Opinion of the Advocate General — ECLI:EU:C:2021:826
Date: 2021-10-06
Language of the case: English
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

C-349/20 - 1
First-tier Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/07865/2019, PA/07864/2019
THE IMMIGRATION ACTS
Heard at Taylor House Determination Promulgated
On 14 February and 17 July 2020
Before
DR H H STOREY
SITTING AS A JUDGE OF THE FIRST TIER TRIBUNAL
Between
NB
AB
(ANONYMITY DIRECTION MAINTAINED)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
Intervenor
Representation:
For the Appellants: Mr Raza Hussain, QC (for remote hearing of 17 July 2020 of
further submissions only), Ms G Capel, Counsel, instructed by Wilsons Solicitors LLP 
For the Respondent: Ms R Main Home Office Presenting Officer
© CROWN COPYRIGHT 2020
Appeal Numbers: PA/07865/2019, PA/07864/2019
FINDINGS AND ORDER FOR PRELIMINARY REFERENCE TO THE CTEU
1. The order for preliminary reference to the CJEU under Article 267 of the Treaty on the 
Functioning of the European Union (TFEU) made in respect of these appeals is to be found 
at paragraph 131 below.
2. The appellants, mother and son, are stateless Palestinians formerly resident in Lebanon. 
She is aged 40. They are in the UK with the first appellant's husband, KB, aged 48. 
Counting the second appellant, AB, the couple have five children: M, aged 14, AB aged 
13, Y, aged 12, S, aged 5 and H, aged 7 months. All save H are UNRWA-registered 
Palestinian refugees. All save H were living in the A1 Bass (sometimes spelt A1 Buss) 
refugee camp in southern Lebanon until they left Lebanon in September 2015 and 
travelled to the U.S. on a visa. All save H came to the UK on 11 October 2015. All save for 
AB and H are dependants in the first appellant's appeal. She and AB appeal against the 
decision made by the respondent on 3 September 2019 to refuse to grant them asylum or 
humanitarian protection under paragraphs 336 and 339F of HC395 (as amended).
3. Of particular importance to the appellants' appeal is the medical condition of AB. He is 
a disabled child with severe and complex needs. He suffers from hydrocephalus; cerebral 
palsy affecting his trunk, legs and left arm, which means that he is not able to walk; 
scoliosis; severe learning difficulties; optic atrophy and nystagmus in both eyes (he is 
registered sight impaired); intermittent seizures (treated with emergency medication); and 
double incontinence.
Procedural history
4. Mr KB had applied for asylum in May 2016, with all but H (who was not yet born) as his 
dependants. His asylum claim was refused in November 2016 and his appeal was 
dismissed by Judge Traynor of the First-tier Tribunal on 2 October 2018. His application 
for onward appeal was unsuccessful. The basis of his asylum claim had been that he 
would be at risk on return from Hezbollah because he had employed Palestinian and 
Syrian people illegally and an arrest warrant had been issued against him. Like the 
respondent, Judge Traynor accepted that Mr KB and his family were Palestinians from 
Lebanon but did not find that he had given a credible account otherwise. In a witness 
statement of 5 June 2019 prepared for the present appeal, Mr KB admits that his claim to 
be at risk from Hezbollah was a fabrication. Judge Traynor found that the fact that the 
appellant had not sought asylum in the United States (U.S.), despite flying there with his 
family on a visa, indicated that his real motive was always to find affordable medical help 
for AB. Judge Traynor also considered whether the appellant was entitled to succeed on 
human rights grounds by virtue of his son's medical condition and concluded that the 
latter's health circumstances did not cross the N v SSHD [2005] UKHL 31 threshold and 
that there would be education targeted to his specific needs, healthcare and appropriate 
medication available for him in Lebanon. The judge found that in Lebanon AB had 
received medical support and treatment and it was in his best interests to remain with his
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family who could continue to provide him with the necessary care and support. He also 
concluded that the appellant's circumstances could not succeed on Article 8 grounds, 
either under or outside the Immigration Rules.
5. The appellants' representatives had advised the appellants to make an asylum claim in 
their own right in March 2019. Prior to the refusal decision, the respondent responded to 
further representations stating that it was "accepted that there is discrimination in 
Lebanon against disabled Palestinians...", but did not consider that the appellants' 
circumstances, AB's in particular, constituted persecution or serious harm or ill treatment 
or disproportionate interference with their Article 8 rights.
