The State Secretary rejected an application from a national from Palestine to grant him a temporary asylum residence permit on 5 November 2021. The applicant filed an appeal against the decision and the District Court of the Hague upheld the appeal finding it well-founded, annulled the decision of the State Secretary and ordered them to take a new decision on the application.

The national is of Palestinian descent and is stateless. He was born in Libya and moved to the Gaza Strip where he lived for 13 years. He attended school there, worked as a contractor and then in the military for the Palestinian authorities. Due to issues with Hamas, he fled to Libya in 2008, then to Egypt when Libya was at war, and finally returned to Libya. The applicant first applied for asylum in the Netherlands in 2014. The State Secretary rejected the first application on 22 July 2014 on the grounds that the applicant falls within the scope of Article 1(D) Refugee Convention, which means the Convention does not apply to him, and that he did not have a well-founded fear of being persecuted because of his problems with Hamas.

The State Secretary rejected the second asylum application on 2 February 2016. In that decision, the State Secretary reversed the previous decision and claimed that the applicant does not fall within the scope of Article 1(D) of the Refugee Convention. According to the State Secretary, the applicant does not fall under the mandate of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (hereinafter: UNRWA). In the same decision, the State Secretary issued a return decision. This decision was upheld by the Court of the Hague.

The Minister of Justice and Security rejected the third asylum application on 3 June 2019 and issued an entry ban against the foreign national. The applicant submitted a fourth asylum application on 19 January 2020. To support his claim that he does qualify as a refugee under Article 1(D) of the Refugee Convention, the applicant provided his UNRWA registration card as evidence. He argued that the Sate Secretary should be required to issue a permit because UNRWA is no longer able to offer living conditions in the Gaza Strip. The State Secretary rejected the application on 5 November 2021. The State Secretary claimed that the applicant is not covered by Article 1(D) of the Refugee Convention and there is no situation in the Gaza Strip that falls under Article 15 (c) of the Qualification Directive.

The applicant appealed the decision to the Court of the Hague on 15 December 2021. The State Secretary was wrong, according to the Court of the Hague, to conclude that the applicant was exempt from the provisions of Article 1(D) of the Refugee Convention and Article 12(1) (a) of the Qualification Directive. The Court of the Hague determined that the applicant met the criteria for exclusion listed in the first sentence of Article 12(1) (a) of the Qualification Directive. The fact that the applicant was registered with UNRWA means he is eligible for protection from that organisation in the opinion of the court. The State Secretary then had to determine if the applicant fell within the inclusion referred to in the second sentence of Article 12(1) (a). The Court of the Hague ruled that the question of whether the situation in the Gaza Strip falls under the purview of Article 15 (c) of the Qualification Directive is no longer pertinent because, if the applicant is subject to the ground for exclusion, they are automatically granted refugee status.

The State Secretary appealed against the decision to the Council of State. The Council of the State considered the CJEU judgment NB, AB v Secretary of State for the Home Department (UK) pronounced on 3 March 2022: a UNWRA registration card in theory supports the conclusion that a person falls under Article 1(D) of the Refugee Convention and Article 12 (a) of the Qualification Directive paragraph 48). The Council of State ruled that the State Secretary rightly concluded that those laws do not apply to the applicant because he never received protection or aid from UNRWA as from 2011 to 2014, prior to his departure from Europe, he resided in Libya not in an area under UNRWA’s operations. As a result, Article 12 (a) of the Qualification Directive does not entirely apply to him. The council further cited its own judgement of 3 January 2022 (ECLI:NL:RVS:2022:1) in support of its ruling.

The Council of State ruled that the Court of the Hague was wrong to conclude that the State Secretary’s reasoning on why Article 1(D) of the Refugee Convention, and Article 12(1) (a) of the Qualification Directive did not apply to the applicant was inadmissible. The State Secretary’s appeal was upheld, and the Court of the Hague’s ruling was overturned as a result. The case was sent back to the Court of the Hague by the Council of State so that it can be heard and decided taking into account its previous case law (The State Secretary for Justice and Security v Applicant, ECLI:NL:RVS:2022:1, 3 January 2022).