Committee against Torture, in which the Albanian government reported that 75 families were involved in a blood feud with 159 people confined, of whom 25 were children (paragraph 194).

—

38I recall that, according to the Court’s case-law, membership of a particular social group is to be established independently of the acts of persecution, within the meaning of Article 9 of Directive 2011/95, of which the members of that group may be victims in the country of origin (see 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)).

39Thus, in its position on whether an individual belongs to a family or clan involved in a blood feud, UNHCR emphasises that, ‘in blood feud cases, an individual is not attacked indiscriminately, but is rather targeted because he or she belongs to a particular family and on the basis of a long-established code. Compared to other cases in which a person may fear being ill-treated, or even killed, for instance, if they owe someone money or are targeted by the mafia, individuals fearing persecution in a blood feud scenario are not targeted because of their own actions but because of responsibilities viewed as having been incurred by their (living or dead) family members. They are thus not merely victims of a private vendetta but also victims of the code which regulates the blood feud tradition’ (paragraph 14).

40See judgment of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence) (C‑621/21, EU:C:2024:47, paragraphs 64 and 65).

41See judgment of 16 January 2024, Intervyuirasht organ na DAB pri MS (Women victims of domestic violence) (C‑621/21, EU:C:2024:47, paragraphs 66 to 69).

—