FORCED MARRIAGE AND REFUGEE STATUS: ANALYSING THE INTERSECTION OF GENDER-BASED VIOLENCE AND THE CONVENTION GROUNDS

Forced marriage is one of the most severe forms of gender-based violence recognised in international law. It takes away a person's control over her own body, her physical freedom, and her right to choose a spouse.[1] Despite this consensus, national asylum systems have struggled to give consistent protection to victims of forced marriage seeking refugee status under the 1951 Convention Relating to the Status of Refugees.[2] The difficulty comes from a structural gap in the Convention itself. The Convention defines a refugee through five grounds, and gender is not one of them.[3] This absence has shaped refugee law for decades. Courts have often treated forced marriage as a private, domestic matter, or have demanded proof of extra physical violence before they would call it persecution.[4] This paper addresses two questions through close analysis of recent case law and current conditions in Afghanistan. First, does the 2024 ruling of the Court of Justice of the European Union in Bundesamt für Fremdenwesen und Asyl v AH and FN mark a genuine structural shift in how persecution is assessed for Afghan women, or does it simply apply an existing legal test to new facts?[5] Second, can forced marriage count as an independent act of persecution on its own, or must courts always link it to another recognised harm, such as domestic violence or female genital mutilation, before it qualifies for protection?[6] These questions matter because they determine whether victims of forced marriage can access refugee status without proving additional physical harm, or demonstrating a risk beyond their membership in a systematically oppressed group.[7] The argument advanced here is that AH and FN marks a genuine shift in how gender-based persecution is assessed under the Convention framework.[8] By holding that the accumulation of Taliban measures against women amounts to persecution, the Court established a group-based approach to protection that does not require individualised proof beyond establishing gender and nationality as an Afghan woman.[9] The Court also treated forced marriage as a standalone act of persecution in its own right, without requiring proof of accompanying physical violence or individual targeting.[10] This resolves years of fragmented domestic case law that treated forced marriage as an ancillary harm, and it offers a workable model for group-based protection more broadly.[11] The contribution of this paper lies in testing how far the Court's reasoning can travel beyond Afghanistan.[12] While AH and FN succeeded where earlier US and UK decisions did not, its reach into cases involving non-state actors, or regimes without systematic legal discrimination, remains uncertain.[13] This paper tests these limits against the Taliban's May 2026 Code on Judicial Separation of Spouses, which further entrenches gender-based restriction and narrows the avenues available to women seeking to leave forced marriages.[14] The analysis shows that the Court's approach holds up well against this newer development, though its extension to contexts where harm comes from private actors rather than state policy calls for real caution.[15] [1] Amanda R Fell, ‘From Family, They Flee: Asylum for Victims of Forced Marriage’ (2019) 84(3) Brooklyn Law Review 1027. [2] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 1A (2). [3] Convention (n 2). [4] Kimberly Gauderman and M Gabriela Torres, 'The Fragility of Particular Social Groups: The Differential Weight of Rape in Gender-Based Violence and LGBTQ+ Asylum Cases' in Kimberly Gauderman (ed), Practicing Asylum: A Handbook for Expert Witnesses in Latin American Gender- and Sexuality-Based Asylum Cases (University of California Press 2023). [5] Bundesamt fur Fremdenwesen und Asyl v AH and FN, Joined Cases C-608/22 and C-609/22, ECLI:EU:C:2024:838, paras 43-44. [6] Fell (n 1). [7] Amnesty International, 'Afghanistan: New Code Enabling Child Marriage Compounds Dismal Situation for Women's and Girls' Rights' (10 June 2026). [8] AH and FN (n 5). [9] AH and FN (n 5). [10] AH and FN (n 5). [11] Nikolas Feith Tan and Meltem Ineli-Ciger, 'Group-Based Protection of Afghan Women and Girls Under the 1951 Refugee Convention' (2023) 72(3) International & Comparative Law Quarterly 793. [12] Gauderman and Torres (n 4). [13] NS (Social Group - Women - Forced Marriage) Afghanistan CG [2004] UKIAT 328. [14] Amnesty International (n 7). [15] Gauderman and Torres (n 4).

Authors: SHREYA LENIN HALINGALI Registration ID: 1013304 | Published Paper ID: IJLRA13304Year: Oct-2026 | Volume: 3 | Issue: 7Approved ISSN: 2582-6433 | Country: Delhi, IndiaPage No.: 598- 611