The case concerns how the authorities of an EU Member State should assess a subsequent application for international protection lodged by two stateless persons of Palestinian origin. The applicants’ registration with UNRWA prevented them, in principle, from beneficiating from refugee status under the Qualification Directive. However, the CJEU makes clear that the situation in Gaza after 7 October 2023 triggers the exception provided in Article 12(1)(a) of the Directive and that stateless persons of Palestinian origin can now be considered as refugees under EU law.
Article 40(1) of Directive 2013/32/EU
Article 12(1)(a) of Directive 2011/95/EU
Article 19 of the Charter of Fundamental Rights of the European Union
The applicants are a stateless mother and her child of Palestinian origin who fled Gaza in 2018 and entered Bulgaria unlawfully via Egypt, Turkey and Greece. Their first application for international protection in Bulgaria was based on the instability of the Gaza Strip, the lack of decent living conditions, and the situation of armed conflict there. It was rejected by the Bulgarian State Agency for Refugees on the grounds that the applicants had not been forced to leave because of a real risk of suffering serious harm, which they would not be likely to suffer if they returned; that there was no armed conflict; and that they could have stayed in the first safe country they crossed.
The applicants submitted a second application in which they relied on their registration with UNRWA in order to invoke Article 12(1)(a) of Directive 2011/95 (‘the Qualification Directive’), claiming that the protection and assistance of the UN agency should be considered to have ceased due to its financial crisis and consequent inability to provide the applicants with dignified living conditions. The applicants also cited the deterioration of the security situation, the interruption of the payment of the mother's salary, the lack of work, the curfew and ban on leaving the house imposed in Gaza, the closure of schools and the risk of rocket fire on their house due to the ongoing tensions between Hamas and Israel.
The Bulgarian State Agency for Refugees, after considering that the applicants’ proof of registration with UNRWA constituted an essential new circumstance relating to their personal situation and country of origin, accepted their subsequent application. However, it subsequently rejected it on the grounds that the examination of subsequent applications is limited to the existence, relevance and merits of a new element concerning the personal situation of the applicant or that of the country of origin. Since the applicants were already entitled to registration with UNRWA, had voluntarily renounced it and would benefit from it if they returned, such registration could not constitute such a new element.
The Administrative Court of Sofia decided to stay the proceedings and referred four questions to the CJEU:
First, the CJEU is asked to determine whether, when assessing a subsequent application, Article 40(1) of Directive 2013/32 allows authorities to rely on factual elements that had already been assessed by the authorities in the first application they rejected.
Second, the court needs to decide whether stateless persons of Palestinian origin registered with UNRWA could qualify as persons for whom “protection and assistance has ceased for any reason” within the meaning of Article 12(1)(a) of the Qualification Directive, without these persons having to prove that their personal circumstances induced them being specifically affected or targeted.
Third, the Court needs to clarify whether Article 12(1)(a) of the Qualification Directive should be interpreted as implying that the person could return to UNRWA’s area of operations during the proceedings, taking into consideration that there was no certainty that they would obtain necessary support from UNWRA, and that UNHCR considered the situation there as constituting justification for leaving and for non-return. The Court also needs to decide whether, its interpretation of Article 4 of the Charter of fundamental rights of the European Union (‘the Charter’) in its judgment in Jawo (C‑163/17, EU:C:2019:218) concerning extreme material poverty can be similarly relied on in relation of the situation in the Gaza Strip and the applicants’ reliance on UNRWA for food, health services, medicines and healthcare, when applying and complying with the principle of non-refoulement.
Fourth, the Court is required to rule on the meaning of the phrase “those persons shall ipso facto be entitled to the benefits of the Directive” in Article 12(1)(a) of the Qualification Directive.
The applicants grounded their action on the fact that the first applicant’s husband (and father of the second applicant) was forced to leave Gaza because of a risk that he would be subjected to torture or killed by the local police for his political activities; that UNRWA would not be financially able to provide for essential support; that return to the Gaza Strip would be objectively impossible due to restrictions from Israel; that the best interests of the child needed to be taken into account; and that return would place the applicants in conditions of extreme material poverty.
The Bulgarian State Agency for Refugees only relied on the fact that the applicants voluntarily renounced assistance from UNRWA.
On the first question, the Court noted that a subsequent application is a new application submitted after a final refusal of a first application, and constitutes, as such, an application for international protection independently of the legal basis on which it is made and that, in the present case, the subsequent application had been deemed admissible on the basis of the new element of a registration with UNRWA. The Court also explains that “where the conditions of admissibility of a subsequent application are satisfied, that application must be examined on the merits” (§48).
