Poland - Supreme Administrative Court in Warsaw, 14 February 2002, V SA/Wa 1673/01,

Country of Decision:
Country of Applicant:
Date of Decision:
14-02-2002
Citation:
V SA/Wa 1673/01
Court Name:
Supreme Administrative Court in Warsaw
National / Other Legislative Provisions:
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 7
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure) - Art. 77
Poland - Kodeksu post powania administracyjnego (Code of Administrative Procedure)
Poland - Naczelnym Sądzie Administracyjnym (Polish Act on the Supreme Administrative Court of 11 May 1995)
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Headnote: 

One cannot demand recognition of refugee status pursuant to Article 1A(2) of the Geneva Convention where protection can be provided pursuant to Article 1D of the Convention. The phrase used in the first sentence of Article 1D of the Convention – “persons who are at present receiving… protection or assistance” – relates to those Palestinians who could avail themselves of protection on the date of the Convention, i.e., on 28 July 1951., and to their direct descendants born after that date, provided they remain under the mandate of UNRWA (United Nations Relief and Works Agency). “Protection or assistance” for Palestinians is provided solely in areas under the UNRWA mandate. Therefore, exclusions from protection under the Geneva Convention relate only to those Palestinians who reside permanently in those areas.

Facts: 

B., of Palestinian nationality and holding a Jordanian passport, submitted an application for refugee status in Poland. He came to Poland in 1989 to study.The last time he visited Jordan was in 1991. In his application and in his subsequent testimony he stated that since 1988 he had belonged to an illegal party and that he would face arrest were he to return to Jordan. In Poland, he participated in meetings and conferences during which the Jordanian authorities were criticised.  When he arrived in Jordan in 1991, an official at the airport asked him about his activities in Poland. The official ordered him to report to the police within two weeks. The Minister of Internal Affairs and Administration declined to grant B. protection. He appealed against this decision but the Polish Refugee Board upheld the decision of the first-instance authority. In his appeal, B. argued that he had married in Poland, that his wife and two children were Catholics, and that, were he to return to Jordan, his entire family would be at risk of persecution and discrimination on religious grounds. In justifying its negative decision, the Polish Refugee Board indicated that the foreigner had not produced any evidence of persecution within the meaning of the Geneva Convention. The authority stated that it did not lend much credence to the foreigner’s political activism and that his marriage to a Polish citizen and the fact of his having children were irrelevant to the proceedings for recognition of refugee status.

B. lodged an appeal against the Board’s decision with the Supreme Administrative Court.

Decision & Reasoning: 

The Court overturned the decision appealed against, indicating that during the administrative proceedings the Board had not explained the new circumstance raised by the Appellant in the appeal, namely, that he was at risk of persecution due to his marriage in Poland to a Christian woman, and that the Board had not considered the merits of the application in light of Article 1D of the Geneva Convention. The Court criticised the Board on the grounds that – although it had not questioned the foreigner’s credibility – it had decided from the outset that the marriage was irrelevant to the refugee status proceedings. Such a position is unfounded because events that took place after a person left their country of origin may justify the recognition of refugee status even if the person seeking protection left their country of origin for other reasons. The Geneva Convention also provides protection to persons in relation to whom the grounds for granting refugee status arose after they left their country of origin (refugees sur place). Although such reasons are usually connected with a change of situation in the country of origin, one cannot exclude other events closely connected with the person seeking protection that took place after they left their country of origin.

The Court also criticised the administrative authorities on the grounds that, during the proceedings, they had failed to establish whether the foreigner was registered with UNRWA as a Palestinian refugee and consequently that they had failed to consider the application of Article 1D of the Convention in this case.

The Court noted that the content of Article 1D of the Geneva Convention is vague and open to contradictory interpretation, which is evident both in doctrine and in the practice of the Polish Refugee Board. The Court pointed to the fact that in a decision dating from 1999 the Board had granted protection to an applicant of Palestinian nationality on the grounds that the Applicant had spent many years outside the territory in which UNRWA operates and that the protection afforded to him by that organisation had therefore ceased and consequently he had automatically acquired the right to refugee status pursuant to the second sentence of Article 1D of the Convention.

Citing the views of doctrine, the Court carried out a thorough analysis of the application of Article 1D of the Convention in relation to applicants of Palestinian nationality. The Court indicated that the principle is that the reasons for recognising refugee status are assessed on an individual rather than on a group basis. Article 1D is an exception to this principle since the first sentence excludes application of the Convention to an entire group, while the second sentence ipso facto grants protection to an entire group under the terms of the Convention. Protection is granted to people at risk of persecution due to events that took place after they left their country of origin provided that the risk is present when the competent authorities determine the reasons for granting protection (refugees sur place). On the other hand, protection is denied to persons who, although they left their country of origin for reasons that justify the granting of protection, those reasons no longer exist when their request for protection is considered.

The Court also stressed that the principle arising from the second sentence of Article 1D cannot be interpreted more broadly since protection is granted to the group specified therein ipso facto, in other words, automatically, regardless of the actual needs of the individuals who belong to that group.

The above comments lead to the conclusion that the first and second sentences of Article 1D of the Convention are linked in the sense that it is possible to assert that the Appellant is a refugee ipso facto on the basis of the second sentence if it is established that the Appellant is a Palestinian refugee, a stateless person, registered by UNRWA, and residing in an area under the UNRWA mandate. As regards B., who has resided in Poland for many years, the exclusion clause provided for in the first sentence of Article 1D does not apply and he cannot ipso facto be regarded as a refugee. The international community excluded the application of the Convention to people who were refugees in 1951 since there was no doubt that these were people who had become refugees as a result of the Palestinian-Israeli war and had been forced to abandon their homes. That their situation was regulated as a group was due to the fact that they had had similar experiences. Refugee status was not recognised ipso facto on the basis of the second sentence of Article 1D of the Convention because the Appellant resided in a place not under the UNRWA mandate.The Convention clearly states that “when such protection or assistance has ceased for any reason”, the persons concerned shall be “entitled to the benefits of this Convention”. In the opinion of the Court, such a situation could result from the cessation or limitation of UNRWA’s activities and thus the suspension of assistance to the Palestinians.However, the mere fact of residing outside an area under the UNRWA mandate has only one effect, namely, that it cannot be held that the application of the Convention is excluded in relation to the Appellant on the basis of the first sentence of Article 1D. To summarise: the foreigner may apply for refugee status solely on the basis of the general criteria laid down in Article 1A of the Geneva Convention.

Outcome: 

The Court overturned the decision appealed against.

Observations/Comments: 

The ruling contains a thorough analysis of the proper interpretation of Article 1D of the Geneva Convention. One should note that the application of this article in relation to applicants of Palestinian nationality has led to numerous controversies and discrepancies in case law.

The content of the judgment is available from the Central Database of Administrative Court Judgments:

http://orzeczenia.nsa.gov.pl/doc/BD9A9BAC7C

Other sources cited: 

Article 31 of the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969.

M. Frankowska, The Law of Treaties, 1997

Lex Takkenberg The Status of Palestinian Refugees in International Law, Oxford: Clarendon Press, 1998

The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action, UNHCR, 2000