The applicant is a stateless woman from Palestine* originating from the West Bank and registered as a refugee with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). She requested international protection in the Netherlands, and her application was rejected by the Minister for Asylum and Migration, which considered that she had left the UNRWA area of operation voluntarily, without any indication that the protection or assistance provided by UNRWA had ceased at that time. Thus, on the basis of Article 1(D) of the Geneva Refugee Convention and Article 12(1)(a) of the recast Qualification Directive (recast QD), the applicant was excluded from refugee status by decision of 9 March 2023. She then submitted a subsequent application for international protection, referring to various sources to demonstrate that UNRWA was no longer able to provide the standard of living consistent with its mandate. The Minister did not assess these sources because they were dated after the applicant’s departure from the concerned area. The minister considered that the conditions at the time of the applicant's departure from that area are what determine whether Article 1(D) of the Geneva Refugee Convention applies. The applicant appealed the minister’s decision before the District Court of the Hague, seated in 's-Hertogenbosch. The appeal was upheld on 10 November 2023, and the minister lodged an appeal before the Council of State.

The council set out the background to Article 1(D) of the Geneva Refugee Convention. It noted that this article excludes from refugee status persons who receive protection from organs or agencies of the UN, other than the UNHCR. The council noted that this is based on the premise that those persons do not require the protection offered by the Convention since they already benefit from such protection. It acknowledged that UNRWA is a UN body tasked with providing protection and assistance to Palestinian refugees, and that the purpose of Article 1(D) of the Geneva Refugee Convention is to ensure that Palestinian refugees are permanently recognized as a separate category and that they can continue to enjoy protection and assistance. Furthermore, the council noted that Article 1(D) provides for such persons to be automatically included in the scope of the Convention when protection or assistance provided by the United Nations organ ceases, thereby guaranteeing the protection of this group of refugees.

The council, departing from its previous case law, disagreed with the position of the minister that protection by UNRWA must have ceased at the time of the applicant’s departure from the body’s area of operation. It referred to the judgment of the CJEU in LN, SN v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite (C-563/22, 13 June 2024), which established that a voluntary departure from the UNRWA area of operation does not end the exclusion from refugee status. However, if a person was forced to leave due to factors beyond their control, because UNRWA could no longer provide adequate support, they fall under the ground for inclusion set out in the second sentence of Article 12(1)(a) of the recast QD. Referring to the CJEU judgment in NB, AB v Secretary of State for the Home Department (C-349/20, 3 March 2022), the council held that the decisive factor in assessing whether UNRWA is still able to provide assistance or protection is the situation at the time the person left the UNRWA area of operation.

Furthermore, the council held that it emerges clearly from the case law of the CJEU that national authorities and courts must take into account the prevailing  circumstances at the time of making their decisions and should verify whether the departure was of a compulsory nature, and whether, at the time of the decision on the application or of the appeal against a negative decision, the person was denied protection or assistance because the situation in the UNRWA area of operation had worsened.

The council noted that it also follows from the CJEU’s interpretation of Article 4(3) of the recast QD and Article 46(3) of the recast Asylum Procedures Directive, that authorities must take into account all relevant facts at the time of the decision on the applications, and the courts must consider all the information that allows an up-to-date assessment of the specific case. With reference to the CJEU judgment in Nigyar Raul Kaza Ahmedbekova and Raul Emin Ogla Ahmedbekov v Deputy Chair of the State Agency for Refugees (Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite) (C-652/16, 4 October 2018), the council emphasised that as a minimum requirement, first-instance appeal procedures must allow for a reassessment based on the most current information.

The council clarified that determining whether a person is denied protection or assistance is not confined to the moment they left the UNRWA area of operation, but must also be evaluated both when the minister decides on the application for international protection and when the court reviews an appeal against a rejection. Thus, it found to be unfounded the minister’s claim that circumstances subsequent to the departure from the UNRWA area of operation must only be taken into account when the applicant’s departure was not voluntary. It emphasized that the CJEU rulings established that it must also be examined whether, after the time of the departure, UNRWA's protection or assistance must be regarded as having effectively ceased due to a deterioration in conditions beyond the individual’s control. This deterioration is only relevant if the departure was voluntary. If the person was forced to leave, they already qualify under the grounds for inclusion, making any subsequent decline in conditions irrelevant.

On 13 June 2024, the CJEU issued its judgment in the case of LN, SN v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite (C-563/22), addressing, among other things, the timing for assessing whether protection or assistance from UNRWA has ceased. When asked about the implications of this ruling, the minister responded that it did not warrant any change in her position outlined in the notice of appeal. She interpreted the judgment as requiring that protection or assistance from UNRWA must have ceased at three specific moments: the time of departure, the decision on the asylum application, and the judicial assessment. The minister contended that, in this case, the applicant did not satisfy the condition that UNRWA’s protection or assistance had ended at the initial point of assessment. As a result, there was no obligation to consider the present circumstances in the UNRWA area of operation during its assessment.

However, this interpretation was rejected by the council, which found that the relevant paragraphs of the CJEU judgment in LN and SN did not establish these as cumulative conditions. It elaborated that the fact that the judgment requires consideration of whether the situation has deteriorated after departure also implies the non-cumulative nature of these requirements. The council concluded that a stateless Palestinian may fall under the inclusion ground of Article 1(D) of the Geneva Refugee Convention even after voluntary departure from the UNRWA area of operation, if, upon current assessment, it is found that UNRWA's support in the relevant area had ceased at that time due to other circumstances. Consequently, the council upheld the lower court's finding that the minister's decision lacked sufficient reasoning and failed to adequately assess whether the ground for inclusion laid down in Article 1(D) applied to the applicant, particularly in light of the evidence she provided.

In light of the above, the council declared the appeal to be unfounded, upheld the decision of the district court, and instructed the minister to reassess the application for international protection, taking into account all relevant elements in the new decision, including the general situation in the UNRWA working area and any vulnerabilities of the applicant. Additionally, the council order the minister to assess whether UNRWA can provide sufficient protection and assistance in the specific case of the applicant, in view of the CJEU judgment in LN and SN.

Palestine (*) - This designation shall not be construed as recognition of a State of Palestine and is without prejudice to the individual positions of the Member States on this issue.