CJUE, 25 July 2018, Serin Alheto, C-585/16, EU:C:2018:584

In the case Serin Alheto the Court of Justice deals with the issue of applications for international protection lodged in a Member State by a particular category of refugees: Palestinians registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). In consideration of the very peculiar status accorded to such persons, the Court states that, in principle, a Palestinian who already has the refugee status from UNRWA and then later applies for international protection in a Member State cannot obtain the refugee status in the European Union, as long as he or she is receiving effective protection from such UN ad hoc agency. The protection granted to a Palestinian refugee from UNRWA, however, must exist not only in theory, but must be effective and real. The competent authorities of the Member States, therefore, must conduct an exhaustive and up-to-date examination of the application lodged by a Palestinian refugee in order to ascertain whether he or she is actually receiving effective protection from UNRWA.

Palestinian refugees – United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) – Article 1(D) 1951 Geneva Convention – Article 12(1)(a) Directive 2011/95/EU (Qualification Directive) – Effective protection from UNRWA

Francesco Luigi Gatta

A. Facts and Ruling

1. Facts and circumstances of the case

The applicant is Ms Serin Auad Alheto, a stateless person of Palestinian origin. Born in Gaza City, she holds a passport issued by the Palestinian National Authority and is registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”). In July 2014 Ms Alheto left the Gaza Strip via underground tunnels and reached Jordan, where she obtained a tourist visa issued by the Bulgarian Consulate in Amman. In August 2014 she entered Bulgaria, where she lodged an application for international protection.

In support of her application, Ms Alheto claimed that returning to the Gaza Strip would have exposed her to a serious threat to her life and personal safety because of the deteriorating situation in the region due to the armed conflict between Hamas and Israel. Ms Alheto also declared to be of Christian faith and to be active in the field of women’s rights: specific and additional circumstances that would have increased the risk of being exposed to violence and persecution. During the proceedings before the Bulgarian authorities, Ms Alheto also produced a document issued by the UNRWA containing her registration as a Palestinian refugee.

The Bulgarian authorities rejected Ms Alheto’s application on the ground of the lack of credibility of her allegations, also considering the overall situation in the Gaza Strip as stable and not sufficiently serious to cause real risks for her life and safety. Ms Alheto appealed against the decision before the Administrative Court of Sofia, which decided to refer a number of questions to the CJEU for a preliminary ruling, whishing to know, in particular, how an application for international protection made by a person in Ms Alheto’s position has to be handled according to EU law (namely, the so-called “Qualification Directive” and the “Asylum Procedures Directive”[1]).

2. The UNRWA and its role in the protection of Palestinian refugees

UNRWA was established in 1949 by the UN General Assembly in the wake of the Arab-Israeli conflict, as an ad hoc agency with the specific mandate to provide Palestinian refugees with protection and assistance[2]. Today UNRWA operates in Jordan, Lebanon, Syria, the Gaza Strip and the West Bank, providing approximately 5.5 million Palestinians – registered with the special status of “Palestine refugees in the Near East” – with a variety of services, including medical assistance, camp infrastructure, education, relief and social services[3]. In the absence of a solution to the Palestine refugees problem, UNRWA has become a stable and crucial actor for the protection of such populations: its mandate has been regularly renewed and extended during the years and currently runs until 30 June 2020[4].

UNRWA, however, has been facing serious challenges in recent years: the growing number of Palestine refugees and the consequent increased demand for services on the one hand, and the agency’s recurring financial crises on the other, have put the UN body under considerable strain, jeopardising its capacity to fulfil its mandate. The UNRWA’s financial insecurity, in particular, is a very serious issue: the agency’s budget is made, almost entirely, of voluntary contributions and, lately, it has been hit by continuous funding shortfalls, which have already provoked significant repercussions. As confirmed by the UN Secretary-General in its 2017 report on the operations of the UNRWA[5], the agency’s financial crises in recent years “have worsened dramatically”, already causing, on several occasions, the disruption in the provision of essential services such as education and healthcare for children.

