Note: The CJEU pronounced a judgment replying to the preliminary reference in Bundesrepublik Deutschland vs XT, C-507/19, 13 January 2021.

The applicant is a stateless Palestinian who lodged an application for international protection in February 2016 and requested to be granted refugee status ipso facto in accordance with §3 paragraph 3 sentence 2 of the AsylG (Asylum Act). By decision on 29 August 2016, the Federal Office for Migration and Refugees granted him subsidiary protection and rejected the application for refugee status. The administrative court overturned the decision considering that the applicant has to be granted refugee status. In the appeals procedure, the applicant submitted a copy of a registration certificate provided by the UNRWA stating that he was registered as a family member for the Yarmouk camp (‘Family Registration Card’). The Higher Administrative Court dismissed the applicant’s appeal and stated that there was no need to clarify the issue of refugee status: he was a stateless ethnic Palestinian and the UNRWA’s protection extends to him. It was assessed that he did not fall within the exclusion criteria because the UNRWA protection ceased for reasons outside his will. He was in a very unsafe personal condition when he left Syria and his departure should not be considered voluntary, this fact justifying him being granted subsidiary protection. At the time of his departure, he also did not have the option of making use of the UNRWA’s protection in other parts of the area of operation in question. Jordan and Lebanon had already sealed their borders to Palestinian refugees residing in Syria before his departure from Syria. In his appeal before the Federal Administrative Court, the applicant, invoked amongst other arguments, that there was a need to clarify the issue of whether the use of article 12 paragraph 1 a sentence 2 of Directive 2011/95/EU would be ruled out in a scenario in which a stateless Palestinian who is covered by the UNRWA’s protection or assistance stays in an operational area of the UNRWA which is different from the operational area in which he formerly received the services of the Relief and Works Agency for a period of time that is longer than the period of time he spent in the operational area in which he received the aforementioned services, and does not seek the UNRWA’s protection or assistance while in the operational area in which he currently resides.

The Federal Administrative Court referred the case to the CJEU, for a preliminary ruling, with the following questions in accordance with article 267 TFEU:

"1. When assessing the question of whether, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, a stateless Palestinian is no longer granted protection or assistance of the UNRWA, is account to be taken from a geographical perspective solely of the respective field of operation (Gaza Strip, Jordan, Lebanon, Syria, West Bank) in which the stateless person had his or her actual residence upon leaving the area of operations of the UNRWA (in this case: Syria), or also of further fields of operation belonging to the area of operations of the UNRWA?

2. If account is not solely to be taken of the field of operation upon leaving: Is account always to be taken, regardless of further conditions, of all the fields of operation of the area of operations? If not: Are further fields of operation only to be taken into consideration if the stateless person had a substantial (territorial) connection to that field of operation? Is a habitual residence - at the time of or prior to leaving - required for such a connection? Are further circumstances to be taken into consideration when examining a substantial (territorial) connection? If so: Which ones? Does it matter whether it is possible and reasonable for the stateless person to enter the relevant field of operation when leaving the UNRWA area of operations?

3. Is a stateless person who leaves the area of operations of the UNRWA because his or her personal safety is at serious risk in the field of operation of his or her actual residence, and it is impossible for the UNRWA to grant him or her protection or assistance there, entitled, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, ipso facto to the benefits of the Directive even if he or she previously went to that field of operation without his or her personal safety having been at serious risk in the field of operation of his or her former residence and without being able to expect, according to the circumstances at the time of the move, to experience protection or assistance by the UNRWA in the field of operation into which he or she moves and to return to the field of operation of his or her previous residence in the foreseeable future?

4. When assessing the question of whether a stateless person is not to be granted ipso facto refugee status because the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU ceased to apply once he or she left the area of operations of the UNRWA, is account to be taken solely of the field of operation of the last habitual residence? If not: Is consideration also, by analogy, to be given to the areas of which account is to be taken under no. 2 for the time of leaving? If not: Which criteria are to be used to determine the areas which are to be taken into consideration at the time of the decision on the application? Does the cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU require the (state or quasi-state) bodies in the relevant field of operation to be prepared to (re)admit the stateless person?

5. In the event that, in connection with the satisfaction or cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU, the field of operation of the (last) habitual residence is of significance: Which criteria are decisive for establishing habitual residence? Is lawful residence authorised by the country of residence required? If not: Is there at least a need for the conscious acceptance of the residence of the stateless person concerned by the responsible bodies of the field of operation? If so in this respect: Does the presence of the individual stateless person have to be specifically known to the responsible bodies or is the conscious acceptance of residence as a member of a larger group of people sufficient? If not: Is actual residence for a relatively long period of time sufficient in itself?