Consequently, the Court ruled that the authority ruling on the merits of a subsequent application must take into account all of the elements produced by the applicant in support of that subsequent application (§53), even the elements which have already been assessed. It is only at the stage of the admissibility examination that authorities should confine themselves to ascertaining whether there are new elements and whether they alone significantly increase the probability that the applicant will qualify as a beneficiary of international protection.
The Court underlines that this interpretation is “all the more necessary” when the new element “does not constitute a mere factual circumstance, but is likely to trigger the application of a rule of law different from” the one used in the previous application (§56).
In preliminary considerations on the second and third questions, the Court states that according to Article 12(1)(a) of the Qualification Directive, persons who are at present receiving protection or assistance from organs or agencies of the UN other than the High Commissioner for Refugees – such as the UNRWA – do not qualify as refugees except if their protection or assistance has ceased for any reason.
The court notes that the departure from UNRWA’s zone of action does not prevent a beneficiary of its protection to be excluded from the status of refugee under the Qualification Directive. The Court also indicates that the cessation of protection contemplated in Article 12(1)(a) can result from an impossibility of the Agency to continue its mission, and not necessarily from its actual abolition. This is consistent with the objectives of the disposition, which aims to guarantee effective protections to persons in need of it and not the simple existence of a body responsible for it. UNRWA’s protection or assistance should be considered to have ceased where, on the basis of an individual assessment, it can be shown that UNRWA is unable to guarantee its beneficiary dignified living conditions, with the result that he or she is compelled to leave the area. The Court subsequently elaborates on this finding, explaining that “the condition relating to the personal state of serious insecurity of the applicant” implies that while he or she must be personally confronted to it in the Agency’s area of operation, it does not require this insecurity to be specific to the person, or caused by his or her particular situation (§72). On the second condition, the Court explains that the inability of the Agency to provide the person with dignified living conditions and minimum safety can be caused by the general situation prevailing in that sector. Finally, the Court also notes that due account needs to be taken of the vulnerability of the applicant in this assessment.
When assessing the pertinent elements of the individual situation of the applicant, the authorities need to take into consideration up-to-date information on the situation in the area of operations of the Agency. Any potential deterioration of the situation in the area which would prevent them from receiving the Agency’s protection needs to be examined and acknowledged.
The national court needs to address the following points in its reasoning: first, in order to comply with the obligation to cooperate with the applicant, the Court should assess the elements invoked in the application, as well as the ones the rejecting authority took or should have taken into consideration. Secondly, when assessing UNRWA’s capacities, it needs to take into account the general situation prevailing in the Gaza Strip and its current deterioration since 7 October 2023. Thirdly, the Court needs to consider UNRWA’s protection to have ceased when its beneficiaries are in a situation of extreme material poverty breaching Article 4 of the Charter as found in paragraph 92 of the Jawo judgment. Finally, if the national court finds that UNRWA’s protection has ceased for an applicant, he or she “should be automatically granted refugee status” (§86).
The court deemed the fourth question inadmissible because the national court failed to explain why it requested the interpretation of those provisions.
1. According to Article 40 of Directive 2013/32/EU read in conjunction with the second sentence of Article 12(1)(a) of the Qualification Directive, when assessing a subsequent application, authorities should not dismiss facts that have already been assessed (and rejected) during the first application’s assessment.
2. According to the second sentence of Article 12(1)(a) of the Qualification Directive, UNRWA’s protection or assistance should be considered to have ceased when it finds itself unable, including by reason of the general situation in the sector, to ensure its beneficiary dignified living conditions. It is immaterial that the latter is specifically targeted by that general situation by reason of elements specific to his or her personal situation. Its beneficiary should also be in a state of serious insecurity if returned to the agency’s area of operations. This should be examined at the time of the assessment from the responsible authority or the national Court.
CJEU, 17 February 2009, Elgafaji (C‑465/07, EU:C:2009:94)
CJEU, 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826)
CJEU, 25 July 2018, Alheto, (C‑585/16, EU:C:2018:584)
CJEU, 19 March 2019, Jawo (C‑163/17, EU:C:2019:218)
CJEU, 16 July 2020, Addis (C‑517/17, EU:C:2020:579)
CJEU, 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3)
CJEU, 10 June 2021, Staatssecretaris van Justitie en Veiligheid (New elements or findings), (C‑921/19, EU:C:2021:478)
CJEU, 3 March 2022, Secretary of State for the Home Department (Refugee status of a stateless person of Palestinian origin) (C‑349/20, EU:C:2022:151)
CJEU, 14 September 2023, Vinal (C‑820/21, EU:C:2023:667)
CJEU, 5 October 2023, OFPRA (Refugee status of a Palestinian stateless person) (C‑294/22, EU:C:2023:733)
CJEU, 8 February 2024, Bundesrepublik Deutschland (Admissibility of a subsequent application) (C‑216/22, EU:C:2024:122)