CJEU - El Kott and Others, case C-364/11

The referring court asked two interpretive questions: First, in light of the second sentence of Article 12(1)(a) of Directive 2004/83 (“Qualification Directive”) the CJEU needs to explain whether the Qualification Directive “must be interpreted as meaning that the fact that a person may ‘be entitled to the benefits of [the] Directive’ means that the person concerned is automatically entitled to refugee status or simply that such a person falls within the scope ratione personae of the directive” (§69). And secondly, “whether the second sentence… is to be interpreted as meaning that the cessation of protection or assistance on the part of a United Nations organ or agency other than the HCR ‘for any reason’ concerns the situation of a person who has left that organ’s or agency’s area of operations in circumstances such as those characterising the departure of each of the applicants in the main proceedings” (§45). The referring court labelled the first issue Question 1 and the second issue Question 2. The CJEU addressed Question 2 first.

Before beginning its analysis, the CJEU noted that the Geneva Convention “constitutes the cornerstone of the international legal regime for the protection of refugees” (§42). For that reason, “Directive 2004/83 must… be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU” (§43).

Question 2: The Cessation of Assistance

Accordingly, the CJEU began by stating that the fact that the Geneva Convention “simply excludes from the scope of the convention persons who ‘are at present receiving’ protection or assistance from such an organ or agency of the United Nations cannot be construed as meaning that mere absence or voluntary departure from UNRWA’s area of operations would be sufficient to end the exclusion from refugee status laid down in that provision” (§49). Otherwise, “an applicant for asylum… who submitted an application in the territory of a Member State and was therefore physically absent from UNRWA’s area of operations would never be caught by the ground for exclusion from refugee status …  depriving that ground for exclusion of any practical effect” (§50). Moreover, interpreting the Qualification Directive in this manner was held to run counter to Article 1D of the Geneva Convention, which attempts to exclude from the convention all persons already receiving UN assistance (§51).

As a result, the first sentence of the Qualification Directive should be interpreted to mean “that the ground for excluding a person from being a refugee laid down in that provision covers not only persons who are currently availing themselves of assistance provided by UNRWA but also those such as the applicants in the main proceedings who in fact availed themselves of such assistance shortly before submitting an application for asylum in a Member State” (§52). However, this exclusion from refugee status only applies if “assistance has not ceased within the meaning of the second sentence of Article 12(1)(a) of the directive” (§52).

From the text of Article 12(1)(a) it is clear that it is “primarily the actual assistance provided by UNRWA and not the existence of that agency itself which must cease” (§57). Where “the person concerned has been forced to leave for reasons unconnected with that person’s will, such a situation may lead to a finding that the assistance from which that person benefited has ceased…” (§59).

The CJEU found that it is for “the competent national authorities and courts to ascertain whether the departure of the person concerned may be justified by reasons beyond his control and independent of his volition which force him to leave the area in question and thus prevent him from receiving UNRWA assistance” (§61). Offering guidance on this point, the CJEU reminds  national courts of the objective of Article 1D of the Geneva Convention, “namely to ensure that Palestinian refugees continue to receive protection, as Palestinian refugees, until their position has been definitely settled…” (§62).

In light of this guidance the CJEU determined that the departure from UNRWA by a Palestinian refugee should be regarded as forced when there are serious risks to their personal safety and where it is impossible for the UNRWA to actualize the guarantees promoted in their mission. Additionally, the CJEU states that the competent national authorities must undertake this determination on an individual basis, considering all the relevant factors (§64).

Question 1: The Ipso Facto Entitlement

Having determined who should have access to the benefits of the Qualification Directive, the CJEU then defines what these benefits are. First, the CJEU distinguished the Qualification Directive from the Geneva Convention by the fact that the Qualification Directive deals with both refugee and subsidiary protection status, whereas the Geneva Convention only addresses refugee status. As a result, “the words ‘entitled to the benefits of [the] Directive’ in the second sentence of Article 12(1)(a) of the directive must be understood as referring only to refugee status, since that provision was based on Article 1D of the Geneva Convention and the directive must be interpreted in the light of that provision” (§67).

Both the second sentence of Article 12(1)(a) and Article 1D of the Geneva Convention provide that applicable individuals ‘shall ipso facto be entitled to the benefits’ of the applicable directive or Convention. Accordingly, the CJEU determined that this statement must be referencing something more than just the right to apply for refugee status on the basis of Article 2(c) of the Qualification Directive, an option already available to a third-country national or stateless person in the territory of a Member State.

For one, the language would be “superfluous and ineffective if its only purpose was to point out that the persons who are no longer excluded from refugee status by virtue of the first sentence of that provision may rely on the directive to ensure that their application for refugee status will be considered in accordance with Article 2(c) of the directive” (§73). Furthermore, the CJEU draws a distinction between individuals who have been settled and those where, “as is the case in the main proceedings, the position of the persons concerned has not been settled… [the] directive’ necessarily has wider implications than those arising from the simple fact that such persons are not excluded from the possibility of qualifying as refugees if they satisfy the requirements laid down in Article 2(c)” (§74).

The CJEU held that the fact that while an individual may be ipso facto entitled to the benefits of the Qualification Directive, this does not entail an unconditional right to refugee stats. Consequently, an application for refugee status still needs to be submitted, with the competent authorities carrying out an examination of the asylum application. The examination should determine whether “the applicant actually sought assistance from UNRWA…, that the assistance has ceased and… that the applicant is not caught by any of the grounds for exclusion.” ( 76). When these conditions are met, that is to say when Question 2 is satisfied, the applicant should automatically be granted refugee status (§81).