CJEU - NB, AB, Case C-349/20

This case primarily concerns NB and her disabled minor son AB as well as her husband and other children, who are UNRWA-registered stateless Palestinians. Having previously resided in the Al Bass refugee camp in Lebanon, they arrived in the United Kingdom in 2015 and are seeking refugee status on the basis of Article 1(D) of the Geneva Convention. The Court considers whether they qualify to be granted ipso facto refugee status under Article 1(D) of the Convention Relating to the Status of Refugees.

Case name (in original language)
NB, AB v Secretary of State for the Home Department
Case status
Decided
Case number
C-349/20
Citation
CJEU, NB, AB v Secretary of State for the Home Department (C-349/20), 3 March 2022
Date of decision
Court / UN Treaty Body
Court of Justice of the European Union
Language(s) the decision is available in
English
Applicant's country of residence
United Kingdom
Relevant Legislative Provisions

International Law

  • Article 1(D) of 1951 Convention relating to the Status of Refugees (‘the Geneva Convention’)
  • Points VII.C and VII.E of the United Nations General Assembly Resolution No 302 (IV) of 8 December 1949

EU Law

  • Articles 2(c) to (e), 4 and 12(1)(a) of Council Directive 2004/83/EC of 29 April 2004
  • Recitals 1 and 50 and Articles 12 and 40 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011
  • Recital 18 and Articles 2 and 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 

National Law

  • Regulations 2 and 7(1) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (S.I. 2006/2525, ‘the 2006 Regulations’)
  • The Immigration Rules (the 2006 Regulations) (‘the 2006 Immigration Rules’)
Facts

NB and her severely disabled minor son, AB, are stateless Palestinians. NB, her husband and their five minor children have been living in the United Kingdom since October 2015. All family members previously resided in the Al Bass refugee camp in Lebanon and are registered with UNRWA. This is with the exception of H, the youngest family member, who was seven months old on the date on which the order for reference was made. The Court was tasked with considering whether the applicants were entitled to refugee status due to the inability of UNRWA to provide assistance and due to the discrimination faced by AB.

The referring court decided to stay the proceedings and submitted the following questions to the Court for a preliminary ruling:

In assessing whether there has been a cessation of protection or assistance from UNRWA within the meaning of the second sentence of Article 12(1)(a) of [Directive 2004/83] to a UNRWA-registered stateless Palestinian in respect of the assistance afforded to disabled persons: 

  1. Is the assessment purely an historic exercise of considering the circumstances which are said to have forced an applicant to leave the UNRWA area of operations when he [or she] did, or is it also an ex nunc forward-looking assessment of whether the applicant can avail himself [or herself] of such protection or assistance presently?
  2. If the answer to Question 1 is that assessment includes a forward-looking assessment, is it legitimate to rely analogically on the cessation clause in Article 11, so that where historically the applicant can show a qualifying reason as to why he or she left the UNRWA area, the evidential burden falls upon the Member State to show that such reason no longer holds?
  3. In order for there to be justifiable objective reasons for the departure of such a person related to UNRW[A]’s provision of protection or assistance, is it necessary to establish intentional infliction of harm or deprivation of assistance (by act or omission) on the part of UNRWA or the State in which it operates?
  4. Is it relevant to take into account the assistance provided to such persons by civil society actors such as NGOs?
Decision & Reasoning

First question

Addressing the first question, the Court affirmed the Advocate General’s Opinion. In determining the relevant time at which the assessment of the cessation of UNRWA’s assistance or protection must be made, it held that the use of the phrases ‘are at present receiving’ and ‘has ceased’ in Article 1(D) of the Geneva Convention favours an assessment that seeks to determine whether that assistance or protection has actually ceased. 

The Court considered that the assessment must be consistent with the general scheme of the regime established under Directive 2004/83. According to Articles 4(3)(a) and 5(1), in order to decide on an application for international protection the relevant facts relating to the country of origin must be assessed ‘at the time of taking a decision on the application’ and, where appropriate, of events which have taken place since the applicant left the country of origin. In this regard, it reiterated that Member States are required to order their national law in such a way that the processing of the appeals referred to in that provision includes a ‘full and ex nunc’ examination of all the facts and points of law. This implies an obligation on the part of the court to consider evidence which the determining authority should have taken into account and that which has arisen following the adoption of the decision under appeal. 

Agreeing with the Commission’s arguments in its written observations, the Court held that authorities and courts called upon to decide on an ipso facto entitlement to refugee status should also verify whether such an effective possibility of return to the UNRWA area of operations exists. If it does, the applicant should be excluded from being a refugee. 

The Court held that the second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as requiring an individual assessment of the situation as it exists at the time of the departure from the UNRWA area of operations, while also taking into account the circumstances at the time when the competent authorities take their decision on the asylum application or the judicial authorities rule on the appeal against a decision refusing to grant refugee status. 

Second question

On the second question, the Court recalled, inter alia, that in determining whether an applicant qualifies for refugee status, pursuant to Article 4 of Directive 2004/83, a two-stage assessment of the facts and circumstances must take place. Relevant to this question is the first stage which concerns the establishment of factual circumstances which may constitute evidence that supports the application, while the second stage relates to the legal appraisal of that evidence. While Article 4(1) of the directive creates a duty on the part of the applicant to submit all elements needed to substantiate their application, the Court has previously clarified that the authorities must, if necessary, cooperate actively with them in order to determine and supplement the relevant elements of the application. It noted that these authorities are often better placed than an applicant to gain access to certain types of documents. 

