This case concerns a mother and child, NB and AB, stateless Palestinians formerly residing in Lebanon who are registered with UNRWA. AB is severely disabled and has complex medical issues and other needs. They sought asylum in the United Kingdom on the basis of Article 1D of the Refugee Convention. The Court considered whether they qualify to be granted ipso facto refugee status under Article 1D of the Refugee Convention. The Court found that the burden of proof lies with the applicants to prove that they have actually had recourse to UNRWA’s protection or assistance and that that protection or assistance has ceased, but, once that is established, if the authority considers that the applicant could now return to UNRWA’s area of operation, it is for that authority to demonstrate that the circumstances have changed in the area of operations concerned and that the applicant can access adequate protection or assistance from UNRWA. It also held that the applicant does not need to prove that there was any intentional infliction of harm or failure; it is sufficient to establish that UNRWA’s assistance or protection has in fact ceased for any reason (beyond the applicant’s control). The Court held, inter alia, that if UNRWA cooperates with a civil society or host government agency or actor to fulfil its mission, the services by those organisations are relevant to considerations of whether UNWRA can provide adequate assistance or protection only if there is a stable and formal relationship between UNRWA and the relevant organisations, and the applicant has a durable right to such services.
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’)
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:
- 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?
- 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?
- 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?
- Is it relevant to take into account the assistance provided to such persons by civil society actors such as NGOs?
The applicants argue that as stateless persons having previously had recourse to UNRWA’s protection or assistance, they may, ipso facto be entitled to refugee status inasmuch as this protection or assistance has ceased for a reason beyond their control, as per Article 1(D) of the Geneva Convention. In this context, the applicants submit that this is due to the alleged inability of UNRWA to provide assistance to severely disabled children in accordance with its mission and, the severe discrimination AB faced in Lebanon, on account of his disability. With respect to the latter, the applicants state that AB did not have access to the appropriate education or medical assistance in the Al Bass camp. They add that the mental health of the family has suffered as a result of the abuse faced by AB and his siblings from the surrounding community. This situation was exacerbated by the precarious living conditions in the camp, the discrimination that disabled Palestinians are subjected to in Lebanon and the deterioration of Lebanon’s socio-economic situation in recent years.
Relying on the judgment in Abed El Karem El Kott and Others, the applicants further submit that the severe discrimination that AB was exposed to is capable of constituting a reason which forced the person concerned to leave the UNRWA area of operations. They add that the discrimination resulting from the refusal to ensure that disabled persons have access to healthcare and education is likely to cause serious harm to the child and may even constitute ‘persecution’. The existence of such persecution ought to be assessed by having due regard to the particular vulnerability of children and the best interests of the child, both in respect of AB and his siblings.
In light of these considerations, the applicants submit that they left Lebanon and thus ceased to benefit from UNRWA’s protection or assistance for objective reasons beyond their control.
The Secretary of State for the Home Department (SSHD) disputes the right of the applicants to be granted ipso facto refugee status. The SSHD contends that the discrimination faced by AB on the basis of his disability does not reach the level required to be regarded as constituting persecution.
The SSHD also argues that AB received sufficient assistance in Lebanon and will continue to do so upon his return. In this regard, she refers to the existence of a centre that provides assistance to disabled children living in the Al Bass refugee camp operated by a non-governmental organisation. The SSHD maintains that the applicants had not demonstrated that it was impossible to have recourse to the education and assistance such NGOs provide and had, therefore, failed to demonstrate objective reasons beyond their control which prevented them from continuing to benefit from UNRWA’s assistance or protection in Lebanon.
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.
On those grounds, the Court ruled that:
- 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.
- 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.
- 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.
- 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.
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]
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