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CJEU - C-364/11 Mostafa Abed El Karem El Kott, Chadi Amin A Radi, Hazem Kamel Ismail v Bevandorlasi es Allampolgarsagi Hivatal (BAH)
Stateless persons of Palestinian origin who have in fact availed themselves of assistance from the UNRWA and their right to recognition as refugees on the basis of Art. 12(1)(a) of Directive 2004/83
The dispute in the main proceedings centred around all three parties having to leave UNRWA refugee camps in Lebanon (Ein El-Hilweh camp and Nahr el Bared camp) on the basis of threats to their security. All three applicants claimed asylum in Hungary but were refused refugee status. Mr. El Kott and Mr. Radi were ordered not to be returned to Lebanon whilst Mr. Ismail was granted subsidiary protection. All three parties cases were joined for the purpose of the main proceedings by the referring Court. The applicants in the main proceedings sought recognition as refugees on the basis of the second subparagraph of Art. 1D of the Geneva Convention to which the second sentence of Art. 12(1)(a) Qualification Directive refers. The questions referred to the CJEU by the Budapest Municipal Court were as follows: (1) Do the benefits of the Directive mean recognition as a refugee, or either of the two forms of protection covered by the Directive (recognition as a refugee and the grant of subsidiary protection), according to the choice made by the Member State, or, possibly, neither automatically but merely inclusion within the scope ratione personae of the Directive? (2) Does cessation of the agency’s protection or assistance mean residence outside the agency’s area of operations, cessation of the agency and cessation of the possibility of receiving the agency’s protection or assistance or, possibly, an involuntary obstacle caused by legitimate or objective reasons such that the person entitled thereto is unable to avail himself of that protection or assistance?
Preliminary observations of the Court included the fact that the Geneva Convention constitutes the cornerstone of the international legal regime for refugee status and that Directive 2004/83 must, for that reason, be interpreted in a manner consistent with the Geneva Convention (GC). The Court first addressed the second question finding that the ground for exclusion under Art. 1D GC must be construed narrowly. The first subparagraph of Art.1D GC provides that the Convention does not apply to persons who are ‘at present receiving’ protection or assistance ‘from organs or agencies of the UN other than UNHCR’. However it cannot be construed as meaning that mere absence or voluntary departure from UNRWA’s area of operations would be sufficient to end the exclusion from refugee status laid down in that provision (Para. 49). The Court held that it was necessary to identify the conditions under which the assistance provided by UNRWA may be as regarded as having ceased ‘for any reason’. In that regard it is not only the abolition itself of the organ or agency giving protection or assistance but also the fact that it is impossible for that organ or agency to carry out its mission (Para. 56). The reasons for which assistance has ceased may also be attributable to circumstances, which have forced the person concerned to leave the UNRWA area of operations. The objective of Art 1D GC must be taken into account and in light of that, a Palestinian refugee must be regarded as having been forced to leave UNRWA’s area of operations if “his personal safety is at serious risk and if it is impossible for that agency to guarantee that his living conditions in that area will be commensurate with the mission entrusted to that agency’ (Para. 63). The authorities should carry out an assessment, on an individual basis, of all the relevant factors, in which Art. 4(3) of Directive 2004/83 may be applicable by analogy.
Regarding Question 1 the Court stated that it was important to note that the GC dealt only with refugee status whilst Directive 2004/83 also deals with subsidiary protection. Therefore the words ‘be entitled to the benefits of the Directive’ in the second sentence of Art. 12(1)(a) must be understood as referring only to refugee status as that provision was based on Art. 1D GC (Para 67). The words ‘shall ipso facto be entitled to the benefits of the Directive’ must be interpreted in a manner consistent with Art. 1D, as permitting the persons concerned to benefit ‘as of right’ from the regime of the Convention and the benefits conferred by it (Para 71). The Court held that a person who is ipso facto entitled to the benefits of the Directive is not necessarily required to show that he has a well-founded fear of being persecuted within the meaning of Art. 2(c) of the Directive, but must nevertheless submit an application for refugee status, which must be examine by the competent authorities of the Member State responsible. In carrying out that examination, those authorities must verify not only that the applicant actually sought assistance from UNRWA, and that the assistance has ceased but also that the applicant is not caught by any of the grounds for exclusion laid down in Art. 12(1)(b) or (2) and (3) of the Directive. Article 11(f) and Art. 14(f) of Directive 2004/83 also must be interpreted as meaning that the person concerned ceases to be a refugee if he is able to return to the UNRWA area of operations in which he was formerly habitually resident because the circumstances which led to that person qualifying as a refugee no longer exist.
The Court Grand Chamber rules:
1. 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 the cessation of protection or assistance from organs or agencies of the United Nations other than the High Commission for Refugees (HCR) ‘for any reason’ includes the situation in which a person who, after actually availing himself of such protection or assistance, ceases to receive it for a reason beyond his control and independent of his volition. It is for the competent national authorities of the Member State responsible for examining the asylum application made by such a person to ascertain, by carrying out an assessment of the application on an individual basis, whether that person was forced to leave the area of operations of such an organ or agency, which will be the case where that person’s personal safety was at serious risk and it was impossible for that organ or agency to guarantee that his living conditions in that area would be commensurate with the mission entrusted to that organ or agency.
2. The second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as meaning that, where the competent authorities of the Member State responsible for examining the application for asylum have established that the condition relating to the cessation of the protection or assistance provided by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is satisfied as regards the applicant, the fact that that person is ipso facto ‘entitled to the benefits of [the] directive’ means that that Member State must recognise him as a refugee within the meaning of Article 2(c) of the directive and that person must automatically be granted refugee status, provided always that he is not caught by Article 12(1)(b) or (2) and (3) of the directive.
Intervening Party: ENSZ Menekultugyi Fobiztossaga
The following Member States also intervened in this case: the Hungarian government, the Belgian Government, the German government, the French government, the Romanian government and the United Kingdom government.
The BAH is the Hungarian Office for Immigration and Citizenship.
Paragraph 20 of UNGA Resolution no. 302 (IV) in conjunction with Resolution no. 2252 (ES-V)