The CJEU ruled on the preliminary questions submitted in the case Office for the Protection of Refugees and Stateless Persons (OFPRA) v AB, No 449551, ECLI:FR:CECHR:2022:449551.20220322, 22 March 2022.

The request was submitted in the context of disagreement between SW and OFPRA over the latter's denial of SW's request for international protection. SW, a stateless person of Palestinian origin, was born in Lebanon where he lived until he left and arrived in France in 2019. Based on the applicants file, SW had a severe genetic disease for which he needed medical attention that the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was unable to provide because of financial constraints.

The CJEU reiterated its findings on the cessation of UNRWA assistance within the meaning of the second sentence of Article 12(1)(a) of the recast QD in the judgment of 13 January 2021 in XT. It underpinned that the mere departure of the person concerned from the UNRWA area of ​​operation, regardless of the reason for that departure, does not may put an end to the exclusion from refugee status provided for in the first sentence of Article 12(1)(a) of that directive and that, therefore, a simple absence from that area or the voluntary decision to leave it does not could be characterized as a cessation of assistance from UNRWA (CJEU judgment of 19 December 2012, El Kott, C‑364/11).

The CJEU reclarified that the cessation of protection or assistance provided by a body or institution, such as UNRWA, may proceed not only from the very suppression of this body or institution but also from the impossibility for that body or institution to accomplish its mission (see El Kott). In view of this, an applicant decision to leave the UNRWA area of ​​operation is motivated by constraints beyond his or her the control, such a situation may lead to the finding that the assistance from which that person benefited has ceased. within the meaning of the second sentence of Article 12(1)(a) of the recast QD (El Kott, C‑364/11).

The CJEU stated that to determine whether UNRWA protection or assistance has ceased, within the meaning of Article 12(1))(a) second sentence, of the recast QD, due to the fact that a person having requested to benefit from international protection was forced to leave the area of ​​operation of that body, it is not necessary to establish that UNRWA or the State in whose territory it operates intended to inflict harm or deprive that person of assistance, whether by action or omission. It is sufficient to establish that UNRWA assistance or protection has effectively ceased for whatever reason, such that UNRWA protection or assistance  is no longer able, see NB, AB v Secretary of State for the Home Department (UK), C‑349/20, 3 March 2022.

The CJEU determined that it appears in particular from resolution No. 74/83 that UNRWA provides health assistance to Palestine refugees since they continue to need assistance to meet their essential health needs. Thus, health assistance to Palestine refugees covering their basic needs is therefore part of the mission of UNRWA, so that the impossibility for the agency, for whatever reason, to provide this medical assistance implies the cessation of assistance from UNRWA within the meaning of the second sentence of Article 12(1)(a) of the recast QD. The mission of UNRWA in health matters consists of providing care and medicines meeting essential needs people requesting assistance from UNRWA, regardless of the quality of care or medicines necessary for these purposes. This mission cannot therefore depend on its operational capacity to provide such care and medicines.

The CJEU relied on the observations of the Commission which argued contrary to the interpretation by the Belgian and French governments, according to which, when a specific assistance service is not provided by UNRWA, such a service must be considered as not falling within the mission of UNRWA. As such, this absence of provision cannot imply the observation of the cessation of assistance from this organization, would amount to reducing the notion of "mission" incumbent on UNRWA to only services actually provided by it, excluding those which, although falling within the mandate of the said body, are not provided due, in particular, to budgetary constraints. Such interpretation would expose Palestinians to the risk of not being able in practice to benefit from any effective international protection. Therefore, the impossibility of providing specific care or treatment cannot, in itself, justify the conclusion that UNRWA protection or assistance has ceased, within the meaning of the second sentence of Article 12(1)(a) of the recast QD.

Based on the conclusions in El Kott, it is necessary that the applicant is in a personal state of serious insecurity and the agency is unable to provide that person, in this area, with living conditions consistent with the mission with which the agency is responsible, in order to be able to establish that the protection or assistance of UNRWA has ceased and, therefore, that the person is forced to leave the area of ​​operation of that organisation.

As such, the fact that the health benefits provided by UNRWA are at a lower level than those from which an applicant could benefit if refugee status was granted to him in a Member State cannot be sufficient to consider that he was forced to leave the UNRWA area of ​​operation.

On the other hand, the Advocate General mentioned that a stateless person of Palestinian origin must be considered to have been forced to leave this area in the event that the impossibility of receiving the care necessary for his state of health from UNRWA places this stateless person at real risk of imminent death or a real risk of being exposed to a serious, rapid and irreversible decline in his state of health or a significant reduction in life expectancy. The individual assessment of all relevant elements remains to the national judge to verify the existence of such risk.

The CJEU ruled that 'Article 12(1)(a), second sentence, of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards relating to the conditions to be fulfilled by nationals of third countries or stateless persons to benefit from international protection, a uniform status for refugees or persons eligible for subsidiary protection, and the content of this protection, must be interpreted in the sense that protection or assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) must be considered to have ceased when this organization is not able to provide a stateless person of Palestinian origin covered by this protection or assistance access to medical care and treatment without which the latter runs a real risk of imminent death or a real risk of being exposed to serious, rapid and irreversible decline of their state of health or a significant reduction in their life expectancy. It is up to the national judge to verify the existence of such a risk.'