The decision concerns the interpretation of Article 12(1)(a) of the EU Qualification Directive. Under this provision, individuals who are registered with UNRWA are generally excluded from refugee status in the EU. However, if UNRWA protection or assistance has ceased for reasons beyond the individual’s control, these persons must ipso facto be granted refugee status.
In its decision concerning a stateless Palestinian, the German Federal Administrative Court (Bundesverwaltungsgericht) referred a preliminary question to the Court of Justice of the European Union (the CJEU) requesting clarification on the circumstances under which UNRWA’s assistance or protection is to be regarded as being ceased.
· Articles 2(d) and (n), 11(1) (f), 12(1)(a) and (b), 12(2) and (3), and 14(1) of 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
· Sections 3(3), second sentence, 27(1) and (3), 29(1) no.4, and 77(1) of the German Asylum Act
· Article 267 of the Treaty on the Functioning of the European Union (TFEU)
· Article 1(D) (specifically, first and second sentences) of the 1951 Geneva Convention Relating to the Status of Refugees
The applicant was born and lived in Syria as a stateless Palestinian before migrating to Lebanon in October 2013 to escape the Syrian civil war, seek work and support his family in Syria. Being unable to obtain a residence permit in Lebanon and under pressure to leave from the Lebanese authorities, he returned to Syria in November 2015. Shortly thereafter, he fled Syria and arrived in Germany in December 2015, where he applied for refugee status in February 2016. The applicant submitted an United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) family registration card indicating that he had been registered in the Yarmouk camp (Damascus, Syria).
The German Federal Office for Migration and Refugees (BAMF) granted him subsidiary protection but denied his asylum application. This decision was overruled by an administrative court, with the Higher Administrative Court reasoning that, as a stateless ethnic Palestinian, the applicant was a refugee under the German Asylum Act (AsylG).
BAMF appealed the ruling, seeking clarification regarding the conditions for recognising refugee status under section 3(3), second sentence, AsylG, which transposes Article 12(1)(a) of the Qualification Directive (2011/95/EU) into German law.
The applicant argued that UNRWA protection had ceased for reasons beyond his control, as his personal safety in Syria was at risk and neighbouring countries had closed their borders to Palestinian refugees. He claimed that his departure from Syria was not voluntary, and that he was unable to seek UNRWA protection elsewhere. Therefore, he contended, he should be granted refugee status under Article 1(D), second sentence, of the 1951 Geneva Convention Relating to the Status of Refugees (1951 Refugee Convention) and its corresponding transposition in EU and German law (§3(3), second sentence, AsylG).
As grounds for its appeal, BAMF argued that it needed to be clarified, inter alia, whether Article 12(1)(a), second sentence, of Directive 2011/95/EU applies if a stateless Palestinian who had been receiving UNRWA's protection or assistance resided for a relatively long period in another UNRWA field of operation (here: Lebanon) different from the one in which he had previously received such services (here: Syria) and did not seek protection or assistance from UNRWA in the field of his current residence.
The Federal Administrative Court identified legal uncertainty about the interpretation of Article 12(1)(a) of Directive 2011/95/EU.
The provision excludes from refugee status persons who receive UNRWA protection or assistance (the exclusion clause). However, under the second sentence (the inclusion clause), such persons are ipso facto to be entitled to refugee status if that protection or assistance has ceased for reasons beyond their control. In particular, the Federal Administrative Court emphasised that: “a third‑country national or a stateless person is excluded from being a refugee if he or she falls within the scope of Article 1(D) of the 1951 Geneva Refugee Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, … those persons shall ipso facto be entitled to the benefits of this Directive.” (para. 16)
The Federal Administrative Court therefore referred several questions to CJEU focusing on the geographical, temporal and material scope of this inclusion clause.
