European Court of Justice delivers milestone judgment on asylum claims by Palestinians

One of the asylum claimants involved in the case, Mostafa El Abed El Karem El Kott lived in the Ein el-Hilweh camp in Lebanon. Although he had a job, he did  not earn enough money to sustain his family, so he began selling alcohol in the camp. A terrorist group called Jund el-Sham then set fire to his house and threatened him. He escaped not only from the camp but from Lebanon as well.

Chadi Amin A Radi’s home and business in the Nahr el-Bared camp were destroyed as a result of clashes between the Lebanese Army and the Islamic Fatah. As there was no space for them in the nearby Baddawi camp, Chad Amin Radi, his parents and his siblings stayed with an acquaintance in Tripoli, Lebanon. However, the Lebanese soldiers insulted them, placed them under arbitrary arrest and tortured and humiliated them. Mr. A Radi left Lebanon with his father.

Hazem Kamel Ismail and his family lived in the Ein el-Hilweh camp. During the clashes between Islamic Fatah and Jund el-Sham extremists wanted to use his house. When he refused they threatened him and accused him of being an enemy agent.

These three Palestinian men are not connected merely through their past and their persecution, i.e the ordeals that forced them to flee to Hungary, but also by the fact that their asylum applications were rejected by the Hungarian Office of Immigration and Nationality (OIN). The OIN did however decide they either could not be returned to their country of origin (on non-refoulement grounds) and were granted authorisation to stay or they received subsidiary protection. In addition, neither of the Palestinians accepted the decision of OIN and they all challenged the rejection in court. In Hungary, there might be several dozens of Palestinians who, despite the persecution they had suffered, did not receive refugee status, even if they had previously received protection as Palestinians.

In the summer of 2011, the Budapest Municipal Court decided that it will not automatically reject applications for judicial review by Palestinians, who in most cases are also stateless. Instead, recognizing the gravity of this problem the court sought the European Court of Justice’s legal interpretation by referring these cases to the ECJ for a preliminary ruling.

During the preliminary ruling procedure a court in any Member State may request the Euroepan Court of Justice to interpret a specific provision of European Union law that the the court of the Member State intends to use in the context of a lawsuit. In principle, the interpretation given by the ECJ should be used as guidance to all courts in the EU in their legal interpretation. Moreover ECJ judgments are usually followed also by administrative authorities. In the procedure before the ECJ, not only the parties to the case but also any Member State and the European Commission can take part by making observations. The significance of the case at issue is also shown by the fact that the UN High Commissioner for Refugees and a number of Member States (including the UK, German and French governments) also decided to intervene beside the Palestinian plaintiffs and the Hungarian government.

The ECJ judgment was indirectly linked to the interpretation of a specific provision (Article 1D) of the 1951 Refugee Convention, which was originally intended to settle the position of Palestinian refugees after the establishment of the state of Israel and after the occupation of territories during the Six-Day War in 1967. These two historical events produced a unique situation, in which tens of thousands of Palestinians were forced to leave their homes due to a decision made by the United Nations (i.e. essentially the community of all the nations of the world). The 1951 Refugee Convention tried to resolve this particular (and particularly serious) situation.

The UN originally envisioned all this by setting up a specific and temporary regime for the Palestinians that runs parallel with the general refugee protection regime provided by the 1951 Refugee Convention. However, this regime disqualifies Palestinians from receiving protection in distant countries as persons originating from other countries who seek asylum. (Mostly because Western countries were not willing to deal with the burden of a potential surge of Palestinian asylum seekers.) Nevertheless, an auxiliary provision was established in the 1951 Refugee Convention in terms of which if the parallel protection would cease for any reason, Palestinian refugees should be automatically eligible for refugee status in any state party to the 1951 Refugee Convention. Obviously, this provision was crafted to avoid a situation where Palestinians would remain unprotected. (The special provisions on Palestinian refugees are not considered unique only because during the horrible Korean War similar rules were applied to the refugees there as well. However, the UNKRA and the special provisions concerning Koreans were abolished as early as 1960.)

As originally imagined, two UN-bodies, the United Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), would have constituted the two pillars of the protection regime for the fleeing people who were driven out Israel. However, the UNCCP, which was intended for defense and security tasks, had never actually become operational. The UNRWA can offer social-humanitarian assistance only to a limited extent in some of the countries and regions where Palestinian refugees live (in Syria, Lebanon, Jordan, the Gaza Strip and the West Bank, including East Jerusalem). The UNRWA has no military or security services, thus it is unable to curb the violence in the Palestinian refugee camps and protect civilians from the military actions of the Israeli army.

The Hungarian court (before which the three Palestinian cases were joined in a single procedure) sought answers to the following questions: In what cases can it be established that the protection granted to the claimants by the UNRWA ‘locally’, i.e. close to their former residence, has ceased? And if this protection has indeed ceased, should Palestinians be automatically (ipso facto) granted refugee status?

The Palestinian asylum seekers were represented by attorneys working with the Hungarian Helsinki Committee (HHC) in both the Hungarian and the ECJ procedures.

From all the interpretations of all the concerned parties, the ECJ adopted an interpretation that was both reasonable and closest to HHC’s legal position. According to the judgment, the cessation of protection does not only arise when the UNRWA itself is abolished or when it ceases its activities, but also when Palestinian refugees are not able to live safely in the area of the Agency’s operations (for example, in a Lebanese refugee camp) and the UNRWA is unable to grant them the support and services in accordance with its mandate.

The ECJ argued that if the personal safety of a Palestinian refugee is at serious risk (for example due to civil war and military operations, or possibly because of gang wars in the refugee camps), and the UNRWA is unable to perform the mission to which it had been entrusted, the protection of that Palestinian refugee should be considered as having ceased. That is, if the refugee applies for asylum in any of the EU Member States, he should be automatically recognized as a refugee (unless, of course, exclusion grounds would be applicable, such as when the person is a terrorist).

The ECJ judgment therefore, in our view, opens the way for tens of thousands of Palestinian refugees to be recognized as refugees in EU countries — provided the above conditions are met. This means that refugees with ‘a special Palestinian protection’ may successfully apply for new protection to EU member state authorities if they can prove that UNRWA was unable to protect them.

Thus, Palestinians are no longer forced to ‘locally’ avail themselves of a protection that has never been complete for reasons beyond their control and that has never provided them with the possibility of a safe and peaceful life, something that is granted to all other refugees who flee persecution in their own countries.

Translation of the post at http://helsinkifigyelo.hvg.hu/2013/01/16/fontos-europai-itelet-palesztin-menekulokrol/ by Veronika Kozma.

The judgment can be found here.