The applicants are stateless Palestinians who seek to be recognised as refugees in Germany. Ultimately, the Higher Administrative Court of Saarland confirmed the decision to grant them refugee status on the basis of their registration as Palestinian refugees and the involuntary cessation of UNRWA protection.
- Section 3 (3) of the German Asylum Act (AsylG);
- Article 12 EU Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (Qualification Directive);
- Article 35 EU Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (Procedures Directive)
The applicants are stateless Palestinians from Syria and a family of five. They entered Germany in November 2015 and applied for asylum and international protection. They are registered as Palestinian refugees with the United Nations Relief and Work Agency for Palestine Refugees in the Near East (UNRWA). In June 2016, the German Federal Office for Migration and Refugees (BAMF) granted the applicants subsidiary protection status but rejected their application for refugee status. The applicants brought an action against this decision before the Administrative Court, which allowed the action. The BAMF then appealed against this.
The applicants argued that the living conditions in Syria and the risk of persecution, torture and human rights violations by the Syrian State or other parties to the conflict have forced them to flee. They were unable to receive protection from UNRWA in other areas of operation and were involuntarily forced to give up UNRWA protection. In addition, the applicant pointed out that he could also face political persecution for withdrawing from military service.
The BAMF argued that the conditions for granting refugee status were not met. It referred to existing case law (in particular German Federal Administrative Court, ref. 1 C 2.21, judgment of 27 April 2021), according to which individual risk-increasing circumstances for the applicants had to be examined. It also argued that persecution due to residence and asylum application abroad or flight from Syria had to be proven and that a claim for protection due to UNRWA protection had to be examined, taking into account all areas of UNRWA operation.
The Higher Administrative Court rejected the BAMF's appeal and upheld the granting of refugee status. It essentially based its decision on the following reasons:
The Court found that although the applicants are not already threatened with political persecution within the meaning of Section 3 (1) AsylG because of their departure, their application for asylum or their stay abroad in Germany, they still have a claim to refugee status.
In this sense, the court ruled that an applicant is to be recognised ‘ipso facto’ as a refugee in accordance with Section 3 (3) German Asylum Act (AsylG) without having to prove a well-founded fear of persecution within the meaning of Section 3 (1) AsylG with regard to their country of origin or, in the case of a stateless person, their country of habitual residence. Rather, the Federal Republic of Germany must grant protection on the basis of the applicants’ status as registered Palestinian refugees if there is (i) no evidence of grounds for exclusion under Section 3 (2) AsylG due to serious cases of crime mentioned therein and (ii) protection by UNRWA is no longer granted or has been involuntarily abandoned by the applicant. In this regard the Court stated that the general exclusion from recognition as a refugee due to alternative protection (Section 3 (3) sentence 1 AsylG) no longer applies if the applicants were forced to leave the UNRWA area of operations due to circumstances beyond their control. The court also found that, in addition to such an involuntary cessation of UNRWA protection, the applicants must, at the time of the court's decision, still have no possibility of regaining it by returning to the UNRWA area of operations.
The Higher Administrative Court found that the applicants had not voluntarily renounced the protection of UNRWA. The civil war in Syria, which has led to a halt in repatriations from Germany, has also resulted in a nationwide threat in the sense of Section 4 (3), 3e AsylG, making it impossible to find protection in Syria. The court argued that the BAMF itself had recognised that the applicants are at risk in Syria due to a nationwide threat. Lebanon, Jordan, the Gaza Strip and the West Bank do not offer a safe alternative.
Citations from the judgment (unofficial translation of German text):
“Rec. 26: The claimants have an original claim to recognition of refugee status by the defendant. This arises from Section 3 (3) sentence 2 AsylG. In the specific case, the characteristics of Section 3 (1) AsylG are not relevant. The fact that the position of the plaintiffs as stateless Palestinian refugees (Section 3 (3) sentence 1 AsylG), which is ultimately relevant to the decision and only became the focus of the parties' consideration in the course of the appeal proceedings, is not yet the subject of the assessment of the merits of the case. The question as to whether the defendant's behaviour in the administrative proceedings and by the administrative court was correct is irrelevant.
Rec. 27: The "exclusive" applicability of Section 3 (3) AsylG in relation to Section 3 (1) AsylG follows from sentence 1 of the provision ("exclusion clause"). According to this, a foreigner is not a refugee pursuant to Section 3 (1) AsylG if he or she "enjoys" the protection or assistance of a United Nations organisation or institution with the exception of the United Nations High Commissioner for Refugees pursuant to Article 1 Section D of the Convention Relating to the Status of Refugees, i.e. the United Nations Relief and Work Agency for Palestine Refugees in the Near East (UNRWA) is responsible for the protection of the person and has confirmed this through registration. This is indisputably the case for the plaintiffs. They have already submitted a UNRWA certificate dated 21 January 2014 ("Report No. R11/R1010") to the file in the administrative proceedings. According to this, all claimants are entered in the register of the aid organisation (Registration Field Syria/Area North).
Rec. 28: In an appeal judgment from April 2018, the Federal Administrative Court ruled in a comparable case that, in the event of proven registration as a Palestinian refugee, the requirements of Section 3 (3) sentence 1 AsylG (exclusion clause) must be affirmed and that refugee status cannot therefore be granted on the basis of Section 3 (1) AsylG. The only decisive factor in this respect is therefore that the claimants are proven to belong to the group of persons whose care UNRWA has assumed on the basis of its UN mandate. The exclusion clause in Section 3 (3) sentence 1 AsylG is intended to ensure that UNRWA takes care of the Palestinian refugees and that the "contracting states" are responsible for this.
Rec. 29: Whether the registered Palestinian refugees could and (today) can actually obtain the UNRWA protection to which they are entitled under the international agreements is then solely a question of Section 3 (3) sentence 2 AsylG. The aforementioned judgment of the Federal Administrative Court of 27 April 2021 also states that the application for recognition of refugee status by a person seeking protection in Germany can "only" be successful if the requirements of Section 3 (3) sentence 2 AsylG (so-called inclusion clause) are met.”
In conclusion, the Higher Administrative Court therefore confirmed the lower court’s decision to grant refugee status.
The applicants were recognised as refugees in accordance with Section 3 (3) sentence 2 AsylG on the basis of their registration as Palestinian refugees and the involuntary cessation of UNRWA protection. The court found that neither return to Syria nor relocation to other UNRWA areas was reasonable or possible. The defendant's (BAMF) appeal was therefore dismissed.
- CJEU, Bundesrepublik Deutschland v XT, case C‑507/19, judgment of 13 January 2021
- German Federal Administrative Court, ref. 1 C 2.21, judgment of 27 April 2021