Specifically, the Federal Administrative Court sought clarification on:
1) when and under what circumstances a stateless Palestinian who previously received protection from UNRWA must be recognised as a refugee, particularly where protection or assistance from UNRWA has ceased;
2) whether the assessment should consider only the UNRWA field of operation where the person last had habitual residence when leaving the UNRWA area (e.g. Syria), or also other fields of operation with which the person may have substantial connections; and
3) how “habitual residence” should be understood under EU law and whether the national interpretation (as the centre of a person’s life for an indefinite period, even if the stay was unlawful unless removal measures were taken) can be used to interpret Article 12(1)(a).
Regarding the question of “cessation” of aid or assistance from the UNRWA, the Federal Administrative Court noted that if a person voluntarily leaves an area where they received sufficient UNRWA protection and moves to a region lacking such protection, this may not amount to “cessation” under the inclusion clause. Citing in particular the CJEU judgement in El Kott (C-364/11), the Federal Administrative Court observed that the conditions for the inclusion clause are met only if (i) the person’s personal safety is at risk and UNRWA unable to fulfil its mission of protection or assistance, and (ii) the departure from the UNRWA field of operation was involuntary. In particular, the Federal Administrative Court underlined that “for the purpose of determining whether assistance or protection have actually ceased … it is for the competent national authorities and courts to ascertain whether the departure of the person concerned may be justified by reasons beyond his or her control and independent of his or her volition which force him or her to leave the area in question and thus prevent him or her from receiving UNRWA’s assistance.” (para. 27)
Regarding the geographical scope, the Federal Administrative Court questioned whether only the UNRWA field where the applicant had his habitual residence when leaving UNRWA area (e.g., Syria) should be considered, or whether other fields of operation (e.g., Lebanon, Jordan) must also be examined. The Federal Administrative Court reasoned that, depending on the individual circumstances, further UNRWA fields of operation may be relevant if the applicant has substantial ties to them (e.g. former residence or close family members) and if access to those areas is realistically possible (e.g., entry and residence are permitted by the authorities). Where no such ties or feasible access exist, those fields should not be taken into account. The Federal Administrative Court clarified that “account is to be taken not solely of the respective field of operation in which the stateless person had his or her actual residence when he or she left UNRWA's area of operations, but also, depending on the overall circumstances of the individual case, of further fields of operation belonging to UNRWA's area of operations.” (para. 31)
Regarding habitual residence, the Federal Administrative Court stated that, under national law, this refers to the centre of a person’s life for an indefinite period, even if the stay is irregular or illegal, unless removal measures have been initiated. The Federal Administrative Court asked the CJEU to clarify whether this definition is compatible with EU law and may be used for interpreting Article 12(1)(a) of Directive 2011/95/EU.
As to the temporal scope of the inclusion clause, the Federal Administrative Court emphasised that the assessment must take into account not only the situation at the time of leaving the UNRWA area but also the situation at the time of the legal decision—in particular, whether the person can now (or at the time of decision) safely return either to the area of former habitual residence or to another realistically accessible area where UNRWA provides protection or assistance. In particular, the Federal Administrative Court stressed: “it must also be impossible for him or her, at the time of the … decision … to return to the area of operations and again receive UNRWA's protection or assistance. This is because … refugee status ceases … if the person concerned is able to return … because the circumstances which led to that person qualifying as a refugee no longer exist. … it would not make sense to recognise refugee status if it immediately had to be withdrawn.” (para. 41)
The Federal Administrative Court stayed its proceedings and referred the above-mentioned questions to the CJEU for a preliminary ruling. In its judgment of 13 January 2021 (C-507/19), the CJEU provided guidance on the interpretation of Article 12(1)(a) of Directive 2011/95/EU. Following that judgement, on 27 April 2021 (BVerwG, 1 C 2.21), the Federal Administrative Court remanded the case to the lower courts for additional findings of fact.
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· CJEU, 25 July 2018, C-585/16
· CJEU, 19 December 201, 2 C-364/11
· CJEU, 17 June 2010, C-31/09
· BVerwG, 25 April 2019, 1 C 28.18
· BVerwG, 23 February 1993, 1 C 45.90
· BVerwG, 26 February 2009, 10 C 50.07
· BVerwG, 4 June 1991, 1 C 42.88
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