The case concerns the interpretation of Article 12(1)(a) of the 2011/95/EU recast Qualification Directive (recast QD).

The applicant, XT, is a stateless person of Palestinian origin, born in Damascus (Syria), who holds a registration card as a Palestinian refugee in the UNRWA Yarmouk refugee camp. From 2013 to 2015, he worked in Lebanon and then returned to Syria, but left a few days later due to the war. He arrived in Germany, where he was granted subsidiary protection on 29 August 2016. He challenged the decision, and on appeal, the Administrative Court ordered the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, BAMF) to grant him refugee status. On 18 December 2017, the Higher Administrative Court dismissed the appeal brought by BAMF, holding that XT, a stateless person of Palestinian origin, had to be regarded as a refugee within the meaning of Article 12(1)(a) of the recast QD, as the protection received from UNRWA had ceased for reasons independent of the applicant. That court also noted that XT had no access to protection from UNRWA before leaving Syria and that the Hashemite Kingdom of Jordan and Lebanon had closed their borders to Palestinian refugees in Syria. On revision, the Federal Administrative Court decided to stay the proceedings and refer several questions to the CJEU.

The first, second and fourth questions were examined together and sought to ascertain whether  the second sentence of Article 12(1)(a) of Directive 2011/95 (recast Qualification Directive (QD) must be interpreted to mean that to determine whether UNRWA’s protection or assistance has ceased only the field of the UNRWA area of operations where stateless persons of Palestinian origin had their actual residence at the time of their departure from the said area must be considered, or whether also of other fields falling within that area of operations. To answer this question, the CJEU recalled and relied on the considerations held in the case of Alheto (C-585/16, 25 July 2018).

Citing Advocate General Tanchev’s Opinion, the court noted that neither Article 12(1)(a) of Directive 2011/95 nor Article 1(D) of the Geneva Convention refer to the residence of the person concerned. They refer only to whether the person is receiving assistance or protection from UNRWA, or whether that protection or assistance has ceased. Thus, the wording of those provisions requires consideration of whether the person concerned has the possibility of receiving protection or assistance from UNRWA’s area of operations, which includes the Gaza Strip, the West Bank (including East Jerusalem), Jordan, Lebanon, and Syria.

The court held that competent administrative or judicial authorities must verify, based on an individual assessment of all relevant evidence, whether the person can receive protection or assistance from UNRWA. The court noted that this depends both on the agency’s ability to provide such protection or assistance in a given area of operations, and on whether the stateless person can practically access the territory falling within that field or return to it.

Noting that registration with UNRWA does not grant the right to access or move within its area of operations, the CJEU held that it was important to ascertain whether the stateless person of Palestinian origin concerned had, at the time of his or her departure from UNRWA’s area of operations, the concrete possibility of accessing one of the five fields of UNRWA’s area of operations in order to receive UNRWA’s protection or assistance. The CJEU indicated that having the right to obtain a residence permit in the State or in the autonomous territory of the relevant field of UNRWA’s area of operations is an indication that that stateless person is able to access that area and thus receive UNRWA’s protection or assistance, provided that UNRWA is able to provide that protection or assistance to him or her in that area. In the absence of such a right, having family ties in a given field of UNRWA’s area of operations, having the actual or habitual residence in that area or having resided there before leaving that area may be relevant, as long as the States or territories concerned consider that such elements are sufficient to enable, irrespective of the granting of any residence permit, a stateless person of Palestinian origin to access and safely remain on their territory. In addition, the court highlighted that relevant evidence included declarations or practices by authorities of the States and territories showing a change of attitude towards stateless persons of Palestinian origin, especially those expressing an intention to no longer tolerate their presence if they lack a right of residence.If based on an assessment of all relevant factors, it can be concluded that the stateless person of Palestinian origin concerned was able to reach and safely remain on the territory of one of the fields of UNRWA’s area of operations in which that agency was in a position to offer him or her its assistance or protection, it cannot be considered that the protection or assistance from UNRWA has ceased.

The third question concerned whether the second sentence of Article 12(1)(a) of the recast QD must be interpreted to mean that UNRWA’s protection or assistance ceases where a stateless person of Palestinian origin left UNRWA’s area of operations from a field of that area in which his or her personal safety was at serious risk and in which UNRWA was not in a position to provide that individual with protection or assistance, even though, first, that individual voluntarily travelled to that field from another field in that area in which his or her personal safety was not at serious risk and, secondly, he or she could expect neither to receive protection or assistance from UNRWA in the field to which he or she travelled nor to be able to return at short notice to the field from which he or she came.

The court first highlighted that to accept that voluntary departure from UNRWA’s area of operations and, therefore, voluntary renunciation of the assistance provided by that agency would trigger the application of the second sentence of Article 12(1)(a) of Directive 2011/95 would run counter to the objective pursued by the first paragraph of Article 1(D) of the Geneva Convention. Citing the considerations in Alheto, the CJEU held that a departure cannot be considered involuntary if the person could access another field of that area to receive effective protection or assistance from UNRWA.

Next, the court held that stateless persons of Palestinian origin could not be considered forced to leave, and protection could not be understood to have ceased if the individuals left the UNRWA area of operation from a field area where their personal safety was at serious risk, and which UNRWA was not in a position to provide with protection if

• such individuals voluntarily travelled there from an area where their personal safety was not at serious risk and in which they could receive protection, and
• if they could not reasonably expect, on the basis of specific information available to them, to receive protection from UNRWA in the field to which they travelled, to be able to return at short notice to the field from which they came.

The court concluded that this was for the national courts to verify, in the context of an individual assessment of all the relevant circumstances. It highlighted that such circumstances must be reasonably foreseeable at the time of departure on the situation of UNRWA operations, and in that respect, sudden and unforeseeable development of the situation, such as closure of borders between fields of areas of operations or the outbreak of conflict in one of those fields, were also important elements to be considered. In the case of XT, it would be relevant to examine the specific information available to XT about the situation in Syria at the time of his departure from Lebanon. The court noted that XT claimed to have left Lebanon due to a lack of a valid residence permit and the tightening of controls by the Lebanese security forces, which, in the absence of such a permit, were deporting persons such as XT to the Syrian border. From those circumstances, the CJEU concluded that, taken as a whole, XT’s departure from the UNRWA area of operations was not voluntary.

Note that information can be found on this case in the EUAA Case Law Database as it was presented before the Federal Administrative Court [Bundesverwaltungsgericht]: Applicant (Palestine) vs Federal Office for Migration and Refugees (BAMF), BVerwG 1 C 5.18, ECLI:DE:BVerwG:2019:140519B1C5.18.0, 14 May 2019. 

Palestine (*) - This designation shall not be construed as recognition of a State of Palestine and is without prejudice to the individual positions of the Member States on this issue.