This issue, moreover, has recently re-emerged as matter of serious concern due to the choice of the Trump administration to drastically cut the amount of resources in the UN agency’s funding: a controversial decision, which the agency itself considered as “surprising” and hardly explicable, especially in the light of the fact that the United States had always and consistently been the UNRWA’s largest and most generous donor[6].

Such decision – in addition to the provocative measure to move the US embassy from Tel Aviv to Jerusalem and recognise the latter as the capital of Israel – has raised severe criticism at the international level, being considered not only as a serious harm to the UNRWA’s humanitarian work, but also as a potential factor of further instability and insecurity in the already difficult Middle East peace process. Reactions in this sense have come also from the EU: the European Parliament, in particular, in its Resolution on the situation of Unrwa of 8 February 2018[7], expressed its concern for the impact of funding reductions on the assistance for Palestine refugees, urging the United States to reconsider their decision to withhold UNRWA funding. Federica Mogherini, the High Representative of the Union for Foreign Affairs and Security Policy, also criticised the United States’ approach, highlighting how “reducing the activities of UNRWA would cause instability and even security threats all around the region”[8].

3. Judgment and reasoning of the Court

The Court first clarifies that Palestinians registered as refugees with UNRWA, as Ms Alheto, have a specific and special status under International and EU law and are, therefore, different from other asylum applicants. Such peculiar position of Palestinians assisted by UNRWA is based on Article 1(D) of the 1951 Geneva Convention, which, with regard to EU law, corresponds to Article 12, §1, letter a) of the Qualification Directive 2011/95, which is drafted in almost identical terms.

As explained by the Court, Article 1(D) of the Geneva Convention contains both an exclusion (first sentence) and an inclusion clause (second sentence): according to the first one, the Convention shall not apply to persons who are receiving protection from organs or agencies of the UN other than UNHCR (as it is UNRWA); according to the second one, when protection from such UN organs or agencies has ceased for any reason, these persons shall ipso facto be entitled to the protection guaranteed by the Convention. At present, Palestinians registered with UNRWA are the only group of persons falling within the scope of application of Article 1(D) of the Geneva Convention.

Such provisions, as pointed out by the Advocate General Mengozzi in his opinion[9], have different rationales which consist, on the one hand, in avoiding the overlapping of competences between UNHCR and other UN organs (exclusion clause, first sentence) and, on the other, in guaranteeing the continuity in the protection of Palestinian refugees in the event that the protection they receive from such UN agencies should cease (inclusion clause, second sentence).

According to the CJEU, Article 12, §1, letter a) of the Qualification Directive, which reflects Article 1(D) of the Geneva Convention, is a lex specialis establishing a specific refugee status for a precise group of persons. Therefore, a Palestinian who already has the refugee status from UNRWA is, in principle, excluded from refugee status in the European Union, as long as he or she continues to receive this special protection from such UN ad hoc body. Palestinians registered with UNRWA, indeed, represent a specific category of persons who, because of their particular situation, benefit from the special treatment which the States signatory to the 1951 Geneva Convention decided to afford them. Persons falling into that category, thus, are already recognised as refugees by the international community and, as such, benefit from the special programme of protection entrusted to the specific competent agency established by the UN.

The Court, however, specifies that the protection granted by UNRWA must be effective, otherwise the mentioned inclusion clause provided for in the Qualification Directive (corresponding to those of the Geneva Convention) will apply. Recalling its case law on the scope of application of such exclusion and inclusion clauses (judgment of 17 June 2010, C-31/09, Bolbol and judgment of 12 December 2012, C-364/11, Abed El Karem El Kott and Others), the Court clarifies that the inclusion clause applies where it becomes evident, on the basis of an assessment carried out on an individual basis, that the Palestinian concerned faces a serious risk for his/her personal safety because he/she no longer enjoys the protection of UNRWA due to circumstances beyond his/her control. In that case, when the UNRWA’s protection is ineffective or inexistent, the Palestinian in question may ipso facto be entitled to the protection guaranteed by the Qualification Directive (unless he or she has been previously rejected on the basis of another exclusion ground or of inadmissibility.)