6. I conducted an oral hearing of the appeal on 14th February 2020. At the end of the 
hearing I stated that I would make a direction designed to obtain further evidence from 
the Early Intervention Centre in A1 Bass camp (see below paragraphs 64-73) and permit 
further submissions on it. That was sent to the parties the same day. After receiving 
further evidence and submissions, I sent a decision headed "Findings and Further 
Directions" dated 11 May 2020 in which I noted that in light of my findings of fact relating 
to the appellants [which were in identical form to those set out in this decision), there were 
several issues of interpretation that I did not consider acte clair. Having identified three 
draft questions which I proposed to refer to the Court of Justice of the European Union 
(CJEU), I invited the parties to make submissions as to their efficacy. I also informed them 
that I wish to have their views on my intention to join UNHCR as an intervening party. I 
received in response further written submissions from Mr Hussain, Ms Capel and Mr Toal 
on behalf of the appellants and Mr Main on behalf of the respondent. In light of these 
responses, I decided to hold a further hearing confined to argument regarding the possible 
questions for reference. This took place on 17 July 2020. It took the form of a remote 
hearing due to measures taken by the tribunal in response to the COVID 19 pandemic. On 
this occasion, Mr Raza Hussain QC represented the appellants, with the assistance of 
Counsel, Mr Ronan Toal and Ms Grace Capel and solicitor Ms Anita Vashist of Wilsons 
Solicitors. Mr Richard Main represented the respondent as he had done at the hearing. I 
wish to express my gratitude to the parties for their careful and well-presented 
submissions. I refer to them at relevant points below, but note here the important fact that 
both were in agreement to my joining UNHCR as an Intervener at the domestic stage of 
proceedings.
7. As a result of the further (remote) hearing on 17 July 2020 I have decided to make a 
preliminary reference to the CJEU under Article 267 TFEU. My reasons for so deciding are 
set out in PARTS C and D below. I have also decided to join UNHCR as an intervenor at 
this stage: see PART E.
8. What follows is divided into five parts: A: RELEVANT LAW AND MATERIALS; B: 
ESTABLISHMENT OF THE FACTS; C: RELEVANT LEGAL ISSUES; D: QUESTIONS 
TO THE CJEU; and E: DIRECTION JOINING UNHCR AS INTERVENOR.
A: RELEVANT LAW AND MATERIALS
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Relevant UK and EU asylum law
9. The key provisions of UK law transposing Council Directive 2004/83/EC of 29 April 
2004 on minimum standards for the qualification and status of third country nationals or 
stateless persons as refugees or as persons who otherwise need international protection 
and the content of the protection granted (the Qualification Directive or QD) are contained 
in The Refugee or Person in Need of International Protection (Qualification) Regulations 
2006 and the Immigration Rules (the 2006 Regulations).
10. By regulation 2 of the 2006 Regulations, "'refugee' means a person who falls within 
Article 1(A) of the Geneva Convention and to whom regulation 7 does not apply". 
Regulation 7(1) provides that "[a] person is not a refugee, if he falls within the scope of 
Article 1 D, IE or IF of the Geneva Convention."
11. Article ID of the 1951 Convention provides:
"This Convention shall not apply to persons who are at present receiving from 
organs or agencies of the United Nations other than the United Nations High 
Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of 
such persons being definitely settled in accordance with the relevant resolutions 
adopted by the General Assembly of the United Nations, these persons shall ipso facto 
be entitled to the benefits of this Convention."
12. Paragraph 339AA of the Immigration Rules states that:
"This paragraph applies where the Secretary of State is satisfied that the person 
should have been or is excluded from being a refugee in accordance with regulation 
7 of The Refugee or Person in Need of International Protection (Qualification) 
Regulations 2006."
13. The corresponding provisions of the QD are well-known and are based closely on the 
1951 Refugee Convention, Article ID in particular. They have been retained word-for- 
word in Directive 2011/95/EU of the European Parliament and of the Council 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 
(the QD(recast)).
14. Article 12(l)(a) QD provides:
"A third-country national or a stateless person is excluded from being a refugee if:
a) he or she falls within the scope of Article 1(D) of the Geneva Convention, relating 
to protection or assistance from organs or agencies of the United Nations other than
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the United Nations High Commissioner for Refugees. When such protection or 
assistance has ceased for any reason, without the position of such persons being 
definitely settled in accordance with the relevant resolutions adopted by the General 
Assembly of the United Nations, those persons shall ipso facto be entitled to the 
benefits of this Directive"
15. When the Refugee Convention was signed on 28 July 1951 there were two organs other 
than the UNHCR providing protection or assistance to Palestinian refugees: the United 
Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief 
and Works Association (UNRWA). The UNCCP ceased to play any role since the 1960s 
although it continues to exist nominally. Thus to all intents and purposes the only UN 
organ or agency presently falling within the scope of Article ID is UNRWA. According to 
Albanese and Takkenberg, it has "gradually evolved into a large agency, engaging in a 
variety of humanitarian, development and protection activities".1 UNRWA's "area of 
operations" covers the Gaza Strip, the West Bank (including east Jerusalem), Lebanon, 
Jordan and Syria.
