Refugee status determination in Austria: The Vulnerability of Single Women
Vulnerability is a contested concept. As part of our asylum case study in the project Vulnerability in the Context of Human Rights, we screened and analysed decisions of Austrian courts on international protection with regard to the role of vulnerability in the legal reasonings. The sample analysed consisted of 394 decisions of the appellate court in the asylum procedure, the Federal Administrative Court (BVwG), in which vulnerability featured expressly in the legal reasoning. In addition, relevant jurisprudence of the Constitutional Court (VfGH) and Supreme Administrative Court (VwGH) was taken into account.
While our research reveals that Austrian courts have used the concept of vulnerability mainly in the legal reasoning relating to subsidiary protection (see e.g. our blogpost on the RLI conference), this blogpost will focus on refugee status determination (RSD). The latter assessment has the objective of determining whether a person fulfils the requirements of the refugee definition laid down in the Refugee Convention, i.e. of a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’ (Art 1A(2) Refugee Convention; Sec. 3 Asylum Act) (1). Vulnerability featured in 25 % of the decisions of the sample in the legal reasoning of the RSD. Most BVwG decisions of the sample concerned male asylum seekers (57 %; female 16.5 %; family 26 %) and the top 3 countries of origin were Afghanistan (> 60 %), followed by Somalia and Iraq. In 20 % of the decisions of the total sample refugee status was granted.
It was striking that vulnerability appeared much more frequently in the legal reasonings regarding RSD concerning women (60 % of the decisions of the sample concerning women) compared to decisions concerning men (in 18 % of decision concerning men) or families: (in 18 % concerning families). Also the refugee status recognition rate was significantly higher in decisions referring to female applicants (in 58.5 % of all decisions relating to women refugee status was granted; in contrast, only in 11.5 % of decisions relating to men). In the assessment of refugee status, mainly single women (2) from the ‘Muslim world’, i.e. countries such as Afghanistan, Somalia, Iraq, or Syria who would be without family network, in particular ‘without male protection’, upon return, were framed as vulnerable. This blogpost will discuss this jurisprudence, in particular the relationship of the vulnerability concept to the refugee definition, its added value and finally repercussions regarding equality.
Single women being framed as vulnerable, relationship to refugee definition
In the analysed decisions, the BVwG often referred to single women as (particularly) vulnerable and sometimes established a link to the refugee definition. For instance, the BVwG considered a woman affected by forced marriage and female genital mutilation/cutting (FGM/C) who had separated from her first husband against his and her family’s will, had two other children with another man, as ‘generally vulnerable in Guinea without a male network’: As a woman ‘without protection by her nuclear family/clan’ she would be exposed to persecution by her husband and family, belonging to the ‘particular social group’ (PSG) of Guinean women affected by forced marriage and FGM/C. In this way she fulfilled the requirements of the refugee definition.
Similarly, in several decisions relating to single Somali women the BVwG assumed that the ‘lack of male protection’ would lead to a ‘particular vulnerability’ of single Somali women or vice versa (e.g. see here). The court held in several decisions that they were ‘at a particularly high risk of becoming victim of gender-specific violence in IDP camps’ (e.g. here or here). There would be a significantly high risk of persecution of single girls or women without male protection on grounds of membership of a certain social group. The VfGH required to sufficiently consider the ‘particular vulnerability of a single Somali destitute woman’ with regard to an impending forced marriage and already occurred genital mutilation and criticised if the BVwG had not addressed the belonging to the PSG of single women at risk of forced marriage in Somalia.
