Belgium – Council for Alien Law Litigation, 29 January 2010, Nr. 37.912

Belgium – Council for Alien Law Litigation, 29 January 2010, Nr. 37.912
Country of Decision: Belgium
Country of applicant: Palestinian Territory
Court name: Council for Alien Law Litigation
Date of decision: 29-01-2010
Citation: Nr. 37.912
Belgium_019 decision_0 (0.12Mo)

Keywords:

Keywords
Exclusion from protection

Headnote:

The CALL ruled that when a Palestinian refugee, who is under the care of United Nations Relief and Works Agency (UNWRA), resides outside the mandate areas of UNWRA, then this person no longer benefits from the protection of UNWRA and therefore falls under Art 1D(2) of the 1951 Refugee Convention, meaning that this person has an automatic right to the protection of the Convention. It should however be examined whether the person can return to the mandate areas and place him/herself back under the protection of UNWRA.

Facts:

 The applicant, of Palestinian origin, grew up in a refugee camp in Lebanon, where he was under the protection of UNWRA. His asylum application in Belgium was denied by the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) because of a number of improbabilities and lacunae in his account. He was also refused subsidiary protection.

Decision & reasoning:

On appeal the CALL did not consider the arguments regarding the applicant’s credibility, but turned to the question of whether or not Art 1D of the 1951 Refugee Convention should have been applied (Art 55/2 of the Belgian Alien Law). Referring to Art 12(1)(a) of the Qualification Directive, the European Court of Justice’s “Bolbol” ruling (C-31/09), and the UNHCR “Statement on Art 1D,” the CALL found that when a person resides outside the mandate areas of UNWRA, that person no longer benefits from the protection or assistance of UNWRA and therefore falls under Art 1D(2) of the 1951 Refugee Convention and, consequently, that that person is automatically entitled to the protection of the Convention. It is possible that a person returns to the mandate areas and re-avails him/herself of UNWRA’s protection or assistance, but there may in certain cases be reasons why the person is not able or willing to return to that area, for example because the government of the country in question would not allow such a return.

For the CALL this meant that it should be examined whether the Palestinian applicant, who could fall under UNWRA protection, was actually in a position to avail him/herself of that protection. If the country of habitual residence obstructed the return of the Palestinian, that person should be recognised as a refugee without further examination of Art 1A of the 1951 Refugee Convention because he/she is already a refugee.

In the case at hand the CGRS had not examined whether the applicant could place himself under the protection of UNWRA. On the basis of the available information, the CALL decided that this was not the case, as Lebanon only allowed the return of Lebanese nationals. The CALL ruled that Art 1D of the 1951 Refugee Convention should have been applied and that the possibility of return is an essential part of this article as it should be established whether the applicant can or cannot avail him/herself of the protection of UNWRA.
 

Outcome:

The decision of the CGRS was overturned and refugee status was granted.

Relevant International and European Legislation:

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