The applicant is a stateless Palestinian who seeks to be recognised ipso facto as a refugee in Germany. The lower administrative courts in Germany granted him refugee status, but the Federal Administrative Court stayed the proceedings and referred questions to the CJEU for preliminary ruling (Bundesrepublik Deutschland v XT, case C‑507/19). After the CJEU ruling, the Federal Administrative Court applied the CJEU's reasoning to the applicant’s case and remanded the case to the lower courts for further investigation of the underlying facts about the applicant leaving Lebanon and Syria.
- Article 12.1(a) EU Directive 2011/95/EU
- Section 3 para 3 German Asylum Law
- Section 77 German Asylum Law
The applicant was born and lived in Syria as a stateless Palestinian before he migrated to Lebanon in October 2013 to seek work and support his family in Syria. The applicant was unable to obtain a residence permit in Lebanon and therefore returned to Syria in November 2015. Given the war in Syria, he fled Syria in December 2015 and reached Germany where he applied for refugee status in February 2016. The German authorities (Federal Office for Migration and Refugee - BAMF) only granted subsidiary protection and rejected his application for refugee status. The applicant lodged a claim with the Administrative Court to request BAMF to grant him refugee status.
The lower administrative courts in Germany granted him refugee status, but the Federal Administrative Court (Germany’s highest administrative court) stayed the proceedings and referred questions to the CJEU for preliminary ruling (C-507/19). The CJEU issued a judgment on Bundesrepublik Deutschland v XT, case C‑507/19.
The applicant argued that Germany must grant him ipso facto refugee status because he lost the protection and assistance of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) when he left Syria due to the war in the country. He further argued that he was forced to leave UNRWA’S area of operation because he could not have migrated to another field or country where UNRWA operates. He specifically argued that he was unable to return to Lebanon where the authorities had already threatened to expel him, which is why he left Lebanon for Syria to then migrate to Europe.
BAMF argued that the applicant could not be granted ipso facto refugee status since there is no indication that he was forced to leave UNRWA’s area of operation and thereby lost its protection involuntarily. More specifically, BAMF argued that it was not evident that the applicant could not have stayed in Lebanon, regardless of lacking a residence permit, and thereby he could have avoided being forced to leave Syria due to the war.
The Federal Administrative Court had to decide whether to grant the applicant ipso facto refugee status. Under Article 12(1)(a) of EU Qualification Directive 2011/95/EU, or section 3(3) of the German Asylum Law, he is a stateless person who is no longer protected by an organ or agency of the United Nations (in this case, UNRWA). Palestinians registered with UNRWA would normally be protected by this agency and therefore not entitled to refugee status. Conversely, if the person is no longer protected or assisted by UNRWA, and therefore was forced to seek refuge in Europe, the person would be granted refugee status "ipso facto", regardless of whether the other requirements for refugee status are fulfilled.
The Federal Administrative Court's decision is mainly based on the decision and legal reasoning of the CJEU in the case C-507/19, but was unable to come to a definitive conclusion because it considered that the relevant facts were not yet established. First, the court reasoned that the facts alleged in the case did not make it evident that the applicant was factually no longer protected and assisted by UNRWA in Lebanon, or whether he could have safely stayed there. Second, the court also did not have the facts whether the applicant, when he left Lebanon for Syria, could have foreseen that he would be forced to leave Syria and the entire area of operation of the UNRWA because he could not migrate to Lebanon or another area of protection. If both was true, the applicant would have lost the protection and assistance by UNRWA voluntarily, and thereby would be ineligible for refugee status.
The court also states that, based on section 77 German Asylum Law, if at that time of the last evidentiary hearing before the court the applicant could return to any of UNRWA's fields of operation and could safely live there, the application for refugee status must be rejected. The court reasoned that it would be contradictory to grant such a status, which immediately after would have to be withdrawn given the new situation at the time the judgment is made. The court noted that this legal reasoning is consistent with EU law and the ECJ case law.
The Federal Administrative Court remanded the case to the lower courts to determine (i) whether the applicant could factually have stayed and lived in dignity in Lebanon and therefore could be protected and assisted by UNRWA, and, if that was the case, (ii) whether the applicant could have foreseen when he left Lebanon for Syria that he would be forced to leave Syria without being able to return to Lebanon. The court ruled that if the lower courts determine that both of these factual allegations are correct, the applicant would have lost the protection and assistance from UNRWA voluntarily and therefore could not be granted refugee status.