C-507/19: CJEU interprets Article 12(1)(a) QD as referring to ‘effective access to territory’

Wednesday, January 13, 2021

On 13 January 2021, the CJEU ruled, in case C-507/19 Bundesrepublik Deutschland v XT, on the interpretation of Article 12 of the Qualification Directive (Directive 2011/95).

The case concerns XT, a stateless person of Palestinian origin, who was born and raised in Syria, where he is registered as a Palestinian refugee in the UNRWA refugee camp of Yarmouk. XT resided in Lebanon, after which he returned to Syria and, finally, due to the war and poor living conditions there, left for Germany, where he was granted subsidiary protection. On appeal, the Higher Administrative Court granted XT refugee status, concluding that he was at serious risk when he left Syria and that UNRWA had ceased to provide him with the necessary protection and assistance. It also observed that Lebanon and Jordan simultaneously closed their borders to Palestinian refugees from Syria, which in effect prevented XT from returning to Lebanon. Subsequently, the German authorities brought an appeal on a point of law before the Federal Administrative Court, which stayed the proceedings and referred several preliminary questions to the CJEU.cess

First, the CJEU was asked which field of UNRWA’s area of operations should be taken into account, according to Article 12(1)(a) of the Qualification Directive, in the assessment that seeks to determine whether UNRWA’s protection or assistance of a stateless person of Palestinian origins has ceased. After extensively referring to Article 1(D) of the Refugee Convention, UNRWA’s mandate and the CJEU’s judgment in Alheto, it concluded that after an individual assessment, it was necessary to take into account all the fields of UNRWA’s area of operations that a stateless person of Palestinian origin who has left that area, has a concrete possibility of accessing and where he can safely remain. In that regard, the CJEU stressed that, inter alia, previous residence, the existence of family ties or the right to obtain a residence permit in a State or autonomous territory that falls under UNRWA’s area of operations constitute an indication of a person’s ability to access and remain safely in an area, rather than conclusive evidence. Consequently, the CJEU asserted that, if the assessment shows that a stateless person of Palestinian origin was, in fact, able to reach and safely remain on the territory of one of the fields of UNRWA’s area of operations in which that agency was able to offer him or her its assistance or protection, it cannot be considered that the protection or assistance from UNRWA has ceased. 

Secondly, the CJEU left it to the national court to verify, whether XT could have been reasonably expected to either receive protection or assistance from UNRWA or be able to return at short notice to the field from which he came, when he had left UNRWA’s area of operations in Lebanon, to travel to Syria, and, on the basis of the specific information available to him concerning Syria. If that is the case, XT’s departure, according to the second sentence of Article 12(1)(a) Qualification Directive, cannot have been involuntary. Nonetheless, the CJEU further stressed that is necessary to assess every case individually. It underlined that the authorities, in their assessment, must take into consideration the sudden and unforeseeable nature of the development of the situation, such as closure of the borders between the fields of that area of operations, or the outbreak of conflict in one of those fields. By consequence, it hinted that, following these considerations, it did not appear that XT’s departure was voluntary.

Photo: triin, May 2007, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Actors of protection
Cessation of protection
Individual assessment