CJEU - C-31/09 Nawras Bolbol v Hungary

The Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and the provisions of the Directive for determining who qualifies for refugee status and the content thereof were adopted to guide the competent authorities of the Member States in the application of that Convention on the basis of common concepts and criteria (see Joined Cases C‑175/08, C‑176/08, C‑178/08 and C‑179/08 Salahadin Abdulla and Others [2010] ECR I-0000, paragraph 52).

The provisions of the Directive must for that reason be interpreted in the light of its general scheme and purpose, while respecting the Geneva Convention and the other relevant treaties. Those provisions must be interpreted in a manner which respects the fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union (Salahadin Abdulla and Others, paragraphs 53 and 54).

The first question

By its first question, the referring court asks whether, for the purposes of the first sentence of Article 12(1)(a) of the Directive, a person receives protection and assistance from an agency of the United Nations other than UNHCR by virtue of the mere fact that that person is entitled to that protection or assistance, or must that person have availed himself of that protection or assistance.

UNRWA constitutes one of the organs or agencies of the United Nations other than UNHCR which are referred to in Article 12(1)(a) of the Directive and in Article 1D of the Geneva Convention. As the Advocate General observes, it is clear from UNRWA’s ‘Consolidated Eligibility and Registration Instructions’ (‘CERI’) – the currently applicable version of which was adopted during 2009 – that while the term ‘Palestine Refugee’ applies, for UNRWA’s purposes, to ‘persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948 and who lost both home and means of livelihood as a result of the 1948 conflict’, other persons are also eligible to receive protection or assistance from UNRWA. They include ‘non-registered persons displaced as a result of the 1967 and subsequent hostilities’.

It cannot be ruled out a priori that a person such as Ms Bolbol, who is not registered with UNRWA, could nevertheless be among those persons coming within Article 1D of the Geneva Convention and, therefore, within the first sentence of Article 12(1)(a) of the Directive. The Geneva Convention, in its original 1951 version, was amended by the Protocol on the Status of Refugees of 31 January 1967 specifically to allow the interpretation of that Convention to adapt and to allow account to be taken of new categories of refugees, other than those who became refugees as a result of ‘events occurring before 1 January 1951’.

In order to determine whether a person such as Ms Bolbol comes within a situation envisaged by the first sentence of Article 12(1)(a) of the Directive, it must be ascertained whether it suffices that such a person is eligible to receive the assistance provided by UNRWA or whether it must be established that he has availed himself of that assistance.

Article 1D of the Geneva Convention, to which Article 12(1)(a) of the Directive refers, merely excludes from the scope of that Convention those persons who are ‘at present receiving’ protection or assistance from an organ or agency of the United Nations other than UNHCR.

It follows from the clear wording of Article 1D of the Geneva Convention that only those persons who have actually availed themselves of the assistance provided by UNRWA come within the clause excluding refugee status set out therein, which must, as such, be construed narrowly and cannot therefore also cover persons who are or have been eligible to receive protection or assistance from that agency.

While registration with UNRWA is sufficient proof of actually receiving assistance from it, such assistance can be provided even in the absence of such registration, in which case the beneficiary must be permitted to adduce evidence of that assistance by other means.

In those circumstances, the answer to the first question referred is that, for the purposes of the first sentence of Article 12(1)(a) of Directive 2004/83, a person receives protection or assistance from an agency of the United Nations other than UNHCR, when that person has actually availed himself of that protection or assistance.

 It should be added that persons who have not actually availed themselves of protection or assistance from UNRWA, prior to their application for refugee status, may, in any event, have that application examined pursuant to Article 2(c) of the Directive.

The Court considered it unnecessary to reply to the other questions referred by the Budapest Metropolitan Court.