Refugee Status for Palestinians Where UNRWA Assistance Has Ceased
In the ever-evolving landscape of international law, a notable recent occurrence is the delivery of Advocate General Emiliou’s Opinion in Case C‑563/22 SN and LN on 11 January 2024. This case, arising from a preliminary ruling request by Bulgaria’s Administrative Court, delves into the interpretation of Article 12(1)(a) of the Qualification Directive (Directive 2011/95/EU), shedding light on the specific legal regime applicable to stateless persons of Palestinian origin.
In this post, we embark on a comprehensive exploration of the Advocate General’s Opinion and its potential ramifications in the UK, particularly considering the aftermath of Brexit. While acknowledging that EU law and the Court of Justice of the European Union’s rulings no longer bear binding force in the UK, we delve into the intricacies of how this Opinion may still hold relevance within the UK jurisdiction.
The Advocate General’s Opinion and its Relevance in the UK
On 11 January 2024, Advocate General Emiliou delivered his Opinion in Case C‑563/22 SN and LN, following a request for a preliminary ruling from Bulgaria’s Administrative Court regarding, inter alia, the interpretation of Article 12(1)(a) of the Qualification Directive (Directive 2011/95/EU). This details the specific legal regime applicable to stateless persons of Palestinian origin who have availed themselves of the protection or assistance of the United Nations Relief and Works Agency (for Palestine Refugees in the Near East) (UNRWA).
Since Brexit and the repeal of EU law, the Court of Justice of the European Union’s preliminary rulings have no binding force in the UK, other than for matters relating to the Withdrawal Agreement. Similarly, EU law is no longer directly applicable and the provisions of the Qualification Directive have likely been repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, as the Supreme Court concluded in relation to the Procedures Directive during the Rwanda litigation.
Nonetheless, this Opinion (and provided the Court of Justice takes the same view in the ensuing preliminary ruling) is of relevance to the UK jurisdiction. Article 12(1)(a) of the Qualification Directive both refers to and mirrors the contents of Article 1D of the 1951 Refugee Convention, to which the UK is a signatory. This states:
This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
In Said (Article 1D : meaning)  UKUT 413, the Upper Tribunal held that the Court of Justice’s pronouncement on the meaning of Article 12(1)(a) of the Qualification Directive is a pronouncement on the autonomous meaning of Article 1D.
Article 1D of the Refugee Convention
Article 1D of the Refugee Convention contains both an exclusion and an inclusion clause. If a person is receiving protection or assistance from agencies of the UN other than the UNHCR, then the Refugee Convention will not apply to them. However, if that protection or assistance can be considered to have ceased, the exclusion clause no longer applies and such persons shall ipso facto (by reason of this alone) become entitled to the benefits of the Refugee Convention: refugee status. In practice and although not explicitly stated as such, these clauses apply only to stateless persons of Palestinian origin and, more specifically, only to those who have availed themselves of the protection or assistance of UNRWA.
In his Opinion, AG Emiliou confirms the context in which Article 1D arose: It was drafted shortly after the Israeli–Arab conflict of 1948, with a view to, inter alia, preventing a mass exodus from the geographical area which used to be Palestine and, at the same time, to ensuring that stateless persons of Palestinian origin – who have been recognised as refugees by the international community – continued to receive effective protection or assistance until their position had been definitively settled in accordance with the relevant resolutions of the General Assembly of the United Nations. It has been held that stateless persons of Palestinian origin must be able to receive effective protection or assistance from UNRWA, and not that they are simply guaranteed the existence of a body or agency, the task of which it is to provide such assistance or protection.
Previous CJEU Rulings
The Court has previously ruled (in C-364/11 – Abed El Karem El Kott and Others) that the cessation of UNRWA’s protection or assistance happens not only if that agency ceases to exist, but also if the person concerned has been forced to leave UNRWA’s area of operation for reasons unconnected with his or her will. Such is the case if the personal safety of the individual concerned is at serious risk (first requirement) and if it is impossible for that agency to guarantee that that person’s living conditions in its area of operation are commensurate with the mission entrusted to it, which is to ensure ‘dignified’ living conditions (second requirement).
In a previous ruling in Case C-349/20, NB and AB v Secretary of State for the Home Department, the Court confirmed that, in assessing whether UNRWA assistance has ceased for a person, the national authorities must consider not only the reasons which led the person to leave the UNRWA’s area of operation, but also whether an effective possibility of returning exists. Account must be taken of factual elements, as they exist at, not only at the time of that person’s departure from the UNRWA’s area of operation, but also when his or her application is under consideration.
As such, Palestinians that have been registered with UNRWA and received assistance or protection fall outside the scope of the Refugee Convention, unless that protection or assistance has ceased. If, following an asylum application, it is found that protection or assistance has ceased and no other exclusions from the Refugee Convention are applicable, refugee status must be accepted without further consideration of whether the applicant is a refugee within the meaning of Article 1A(2) of the Convention. The request for the preliminary ruling involved questions relating to the assessment of whether the UNRWA’s protection or assistance has ceased.
