The case concerned a stateless person of Palestinian origin who was registered as refugee with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). He lived in the UNRWA refugee camp in Ain Al Helwa in Lebanon, until 3 months prior to his departure. His first asylum application in the Netherlands was rejected because the State Secretary considered that the applicant received UNRWA assistance before he left and that there was no indication that the protection and assistance has ceased.

The applicant submitted a subsequent application where he claimed that the UNRWA protection has ceased but the State Secretary declared the application inadmissible because it considered that the applicant did not submit any new elements or findings.

In the first appeal, the Court of The Hague upheld the applicant's appeal and held that the documents submitted show that the situation in the Ain Al Helwa refugee camp has deteriorated substantially since the rejection of the previous asylum application and stated that the applicant no longer has the opportunity to enter to get to that refugee camp. The Court of The Hague consulted the CJEU judgment of Bundesrepublik Deutschland v XT, C-507/19, and stated that it is important to assess whether the applicant can return to the UNRWA area of operations where he previously lived and that this does not require that the applicant was forced to leave UNRWA area of operations for reasons beyond his control.

The State Secretary appealed against the judgment of the lower court, claimed that the lower court misinterpreted the XT judgment and argued that according to the CJEU judgment El Kott, Article 12 of the recast QD cannot be interpreted as stating that the fact that a stateless Palestinian left voluntarily the UNRWA area of operations is in itself sufficient to end exclusion from refugee status. The State Secretary highlighted that in paragraph 51 of the judgment, the CJEU considered that assuming that a voluntary departure from the area in which UNRWA operates and thus a voluntary renunciation of the provided UNRWA's assistance gives rise to termination of exclusion from refugee status, is contrary to the objective of Article 1(D) of the Refugee Convention. In paragraph 61, the CJEU then considered that, in order to assess whether UNRWA's assistance or protection has actually ceased, it is necessary to verify whether the departure of the person concerned is justified by reasons beyond his control and beyond his will, being prevented from benefiting from the assistance provided by UNRWA.

The Council of State upheld the State Secretary appeal. The Council of State ruled that when assessing the application of Article 1(D) of the Refugee Convention, it must be checked whether the foreign national has been forced to leave UNRWA's working area because of circumstances beyond their control. The fact that a third country national cannot access the sector of UNRWA's area of ​​operations from which he had previously left, does not mean that the person is entitled to a refugee status if there was no forced departure.

The Council of State consulted also the CJEU judgement of 3 March 2022, NB, AB v Secretary of State for the Home Department (UK), C‑349/20, paragraphs 65 and 66, where the Court held that the burden of proof lies with the stateless Palestinian, who has to prove that the protection and assistance of the UNRWA has ceased. If the stateless Palestinian can prove that he was actually forced to do so for reasons beyond his control and will, at the time he left UNRWA's area of operation, it is then for the Member State to demonstrate that the conditions in that area have changed in the meantime and the stateless Palestinian concerned can return to that area and can again enjoy protection or assistance there.

The Council of State ruled that the fact that the applicant has voluntarily departed from UNRWA's working area suffices to justify the exclusion from refugee status. A third country national who is entitled to protection and assistance from UNRWA may be expected to make use of them. The situation is similar to a person who has assistance and protection, but then withdraws from it voluntarily and leaves UNRWA's working area, thus the third country national has voluntarily waived the possibility of receiving protection and assistance from UNRWA.

It further added that the present situation is not one in which UNRWA assistance has ceased for reasons beyond the control and will of the third country national. Article 1(D) of the Refugee Convention is intended for persons who had the opportunity to receive protection and to seek assistance from UNRWA but when a third country national has voluntarily waived this protection option, it is not possible to be entitled to refugee status, not even when the person concerned may no longer be able to access UNRWA's working area.

The lower court decision was annulled and the Council of State clarified that if the outcome of the test against Article 1(D) of the Refugee Convention is that an applicant is excluded from refugee status, this does not mean that the person can no longer qualify for international protection. Article 1(D) of the Refugee Convention and Article 12, paragraph 1, subparagraph a of the recast QD, deal with refugee status. The Secretary of State must then assess whether the applicant is eligible for subsidiary protection.