CJEU – C-507/19, Bundesrepublik Deutschland v. XT, 13 January 2021

Facts:

The case concerns a stateless person, of Palestinian origin, born in Syria. He is considered a refugee and is registered as such in the UNRWA Yarmouk camp. The Applicant spent three years in Lebanon working, without the possibility to obtain a residence permit. Fearing expulsion from the country, he returned to Syria. He then decided to leave due to the war and poor living conditions in the country. He requested international protection in Germany.

The German Federal Office for Migration and Refugees conferred subsidiary protection to the Applicant. The Higher Administrative Court of Germany rejected the decision of the first instance judge, considering that the Applicant was entitled to refugee status.

The Court referred several preliminary questions to the Court of Justice. First, in order to ascertain if protection or assistance from UNRWA has ceased (Article 12(1)(a) Directive 2011/95), the national Court asks whether account should be taken of the possibility to receive effective protection from the Agency in the last field of habitual residence of the person, or also in other fields within UNRWA area of operations.  Second, if the condition of cessation of protection or assistance is met when an individual leaves UNRWA area of operations because his safety is at risk and he is unable to obtain protection from the Agency,  given that the individual has voluntarily travelled to that field from another field in the area of operations where he could receive the aforementioned protection and his safety wasn’t at risk (i), and if the individual could, neither expect to receive protection in the field where he moved to, nor be able to return to the field where he travelled from (ii).

Decision & reasoning:

-          Whether account must be taken, in order to determine if protection from UNRWA has ceased, of other fields, apart from the one of last habitual residence of the Applicant, within the Agency’s area of operations

The first sentence of Article 12 (1)(a) Directive 2011/95 provides that individuals are excluded from qualifying as a refugee if they fall under the scope of Article 1(D) of the Geneva Convention. The provision establishes that individuals who “are at present receiving” protection from  an organ or agency of the United Nations do not fall under the scope of the Convention. Hence, individuals who are registered with UNRWA in the Near East are excluded from refugee status in the European Union, according to Article 12(1)(a)Directive 2011/95 [45-49].

The second sentence of the aforementioned article provides that protection from the Directive applies automatically when an individual is no longer receiving protection from UNRWA, regardless of the general conditions to qualify as a refugee as stipulated in Article 2(d) of the Directive. The Court reiterates that an individual assessment must be carried out to determine whether the person was forced to leave UNRWA area of operations, the Agency not being able to grant him effective protection, as a result of circumstances out of the individual’s control [51-54]

The Court, relying on the wording of Article 12(1)(a) of the Directive, deduces that, in such an analysis, account must be taken of the possibility to receive assistance in the five fields that compose UNRWA area of operations [51-53]. The national authorities must analyse all the relevant factors in each case to ascertain whether the person had a practical possibility to receive protection in any of the fields. The Court adduces certain circumstances that must be taken into account, such as, the existence of family ties, previous residence, or the right to obtain a residence permit in any of UNRWA field of operations, as well as declarations of national authorities regarding their attitudes towards stateless individuals of Palestinian origin [59-62].

If the stateless person of Palestinian origin was able to access any of UNRWA’s fields and obtain effective protection by the Agency, they will be excluded from protection under Directive 2011/95 [63].

-          Whether protection from UNRWA has ceased, as stipulated in Article 12(1)(a), when an individual has voluntarily travelled to a field where the Agency couldn’t grant assistance, from a field where he could receive it , and if he couldn’t expect to access the Agency’s assistance in the field he travelled to, nor return to the field of origin

The Court asserts that the exclusion from refugee status of Article 12(1)(a) Directive 2011/95 is maintained when there is a mere absence or voluntary departure from UNRWA’s area of operations [69].

If the person could access another field within the area of operations, departure from the area of operations must be considered voluntary [72]. The domestic authorities must carry out an individual assessment of the circumstances to determine whether a stateless person of Palestinian origin, residing in a field where he was protected by UNRWA, could reasonably foresee, according to the information available for him at the moment of departure, that he wouldn’t be able to receive effective protection from the Agency or return to the field of origin in the short term [74].

The Court then points out several relevant aspects that must be taken into account by the national courts in the assessment. It mentions that the circumstances not allowing the person to obtain UNRWA’s protection in another field, or return to the field of origin in the short term, must be reasonably foreseeable when the individual departed. The sudden and unforeseeable changes must also be considered, such as, the closure of borders between the fields, or the outbreak of a conflict [74-78].

Even though the domestic courts will have to examine the circumstances in this instance, the Court states that it seems as if the Applicant, from the information that was available to him, could reasonably expect to receive protection in Syria, field where he moved to, or be able to return to Lebanon in the short term, field of origin. If that is the case,  the Applicant shouldn’t be considered as having voluntarily left UNRWA area of operations, and can automatically receive protection from the Directive 2011/95 [79].

Outcome:

In order to determine whether protection from UNRWA has ceased, as stipulated in Article 12(1)(a) Directive 2011/95, the national authorities must consider if the individual had a concrete possibility of accessing and benefitting from the Agency’s effective protection in any of the fields within UNRWA area of operations.

The second sentence of Article 12(1)(a) of Directive 2011/95 must be interpreted asmeaning that the protection from UNRWA is maintained when an individual has left UNRWA area of operations due to the impossibility to receive effective protection from the Agency in a certain field, if the individual had previously voluntarily decided to leave a field where he could receive assistance from the Agency, even though he could reasonably foresee, according to the information available for him at the moment of departure, that he wouldn’t be able to receive effective protection from the Agency in the field he was travelling to, or return to the field of origin in the short term.

Other sources:

UNRWA’s Consolidated Eligibility and Registration Instructions: Points VII.C and VII.E