In the Afghanistan context, already before the Taliban took power in August 2021, the VwGH linked vulnerability to the potential need for international protection: It referred to single Afghan women as ‘particularly vulnerable in the male-dominated Afghan society’ and as potentially requiring ‘protection under asylum law’. Women could claim asylum if persecuted upon return due to their adopted ‘Western’-oriented lifestyle (see here and here). With regard to the situation of women under the Taliban regime 1996-2001, the VwGH held that the Taliban’s interference in living conditions of Afghan women as a whole assumed such an extent that discrimination reached the level of persecution. The VwGH upheld this case law in recent years with regard to areas controlled by the Taliban. The VwGH referred in its caselaw also to a ‘particular vulnerability’ of a single woman due to illness who would have to expect a violation of her physical and sexual integrity in the family circle in Afghanistan, especially as a result of a forced marriage. The BVwG caselaw of our sample, relating to a situation before the Taliban takeover, reflected this VwGH jurisprudence: For instance, the BVwG found a risk of persecution because upon return the woman would be accused of anti-state attitude and since she belonged to the PSG of Afghan women with a Western attitude. In this context, the BVwG referred to the increased vulnerability per se as a woman. In other decisions, the court argued that the complainant’s mother had credibly demonstrated asylum-relevant persecution because she was member of a ‘particularly vulnerable group of women with a “Western attitude“’. In a decision of 2020, however, the BVwG saw no risk of persecution: single women formed a particularly vulnerable group subject to massive restrictions, but in the concrete case these risks, discriminations and exclusions did not reach the extent necessary – the way of life did not violate prevailing social norms in Afghanistan to an extent necessary. After the Taliban had seized power in August 2021, the BVwG – referring to VwGH jurisprudence (particular vulnerability in male-dominated Afghan society) – stressed in its caselaw that there was a deterioration of the situation for women and that the threat to the complainant as a single woman who wants and needs to participate in social life was of asylum-relevant intensity in its entirety (for an example see here). Country of origin information (COI) would show that for single women ‘without male protection’ vulnerability has increased even more after the seizing of power (e.g. prevention from taking travelling alone and participating in the labour market) and that they would be threatened by different forms of violence which would – all together – reach an asylum-relevant intensity. The BVwG also referred to a PSG of single women in Afghanistan (see also here).
Also in the Syrian context, the BVwG regarded single women to belong to a PSG. It considered a ‘divorced single woman and female head of household (without male protection)’ to be at a particular risk of persecution and linked this to vulnerability: It held that she was ‘particularly vulnerable and at high risk of ending up in a “position of reduced power”, of getting “a certain reputation” and of becoming a victim of – also sexual, gender-specific – violence, exploitation and threats to her existence’ as well as being at risk of forced marriage. Due to her status as a single, divorced woman she would belong to a PSG. In another decision the BVwG considered a young, single and unmarried mother of two young children and returnee as ‘particularly vulnerable person’ belonging to the PSG of single women in Syria who would be threatened with persecution based solely on the fact that she is a single woman not receiving any social protection. Single women were regarded to be at particular risk of violence due to the conflict, the extent of the risk depending on social status and position of the woman or her family (e.g. unmarried girls, widows and divorcees being particularly at risk). Discrimination against women would reach a level of a severity equivalent to persecution.
In the Iraqi context, the BVwG argued that the risk of being ‘economic vulnerable’ of a quasi single female complainant could increase other persecution risks: She would have to take care for herself, three children and her mentally ill husband, her role being comparable to a single mom. The Court further pointed out that Iraqi society was not ready to accept single women.
The Court sometimes used – apart from being a single woman – additional elements of the individual case as argument and/or cumulated persecution grounds. For instance, the BVwG called a complainant a ‘particularly vulnerable person’ since she was young, single, unmarried, mother of two small children, a relative of a conscientious objector, and would have to return after an illegal departure. In the case of a Kurdish woman from Syria, the BVwG referred to her ‘particularly vulnerable position’ which would put her at a particular risk of gender-specific or sexualised violence by summarising several individual and general factors (3). Other elements of ‘vulnerability’ mentioned were e.g. being a member of a minority (4), assumed political opinion (5); care obligations for children (6); or that she was ‘particularly vulnerable due to her mental illness and continuing traumatisation’.