Legal Criteria in Considering whether the UNRWA’s Assistance has Ceased
Taking this as a starting point and in view of the questions of the referring court, AG Emiliou sought to clarify the legal criteria that must be applied and the circumstances that are relevant to the assessment of whether the UNRWA’s assistance or protection has ceased. In that context, AG Emiliou confirmed that the the general living conditions prevailing in the area of operation of UNRWA (or a part of it) can be sufficient to establish that a person will be exposed to treatment incompatible with Article 3 ECHR (and thus, the living conditions are “undignified”), if he or she is to return there, and, therefore, that the UNRWA’s protection or assistance in respect of him or her has ceased. AG Emiliou listed three types of situations where that may be the case:
1. Situations where the general living conditions are undignified for everyone.
AG Emiliou stressed that only a particularly serious situation can produce such a blanket prohibition and what is required is a serious risk that persons returned to that area would, because of those major operational problems or systemic flaws, find themselves in a situation of extreme material poverty that does not allow them to meet their most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines their physical or mental health or puts them in a state of degradation incompatible with human dignity. In such cases, where that threshold is met for virtually everyone, applicants cannot be required to demonstrate that those general conditions are undignified for them in an individualised manner, or that they are specifically affected.
2. Situations in which the applicant must show that he or she belongs to a particularly vulnerable group.
Where the general living conditions are not deemed undignified for virtually everyone, the circumstances may still generate ‘undignified living conditions’ for certain particularly vulnerable groups of persons (or certain particularly vulnerable persons, as I will explain in the next section) by not allowing them to meet their most basic needs. Children, for instance, have been considered a particularly vulnerable group with specific needs and it is generally accepted that living conditions which cannot be regarded as ‘undignified’ for adults could nevertheless be considered as such for children as a group. In such situations, persons belonging to a particularly vulnerable group do not have to show that the general living conditions are undignified for them in an individualised manner, so long as it can be established, first, that those general living conditions are severe enough to be deemed ‘undignified’ for anyone belonging to that group and, second, that the applicant’s relevant personal circumstances (for example, the age, gender or particular condition or disability) qualify him or her as part of that group.
3. Situations where the person concerned must show that he or she has a particular vulnerability or is specifically affected by the general living conditions because of his or her personal circumstances.
Where the general living conditions cannot be regarded as undignified for virtually everyone or for one or more particularly vulnerable groups, living conditions may still be undignified for certain persons who must be regarded as particularly vulnerable on account of their personal circumstances, or who are specifically affected by the same general conditions by reason of factors particular to their personal circumstances. In such cases reliance should be placed on the impact of the general living conditions to the person in an individualised manner.
In summary, Palestinians who were registered with UNRWA and who have fled part of its area of protection may be eligible for refugee status if they can demonstrate that the situation in that part of UNRWA’s area of operation (for instance, the Gaza strip) has led to general living conditions that are: i) undignified (in other words, meet the Article 3 ECHR threshold) for virtually everyone; ii) undignified for anyone belonging to a particularly vulnerable group, to which the applicant belongs (for instance, children); or iii) undignified for the applicant themselves, on account of their personal circumstances or the degree to which they would be specifically affected by the general living conditions.
AG Emiliou stressed that an asylum application ought first to be made and these matters must be considered and assessed on an individual basis. Even if it is concluded that the applicant has availed themselves of protection or assistance from UNRWA and that this protection has ceased, the person may still be excluded from refugee status by other provisions of the Refugee Convention (such as Article 1F). It was also confirmed that whether a person may be entitled to humanitarian protection is a separate consideration that is not relevant to the assessment under Article 1D.
The Significance of the Advocate General’s Opinion
This Opinion is not without its limitations. AG Emiliou was clear that the assessment of the factual circumstances is a matter for the national authorities and domestic courts and the Court of Justice can only interpret EU law. Further, it was clear that whether a person is entitled to refugee status on account of Article 1D should be considered on a case by case basis in the context of an asylum application.
However, the Opinion is also important: it paves the way for an assessment, made within the context of individual asylum claims (although with wider ambit lest the circumstances change), on whether the situation in the Gaza Strip has currently reached a level of severity that meets the threshold of Article 3 ECHR for virtually everyone or for particularly vulnerable groups. In such situations, an asylum applicant who was registered with UNRWA in the Gaza Strip and who has fled and claimed asylum in a country that is a signatory to the Refugee Convention can rely on the general living conditions there to demonstrate that the UNRWA’s protection or assistance has ceased, which may entitle them to refugee status. It would still be helpful in any event to particularise the impact on the person, although not necessary, provided that the general living conditions are found to have reached that level of severity.
As set out above, the Court of Justice may take a different view and their ruling would not be binding on the UK, but it is difficult to envisage a valid reason for the Home Office and domestic courts taking a different approach, in view of the mirroring content of Article 1D of the Refugee Convention and Article 12(1)(a) of the Qualification Directive.
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