The Court thus inferred from article 4(1) of Directive 2004/83 that provided that the applicants are able to prove that, at the time of leaving the UNRWA area of operations, they were actually forced to do so, for reasons beyond their control and independent of their volition, it is then for the Member State to demonstrate that the circumstances have changed in the area of operations concerned, so that those persons may once again receive protection or assistance from UNRWA. 

In light of these considerations, the Court held that the second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as requiring the Member State, if it considers that the person is now in a position to return to the relevant UNRWA area of operations, to establish that that is the case.

Third question

With regards to the third question, the Court noted that both the second sentence of Article 12(1)(a) of Directive 2004/83 and Article 1(D) of the Geneva Convention require an objective assessment of whether UNRWA’s assistance or protection has in fact ceased for any reason.

Agreeing with the opinion of the Advocate General, the court held that an intention on the part of UNRWA to inflict harm on the applicant or deprive them of assistance would naturally be particularly pertinent. However, for the purposes of applying the second sentence of Article 12(1)(a) of Directive 2004/83, it is not necessary to provide proof of such an intention. 

The Court thus held that it is not necessary to establish that UNRWA or the State in whose territory it operates intended to inflict harm on that person or to deprive him or her of assistance, by act or omission. For the purposes of Article 12(1)(a) of Directive 2004/83, it is sufficient to establish that UNRWA’s assistance or protection has in fact ceased for any reason, so that that body is no longer in a position, for objective reasons or reasons relating to the person’s individual situation, to guarantee him or her living conditions commensurate with its mission.

Fourth question

Addressing the fourth question, the Court pointed out that the second sentence of Article 12(1)(a) of Directive 2004/83 and Article 1(D) of the Geneva Convention refer only to protection or assistance ‘from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees’. No mention is made of support or services provided by other entities, outside the United Nations, such as NGOs. Nevertheless, the Court considered that where the cooperation of civil society actors such as NGOs is essential for UNRWA to carry out its mission, their assistance must be taken into consideration in the assessment of whether UNRWA’s protection or assistance has ceased. 

The Court also contemplated the role of the State in which UNRWA operates. In this regard it held that where Palestinian refugees have a real legal entitlement to access, on a durable basis, education and medical care provided by the State in question, that situation should be taken into consideration in a global assessment of all relevant circumstances under the second sentence of Article 12(1)(a) of Directive 2004/83.

In light of these considerations, the Court found that account must be taken of the assistance provided to that person by civil society actors, such as NGOs, provided that UNRWA has a formal relationship of cooperation with them, of a stable nature, in which they assist UNRWA in carrying out its mandate.

Outcome

On those grounds, the Court ruled that: 

  1. The second sentence of Article 12(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that, in order to assess whether the protection or assistance from the United Nations Relief and Works Agency (for Palestine Refugees in the Near East) (UNRWA) has ceased, so that a person may claim ipso facto ‘refugee status’ for the purposes of that provision, account must be taken, in the context of an assessment carried out on an individual basis, of the relevant circumstances as they exist not only at the time of that person’s departure from the UNRWA area of operations, but also at the time when the competent administrative authorities consider an application for refugee status or the judicial authorities concerned rule on the appeal against a decision refusing to grant such status. 
  2. The second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as meaning that, in the context of the analysis of whether the protection or assistance from the United Nations Relief and Works Agency (for Palestine Refugees in the Near East) (UNRWA) has ceased, so that a person may claim ipso facto ‘refugee status’ for the purposes of that provision, where the person concerned establishes that he or she has been forced to leave the UNRWA area of operations for reasons beyond his or her control and independent of his or her volition, it is for the Member State, if it considers that the person is now in a position to return to that area and receive that protection or assistance there, to establish that that is the case.
  3. The second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as meaning that, in order to determine whether the protection or assistance from the United Nations Relief and Works Agency (for Palestine Refugees in the Near East) (UNRWA) has ceased, within the meaning of that provision, so that a person who has applied for international protection has been forced to leave that body’s area of operations, it is not necessary to establish that UNRWA or the State in whose territory it operates intended to inflict harm on that person or to deprive him or her of assistance, by act or omission. For the purposes of that provision, it is sufficient to establish that UNRWA’s assistance or protection has in fact ceased for any reason, so that that body is no longer in a position, for objective reasons or reasons relating to the person’s individual situation, to guarantee him or her living conditions commensurate with its mission. 
  4. The second sentence of Article 12(1)(a) of Directive 2004/83, read in conjunction with Article 1(D) of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, must be interpreted as meaning that, in the context of the assessment of the conditions required to determine whether the protection or assistance from the United Nations Relief and Works Agency (for Palestine Refugees in the Near East) (UNRWA) has ceased, so that a person may claim ipso facto ‘refugee status’ for the purposes of that provision of Directive 2004/83, account must be taken of the assistance provided to that person by civil society actors, such as non-governmental organisations, provided that UNRWA has a formal relationship of cooperation with them, of a stable nature, in which they assist UNRWA in carrying out its mandate.
Caselaw cited

C‐31/09, Bolbol [2010]

C‐364/11, Abed El Karem El Kott and Others [2012]

C-277/11, M. [2012]

C-148/13, A and Others [2014]

C-585/16, Alheto [2018]

C‐507/19, Bundesrepublik Deutschland, [2021]

Third party interventions

UNHCR, Additional Submission of the United Nations High Commissioner for Refugees in case CASE C-349/20 NB & AB v Secretary of State for the Home Department before the Court of Justice of the European Union, 21 June 2021, available at: https://www.refworld.org/docid/60d5ecfa4.html

UNHCR, Written observations of the United Nations High Commissioner for Refugees in case C-349/20 NB & AB v Secretary of State for the Home Department before the Court of Justice of the European Union , 30 November 2020, available at: https://www.refworld.org/docid/5fc8a22c4.html