ECJ landmark ruling on automatic refugee status for Palestinians from Syria

Original interview in the ECRE Weekly Bulletin 8 February 2013

The Refugee Convention and the Qualification Directive stipulate that refugees receiving assistance from the UN Agency for Palestine Refugees in the Near East (UNRWA) shall not benefit from protection under the Refugee Convention, unless the assistance provided by UNRWA has ceased without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations. The Court of Justice of the European Union (CJEU), in its ruling in the El Kott case (C-364/11), has for the first time, established that it can be considered that UNRWA's assistance has ceased when it is impossible for the Agency to accomplish its mission and when refugees are forced to leave its area of operations as otherwise their personal safety would be at serious risk. In these cases, Palestinian refugees who apply for asylum in the European Union should be granted asylum automatically.

In Syria, UNRWA hosts some 486,000 Palestinian refugees in its nine camps.

The case which gave rise to the preliminary ruling had been litigated before a Hungarian Court by Gábor Győző, attorney at the Hungarian Helsinki Committee, who also pleaded before the CJEU which accepted to great extent his legal arguments.

Following the El Kott judgment, will EU Member States consider that assistance by UNRWA in Syria may have ceased?

They should, because all criteria defined by the CJEU are met in those cases, i.e. there is a serious risk to personal safety and UNRWA is unable to accomplish its mission. In my understanding, the judgment is quite straightforward and leaves little room for further interpretation by the national authorities and/or courts.

What will be the impact of this judgment for Palestinians from Syria applying for asylum in EU countries?

In my opinion, all asylum seekers from Syria meet the definition of serious harm under Article 15(c) of the Qualifications Directive at this moment, therefore, one condition set by the El Kott-judgment is met, as their personal safety is definitely at serious risk. It seems also quite obvious that UNRWA is unable to accomplish its mission in such a large-scale armed conflict, so the second condition set by the El-Kott judgment is also met. Conclusively, Palestinians from Syria who can prove that prior to leaving the country they have been protected by UNRWA – or at least that they were registered with the Agency-, should be granted refugee status automatically.

However, according to the El-Kott judgment, Articles E and F must be applied in the status determination procedure. These articles exclude from refugee status those persons who enjoy the rights and obligations attached to the nationality of the country where they have taken residence and those who have committed war crimes and crimes against humanity, serious non-political crimes or are guilty of acts contrary to the principles of the United Nations. If those may be applied, no status can be granted so in this sense automatic does not really mean completely automatic.

Should Palestinians, who were not settled in Syria, applying for asylum in the EU also be granted refugee status automatically?

All Palestinians who meet the criteria of being registered with UNRWA, settled in a location where the security situation is 'bad enough' to constitute a serious risk of personal safety and where UNRWA is unable to operate, should be granted refugee status in the EU.

In this judgment, the CJEU has provided an interpretation of article 12.1(a) of the Qualification Directive that incorporates Article 1D of the Refugee Convention, ratified by countries across the globe. Do you think that the interpretation provided by the CJEU will be followed by Courts in other parts of the world?

It is really hard to tell. On one hand, the CJEU is a prestigious institution, and its interpretations usually have an impact on a global scale. On the other hand, it is a very brave judgment, and it concerns a politically sensitive issue, let alone the prospect of thousands of asylum seekers being more or less automatically entitled to refugee status. Its scope refers not only to Syria, but also to Palestinians living in the Gaza Strip or the refugee camps of Lebanon.

Have there been cases concerning the same clause of the Refugee Convention regarding protection of persons receiving assistance from UNRWA before other jurisdictions?

The only reference for jurisprudence I relied on in the previous procedure I pleaded before the CJEU concerning Palestinian refugees (the Bolbol-case) was a judgment of the Cour Nationale du Droit d’Asile of France from 2008 which took an even more liberal standpoint than the El-Kott-judgment but it was later overturned by the Conseil d’État. However, this judgment did not contain a tangible line of argument to refer to. Otherwise the few available judgments from around the world maintained a quite restrictive approach, so it wouldn’t have been practical to use them.

Where did you get inspiration from?

I gained inspiration from the notes and guidelines of UNHCR, as well as the excellent amicus curiae brief by Professors Akram and Goodwin-Gill prepared for a US Board of Immigration Appeals procedure. I was also provided with valuable information by the field offices of UNRWA. Furthermore, in this procedure I could rely on Advocate General Sharpston’s opinion in the Bolbol-case as she did not omit the issues arising again in this present procedure as the CJEU did.

Have you had similar cases where the Hungarian courts had not considered it necessary to refer to the Court of Justice of the European Union (CJEU) for a preliminary ruling?

Yes, it took several years until one of the judges of the Metropolitan Court of Budapest found this issue pressing and incomprehensible enough to initiate a referral. Until then, persons in similar circumstances usually were provided with subsidiary protection. Their eligibility under the Refugee Convention was reviewed but usually judges failed to grant them refugee status. The first referral was made in the Bolbol-case (C-31/09), in which the CJEU ‘only’ defined when a person receives assistance from UNRWA . Then the same judge decided to push those issues that were omitted in the Bolbol-case and launch another preliminary ruling procedure.