A stateless person of Palestinian origin, who lived in one of UNRWA’s areas of operations in Lebanon, made an asylum application in France claiming that it was impossible for UNRWA to provide him with sufficient access to medical care and appropriate living conditions required by his health condition. The Council of State (Conseil d’État) submitted a request for a preliminary ruling to the CJEU. The Court followed Advocate General Emilou’s opinion and found that UNRWA’s protection or assistance must be considered to have ceased when UNRWA is unable to ensure that the person ‘has access to the healthcare and medical treatment without which that person is exposed to a real risk of imminent death or to a real risk of suffering a serious, rapid and irreversible decline in his or her state of health or a significant reduction in life expectancy’. The existence of that risk is for the national court to assess.
Article 12(1)(a) of Directive 2011/95/EU
1951 Refugee Convention
The applicant is a stateless person of Palestinian origin born in Lebanon who has suffered from a serious genetic disease since birth, meaning he requires care that the UNRWA has been unable to provide due to a lack of funds. He left Lebanon in 2019 and applied for international protection in France. The French authorities (the Office for the Protection of Refugees and Stateless Persons, (OFPRA)) rejected his application. The French court (Cour nationale du droit d’asile (National Court of Asylum)) annulled this decision in 2020, confirming that the applicant had refugee status. OFPRA lodged an appeal before the Conseil d’Etat (Council of State) against the lower court's decision.
OFPRA argues that the French court made errors in law on three grounds. Firstly, it did not research whether the applicant had been forced to leave the UNRWA area of operation due to threats to his security. Secondly, it was incorrect to find that the UNRWA’s inability to fund tertiary healthcare appropriate to the state of health of a stateless person of Palestinian origin was a reason to explain why its effective protection had ceased, and hence entitle the person to claim protection under the 1951 Convention. Thirdly, it was incorrect to find that the UNRWA was unable to perform its mission of providing assistance, as paying for tertiary healthcare was not part of its mission, and it was not established that the applicant could not receive appropriate treatment in Lebanon.
Overall, the French court held that it was established that the UNRWA was unable to give the applicant sufficient access to the healthcare he needed to survive, and guarantee him the living conditions commensurate with its entrusted mission, to the extent that the applicant’s personal safety was at serious risk and was forced to leave Lebanon.
Under these circumstances, the Conseil d’Etat decided to stay the proceedings and refer the following questions to the Court:
- Where a sick Palestinian refugee avails himself of UNRWA protection or assistance, and then leaves the State or territory where UNRWA operates and in which he has habitual residence, due to the reason that he cannot have sufficient access to the care and treatment required by his state of health, and that this failure presents a genuine risk to his life or physical integrity, must Article 12(1)(a) of Directive 2011/95 be interpreted to mean that there is reason to consider that his personal safety is at serious risk, and that he is in a situation where it is impossible for UNRWA to guarantee that his living conditions will be commensurate with the mission entrusted to it?
- If so, what are the criteria for identifying such a situation, concerning, for example, the seriousness of the illness or the nature of the care needed?
The Court noted that in essence, the question to be asked was whether Article 12(1)(a) of Directive 2011/95 must be interpreted as meaning that UNRWA’s protection or assistance ceased when it became unable to ensure that a stateless person of Palestinian origin enjoying its protection or assistance could access the healthcare and medical treatment that his state of health requires. (paragraph 24)
The Court first set out the legal context. Article 12(1)(a) references Article 1(D) of the 1951 Convention, which holds that the Convention is not applicable to those who are receiving protection or assistance from organs or agencies of the UN, other than the UN High Commissioner for Refugees. Therefore, persons registered with the UNRWA are, by virtue of Article 12(1)(a) of Directive 2011/95, excluded from refugee status in the European Union. However, when the UNRWA’s protection or assistance has ceased for any reason, without the position of such persons being definitely settled according to the relevant resolutions adopted by the UN General Assembly, such persons will be entitled to the benefits of Directive 2011/95. (paragraphs 25-31)
Turning to the concept of cessation of the UNRWA’s protection or assistance, the Court held that mere absence from the area of the UNRWA’s operations, or a voluntary decision to leave it, cannot be regarded as a cessation of its assistance. However, the cessation of protection or assistance by an organ or agency can stem from the abolition of that organ or agency, or the fact that it is impossible for it to carry out its mission. Furthermore, where a person has been forced to leave the UNRWA's area of operation for reasons unconnected with their will, this may lead to a finding that the assistance from which the person has benefited has ceased. Overall, it is sufficient to establish that UNRWA’s assistance or protection has ceased for any reason, with the result that the agency is no longer able to guarantee to the person living standards commensurate with its mission. (paragraphs 33-38)
Part of the UNRWA’s mission is to provide health assistance to Palestine refugees to meet their basic needs, whatever the nature of the care or medication needed for those purposes. This mission is not dependent on its operational capacity to provide such care and medication. (paragraphs 39-41)
However, the mere impossibility to provide specific care or treatment does not mean that UNRWA’s protection or assistance has ceased. The person’s personal safety must also be at serious risk, and it must be impossible for that agency to guarantee that the person’s living conditions in the area will be commensurate with its mission. Thus, the Court reasoned that even though the healthcare guaranteed by UNRWA is inferior to that which the person could enjoy if he were granted refugee status in a Member State, it is not enough to conclude that he was forced to leave the UNRWA’s area of operation. The person must have been forced to leave the area because UNRWA’s inability to provide care would expose him to a real risk of imminent death, or a real risk of suffering a serious, rapid and irreversible decline to his health, or a significant reduction in life expectancy. It is for the national courts to examine whether there is such a risk, on the basis of an assessment conducted on an individual basis. (paragraphs 43-47)
The CJEU held that Article 12(1)(a) of Directive 2011/95 must be interpreted to mean that the protection or assistance of the UNRWA has ceased when it becomes unable to ensure that a stateless Palestinian person enjoying its protection or assistance has access to healthcare and medical treatment, without which he would be exposed to a real risk of imminent death, or a real risk of suffering a serious, rapid and irreversible decline in his state of health, or a significant reduction in life expectancy. It is for the national court to ascertain whether there is such a risk.
See a short summary of Advocate General Emiliou's opinion in this case in our last litigation newsletter
- CJEU, El Kott and Others, case C-364/11
- CJEU, Secretary of State for the Home Department (Refugee status of a stateless person of Palestinian origin) (C‑349/20, EU:C:2022:151)
- CJEU, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3)