Opinion of Advocate General Richard De La Tour in the case of Bundesamt für Fremdenwesen und Asyl v AN, C‑217/23

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.