The applicant, Palestinian refugee from Syria, has left the country with a Schengen visa and his asylum application was rejected. He has presented a Syrian passport for Palestinian refugees and a confirmation of registration with UNRWA. Although his asylum application was rejected, he was provisionally admitted because the deportation could not be implemented in view of the situation in Syria and his wife, and four children were also temporarily admitted.

The applicant and his family applied for recognition of statelessness and both the SEM and the Federal Administrative Court rejected the claim. He further submitted a complaint in public law before the federal tribunal.

The Federal Tribunal reiterated that it is bound by the facts presented before the lower court and noted that UNRWA was created in view of the special situation of the Palestine refugees in need of assistance and protection with the purpose to provide direct assistance to Palestinian refugees located in one of the five theatres of operations (Lebanon, Syria, Jordan, West Bank and Gaza Strip). UNRWA mandate was last extended until 30 June 2023. The applicant submitted reports on the situation in UNRWA and some family photos and other documents that we deemed as new in the proceedings and deemed as inadmissible.

The applicants alleged that UNRWA can no longer provide assistance, that they voluntarily left the country, but it is impossible for them to obtain travel documents from Syria. The Federal tribunal considered that it is not decisive for the outcome of the proceedings whether UNRWA can still exercise its mandate in Syria and whether the applicants left this state voluntarily on 17 May 2014.

The Federal Tribunal reiterated the definition of statelessness and the principle applicable in accordance with the Stateless Persons Convention to consider that the applicants are de iure stateless because the term stateless person only includes persons who do not formally have citizenship (de iure stateless persons). According to swiss jurisprudence on the matter, Art. 1 of the Convention on Stateless Persons is to be interpreted in such a way that stateless persons are persons who have been deprived of their nationality through no fault of their own and have no possibility of regaining it.

The Federal Tribunal further examined whether the exclusion clause applies for the applicants since Art. 1 para. 2 subpar. i of the Stateless Persons Convention, the Convention does not apply to persons who are currently receiving protection or assistance from any UN agency or body other than the UNHCR, as long as they enjoy that protection or assistance. This provision is similar as the Article 1D of the Geneva Convention and Article 12(1)(a) of the QD.

The Federal Tribunal made an extensive analysis of the Refugee Convention and the Article 1D exclusion clause and the Statelessness Convention to state that a cessation of protection or assistance from UNRWA, which would result in the application of the inclusion clause of Art. 1 para. 2 of the Geneva Convention, is only to be affirmed if a person has actually made use of the protection or assistance of UNRWA and this is no longer granted to him for a reason which he cannot control and which is independent of his will. If the person can objectively claim the protection or assistance of UNRWA again, it can be assumed that the person concerned is still within the meaning of Art. 1 par. 2 of the Geneva Convention and enjoys the protection or assistance of UNRWA. 

The question arises as to which area is decisive for assessing whether a person registered with UNRWA who has left the area of operations can again claim the protection or assistance of this organisation. This assessment could either focus solely on the respective operational area (Lebanon, Syria, Jordan, West Bank or Gaza Strip) in which the person concerned was actually staying when leaving the operational area of UNRWA, or on the entire operational area (or all operational areas) of UNRWA.

The Federal Tribunal considered that for the applicability of the Stateless Persons Convention, the only decisive factor would be whether the person concerned could return to the area of operations where they were previously residing, or whether the person concerned could go to one of the five areas of operations in order to seek the protection or assistance of UNRWA there.

The wording of Art. 1 para. 2 subpar. i Stateless Persons Convention does not refer to the (earlier) residence of the person concerned respectively to a specific area of operations, but to the protection or assistance of the organisation. It is therefore necessary to consider the possibility for the person concerned to be granted protection or assistance by UNRWA in its entire mandate or area of operation (see also Bundesrepublik Deutschland v XT, C-507/19, ECLI:EU:C:2021:3, 13 January 2021). In principle, it is therefore decisive whether the person concerned can voluntarily go to one of the operational areas of UNRWA's area of operations in order to claim the protection or assistance there. However, the person concerned cannot be expected to go to an area of UNRWA operation to which he has no connection in order to claim protection or assistance. This is applicable only because UNRWA's area of operations includes locations that greatly differ one from another.

In light of the above, the recognition of refugee status for a person registered with UNRWA can be excluded only if the person concerned has again the opportunity to claim the protection or assistance of UNRWA in one of its areas of operations with which is has a minimum relationship and a mere transit is not enough for a corresponding contact point in that operational area.

The applicant is registered with UNRWA and initially sought its protection or assistance in Syria. In May 2014 he left the UNRWA area of operations. The Federal Tribunal had to clarify whether the applicant could voluntarily return to Syria and claim assistance or protection of UNRWA there. It noted that the applicant is currently temporarily admitted in Switzerland because the enforcement of his deportation was considered unreasonable, and it appears that the situation in Syria has not changed. The fact that the applicant has a Syrian passport for Palestinian refugees does not change the fact that UNRWA's help in Syria was not available. With regard to availability of protection or assistance in one of the other four areas of operations, the Federal Tribunal found that there are no minimal personal points of contact in one of the four operational areas mentioned. Consequently, it cannot be assumed from the outset that he can claim UNRWA's protection or assistance in any of these areas. The Federal Tribunal concluded that the exclusion clause is not applicable and that the applicants have to be recognised as stateless persons.