Judges J Passer, F Biltgen, LS Rossi (Rapporteur), N Wahl
Advocate General G Hogan
Before moving to the United Kingdom, a Palestinian family had resided in a refugee camp in Lebanon, where they were registered with the United Nations Relief and Works Agency (for Palestine Refugees in the Near East) (UNRWA), whose mission was to provide protection and assistance to Palestinian refugees. The first applicant mother and her severely disabled child, the second applicant, applied for refugee status on the basis of article 1(D) of the Geneva Convention Relating to the Status of Refugees (1951), to which article 12(1)(a) of Council Directive 2004/83/EC referred, arguing that, as stateless persons having previously had recourse to UNRWA’s protection or assistance, they could ipso facto be entitled to refugee status inasmuch as that protection or assistance had ceased for objective reasons beyond their control and volition. That was due to the fact that UNRWA was unable to provide, in the refugee camp, access to education or medical assistance appropriate to the needs of the disabled child and because of the severe discrimination to which the child was exposed in Lebanon, on account of his disability. Under article 4(1) of Directive 2004/83, when assessing an application for international protection member states could consider it the duty of the applicant to submit all elements needed to substantiate the application. It was then the duty of the member state, in co-operation with the applicant, to assess the relevant elements of the application, under article 4(3), on an individual basis and including taking into account of all relevant facts and evidence, both objective and subjective. The Secretary of State for the Home Department refused to grant the applicants refugee status, on the ground that they had failed to demonstrate reasons beyond their control which prevented them from continuing to benefit from UNRWA’s assistance or protection in Lebanon. The Home Secretary contended that the discrimination the child suffered did not reach the level required to be regarded as persecution and that the child received sufficient assistance in Lebanon and would continue to do so upon his return. In that regard, the Home Secretary stated that the applicants had not shown that it was impossible to have recourse to the education and assistance provided by non-governmental organisations (NGOs) operating in the refugee camp. Following the Home Secretary’s refusal, the applicants appealed to the First-tier Tribunal (Immigration and Asylum Chamber) which stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling questions concerning, inter alia, whether there had been a cessation of protection or assistance from UNRWA in respect of the child applicant within the meaning of the second sentence of article 12(1)(a) of Directive 2004/83.
On the reference—
Held, (1) the second sentence of article 12(1)(a) of Directive 2004/83 applied where it became evident, based on an individual assessment of all the relevant evidence, that the personal safety of the stateless person of Palestinian origin concerned was at serious risk and that it was impossible for UNRWA to guarantee that the living conditions of that individual would be compatible with its mission, and that person was forced to leave the UNRWA area of operations owing to circumstances beyond their control and volition. In that case, that person could—unless they fell within any of the grounds for exclusion set out in article 12(1)(b), (2) and 12(3)—ipso facto be entitled to the benefits of that Directive, without necessarily having to demonstrate a well-founded fear of being persecuted within the meaning of article 2(c). However, that conclusion did not entail an unconditional right to refugee status and the person still had to apply for such status. It was for the national authorities and courts to conduct, on an individual basis, an assessment of all the relevant factors in order to ascertain whether the applicants’ departure from the UNRWA area of operations, under the second sentence of article 12(1)(a) of Directive 2004/83, was justified by reasons beyond their control and independent of their volition, which prevented them from receiving UNRWA’s protection or assistance. In that respect, account had to be taken of the relevant circumstances as they existed at the time of the person’s departure from the UNRWA area of operations, in addition to the circumstances as they existed at the time when the administrative authorities took their decision on an application for refugee status or when the judicial authorities concerned ruled on an appeal against a decision refusing to grant such status (judgment paras 50–53, 56–58, operative part, para 1).
(2) Since, in order to grant refugee status to an applicant under the second sentence of article 12(1)(a) of Directive 2004/83, an assessment of the relevant facts and circumstances had to be carried out in accordance with article 4 of Directive 2004/83. Thus, in the present case, it was possible to infer from article 4(1) of the Directive that the burden of proof lay with the applicants to prove that they actually had recourse to UNRWA’s protection or assistance and that that protection or assistance had ceased. However, provided that the applicants were able to prove that they were forced to leave the UNRWA area of operations, it was then for the member state to demonstrate, where appropriate, that the circumstances had, in the meantime, changed in the area of operations concerned, so that those persons could once again receive protection or assistance from UNRWA (judgment paras 62–65, operative part, para 2).
(3) In order to determine whether UNRWA’s protection or assistance had ceased within the meaning of the second sentence of article 12(1)(a) of Directive 2004/83, so that a person who had applied for international protection had been forced to leave UNRWA’s area of operations, it was not necessary to establish that UNRWA or the state in whose territory it operated intended to inflict harm on that person or to deprive them of assistance, by act or omission. It was sufficient to establish that UNRWA’s assistance or protection had in fact ceased for any reason, so that UNRWA was no longer in a position, for objective reasons or reasons relating to the person’s individual situation, to guarantee them living conditions commensurate with its mission (judgment paras 70, 72, operative part, para 3).
(4) Both the second sentence of article 12(1)(a) of Directive 2004/83 and article 1(D) of the Geneva Convention referred only to the protection or assistance from UNRWA, rather than organisations outside the United Nations, such as NGOs. Given the status granted to UNRWA and the mission entrusted to it, there was no question of treating that agency in the same way as civil society actors such as NGOs, which did not provide “assistance” or “protection” for the purposes of the Geneva Convention and Directive 2004/83. Nevertheless, that did not call into question the fact that the co-operation of NGOs etc might be essential in order to enable UNRWA to carry out its mission. Accordingly, any assistance provided by civil society actors, such as NGOs, should be taken into consideration, provided that UNRWA had a formal, stable relationship of co-operation with them, in which they assisted UNRWA in carrying out its mission (paras 76–80, 84, operative part, para 4).
Raza Husain QC, Eleanor Mitchell, Grace Capel, Ronan Toal and Takis Tridimas (instructed by Wilson Solicitors LLP) for the applicants.
Treasury Solicitor for the Secretary of State for the Home Department.
Marie Demetriou QC and Tim Johnston (instructed by Baker McKenzie) for the United Nations High Commissioner for Refugees (UK), intervening.
R Kanitz and J Möller, agents, for the German Government.
C Ladenburger and A Azéma, agents, for the European Commission.