However, in some decisions women were not only framed vulnerable but also the context of their ‘vulnerability’ was explained, thus pointing to weak structures, uneven power relationships, or inequality and discrimination patterns: For instance, in the Somalia context, the BVwG explained that women and girls in Somalia were exposed to systematic sexual violence and state protection was not guaranteed; that they were systematically disadvantaged and severely marginalised compared to men; that without family support IDPs were extremely vulnerable and particularly affected by (sexual) violence and that vulnerability was directed against women without male protection per se; that Somali society was deeply patriarchal and women faced severe discrimination and violence and that a lack of protection by the clan or male family members (as a substitute for the non-existent state protection) increased this risk. In the Syrian context, the Court referred to a low social and economic position of power which would particularly expose the female complainant to a risk. Regarding women in Afghanistan the Court referred to discrimination and gender-based violence and the particular risk of abuse in case of behaviour considered not to be in conformity with gender roles imposed by society, tradition or the legal system.
Sometimes the court referred to COI as potential source when using the notion ‘vulnerability’. For instance, regarding single Iraqi women, the BVwG referred in its legal reasoning to ‘vulnerable groups’ described by UNHCR Protection Considerations. In this document UNHCR recommends the granting of asylum to women belonging to specific categories such as survivors of sexual violence or women without real family support. While UNHCR referred several times to vulnerability in this document, it did not use the notion ‘vulnerable group’. Regarding the risk of being ‘economically vulnerable’, the Court referred to an EASO country guidance which mentioned to ‘vulnerable position’.
Discussion and Conclusion
In scholarly research the concept of vulnerability has been hailed as a means to achieve more substantive equality. Others, however, have criticised the concept for its vagueness and inconsistencies leading to legal uncertainties and negative effects such as gender-stereotypical representations, stigmatization – including the invoking of sexist narratives – and exclusionary effects with regard to gender. In the case study on decisions of Austrian courts on international protection, we wanted to find out whether the usage of the vulnerability concept adds anything to the refugee definition from a legal perspective. The examples of the sample mentioned above do not indicate an added value. There exist already jurisprudence and other tools of interpretation regarding the elements of the refugee definition at different levels, including in Austrian jurisprudence. The concept of vulnerability does not form explicit part of the refugee definition – neither in the Refugee Convention, nor in the EU Qualification Directive, nor at Austrian level.
At least in the cases of the sample concerning women facing systematic discrimination and sexual violence simply because they are women the requirements of the refugee definition would be fulfilled without making use of the concept of vulnerability. In other cases, the formulation of a ‘particular vulnerability’ had merely the meaning of being ‘at a particularly high risk’ or being ‘particularly exposed to the risk’. In general, the mentioning of the word ‘vulnerability’ or ‘vulnerable’ does not relieve caseworkers or judges from delivering a sound reasoning why the elements of the refugee definition are fulfilled. Apart from that it must be questioned whether it is desirable from a gender equality perspective that almost only women are framed vulnerable. Why not instead looking at structures enabling persecution? This is already partly addressed in the Austrian jurisprudence (in particular where the court discusses striking inequality of Afghan or Somali woman, see above) – still the court finally frames the woman as vulnerable thereby focusing on the victim.
-  Assessment of an internal protection alternative did not form part of the analysis.
-  In our sample, men were framed vulnerable only in exceptional cases: The BVwG held that there would be a risk of significant interference with physical and psychological integrity of the Somali male complainant as a ‘member of the particular social group of alone underage member of minority clan, who are considered particularly vulnerable in IDP camps and can become victims of violence, including sexual violence’. See e.g. here (return to area controlled by Al Shabaab, group of young men (forcibly) recruited by Al Shabaab) or here.
-  Kurdish woman in Syria, low social and economic position of power, complainant assumed to be oppositional due to her brother’s attitude and regime uses sexualised violence specifically against members of the opposition and family members.
-  E.g. here or here. Combination with persecution on ground of ethnicity.
-  E.g. brother’s oppositional attitude.
-  Future care obligations for a child would ‘make her even more vulnerable’ in case of return.