According to the Court, furthermore, pursuant to Article 46, §3 of the Asylum Procedure Directive, read in conjunction with Article 47 of the Charter of fundamental rights of the EU, national competent authorities must conduct a proper examination of the question whether the protection from UNRWA has ceased or is no longer effective for objective reasons. Moreover, national courts and tribunals deciding an appeal against a previous decision concerning an application for international protection must examine the applicant’s case in an exhaustive and fully up-to-date manner, taking into account all the relevant facts and points of law, including new evidence which might have come to light after the adoption of the decision under appeal.

Finally, the Court also states that both sentences in Article 12, §1, letter a) of the Qualification Directive have direct effect, since their content is unconditional and sufficiently precise for an individual to rely upon and that the second sentence of that Directive (which contains the inclusion clause) is applicable regardless of whether the applicant for international protection has expressly referred to it in the main proceedings.

B. Discussion

In Serin Alheto the CJEU was asked for guidance as how to handle applications for international protection lodged by the very specific category of Palestinian refugees registered with UNRWA. In answering the questions referred for preliminary ruling, the CJEU interpreted the relevant EU law in a manner consistent with the 1951 Geneva Convention, which, as affirmed by the Advocate General, constitutes “the cornerstone of the international legal regime for the protection of refugees”[10].

The Court, in particular, ruled that the aims of Article 1(D) of the Geneva Convention are to be attained and, given that the international community has decided to establish a peculiar status for ad hoc group of persons, the provision created for this purpose is to be respected. Therefore, coherently, a person who has already the special refugee status from UNRWA cannot have another refugee status also in the EU.

The Court, however, adopting a practical and protection-oriented approach, clarified that the mere formal registration of a Palestinian refugee with UNRWA is not sufficient: the protection from that agency, indeed, must be real and effective. This is why national authorities must carry out a fully up-to-date examination of the applicant’s individual situation in order to ascertain whether he/she is actually receiving (not a theoretical but) a concrete and effective protection from UNRWA. Especially in a moment in which the real capacity of that UN agency to fulfil its mandate to protect Palestinian refugees is put at serious risk because of its financial problems caused by controversial decisions of some national governments.

C. Suggested Reading

To read the case : C.J.E.U. (Grand Chamber), judgment of 25 July 2018, Serin Alheto, C-585/16, EU:C:2018:584

Doctrine :  

- R. Bocco, UNRWA and the Palestinian refugees: a history within history, Refugee Survey Quarterly, Vol. 28, Issue 2-3, 1 January 2009, pp. 229–252 ;

- R. Salahi, Reinterpreting Article ID: seeking viable solutions to the Palestinian refugee anomaly, Berkley Journal of Middle Eastern & Islamic Law, Vol. 1, Article 3, 2008 ;

- L. Tsourdi, « Réfugiés palestiniens et Directive 2004/83/CE dite « qualification » : interprétation des notions de la cessation de la protection ou de l’assistance d’UNRWA « pour quelque raison que ce soit » et du pouvoir de se prévaloir « ipso facto » de de la Directive qualification », Newsletter EDEM, janvier 2013.

Other materials :

- European Parliament, Resolution of 8 February 2018 on the situation of Unwra (2018/2553(RSP))

- UNHCR, Guidelines on international protection No 13, applicability of Article 1D of the 1951 Convention relating to the Status of refugees to Palestinian refugees, December 2017, HCR/GIP/16/12

- UNHCR, Note on UNHCR's interpretation of Article 1D of the 1951 Convention relating to the Status of refugees and Article 12(1)(a) of the EU Qualification Directive in the context of Palestinian refugees seeking international protection, May 2013

To cite this contribution: F.L. Gatta, “Palestine refugees in the European Union: Member States must verify the effectiveness of the protection from UNRWA through an exhaustive and up-to-date examination”, Cahiers de l’EDEM, Septembre 2018.