16. In Case C-364/11 El-Kott at paragraph 76 the CJEU set out the conditions required in 
order to establish refugee status ipso facto as follows:
"[A] person who is ipso facto entitled to the benefits of [the QD] is not necessarily 
required to show that he has a well-founded fear of being persecuted within the 
meaning of Article 2(c) of the directive [now Article 2(d) QD (recast)], but must 
nevertheless submit... an application for refugee status, which must be examined by 
the competent authorities of the Member State responsible. In carrying out that 
examination, those authorities must verify not only that the applicant actually sought 
assistance from UNRWA ..., and that the assistance has ceased but also that the 
applicant is not caught by any of the grounds for exclusion laid down in Article 
12(l)(b) or (2) and (3) of the directive ."
17. Earlier, at paragraph 52, the court stated that the expression 'at present receiving 
protection or assistance' must therefore be interpreted as covering not only persons who 
are 'currently availing themselves' of assistance provided by UNRWA but also:
"[persons] who [...] availed themselves of such assistance shortly before submitting 
an application for asylum in a Member State, provided, however, that that assistance 
has not ceased within the meaning of the second sentence of Article 12(l)(a) [QD]."
18. According to the El Kott judgment, one of the objectives of Article 12(l)(a) QD is "to 
ensure that Palestinian refugees continue to receive protection by affording them effective 
protection or assistance [...]" . The application of Article 12(l)(a) must take account of the 
objective of Article ID of the Refugee Convention, which is "to ensure that Palestinian 
refugees continue to receive protection, as Palestinian refugees, until their position has
1 F Albanese and L Takkenberg, Palestinian Refugees in International Law, O.U.P. 2nd ed 84.
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been definitively settled in accordance with the relevant resolutions adopted by the 
General Assembly of the United Nations" .
50. In paragraphs 51 and 61 it is stated that in the light of that objective, the circumstances 
in which 'such protection or assistance has ceased for any reason' within the meaning of 
the second sentence of Article 12(l)(a) QD include:
- "events affecting UNRWA directly such as the abolition of UNRWA or an event 
which makes it generally impossible for UNRWA to carry out its mission"; and
- circumstances which are "beyond [the] control and independent of [the] volition [of 
the person concerned] which force him to leave the area in question and thus prevent 
him from receiving UNRWA assistance" .
19. At paragraph 63 the CJEU ruled that a Palestinian refugee must be regarded as having 
been forced to leave UNRWA's area of operations under such circumstances if "his 
personal safety is at serious risk and if it is impossible for that agency to guarantee that his 
living conditions in that area will be commensurate with the mission entrusted to that 
agency".
20. In C-585/16 Alheto, 25 July 2018, the CJEU underlined that the assessment of whether 
protection or assistance has ceased must be made in relation to UNRWA's area of 
operations as a whole, not just to the person's territory of habitual residence within that 
area. It ruled that protection or assistance cannot be regarded as having ceased, if the 
person is able to stay in that other part of UNRWA's area of operations "in safety, under 
dignified living conditions and without being at risk of being refouled to the territory of 
habitual residence for as long as he or she is unable to return there in safety [...]".
21. The German Federal Administrative Court has held that the "necessary living 
conditions commensurate with UNRWA's mission' include safety from persecution within 
the meaning of Article 9 QD (recast) and from serious harm within the meaning of Article 
15 QD (recast) - not just the provision by UNRWA of food, schools or healthcare, which 
would otherwise have no practical value. The court held that this is also consistent with 
the Palestinian concerned being able to remain in UNRWA's area of operations "'in safety, 
under dignified living conditions'" 2.
22. In relation to health cases and whether vulnerability can impact on an assessment of 
qualification for international protection, the CJEU has ruled in C-353/16, MP v Secretary 
of State for the Home Department, at paragraph 57 that:
"... it is for the national court to ascertain, in the light of all current and relevant 
information, in particular reports by international organisations and non­
governmental human rights organisations, whether, in the present case, MP is likely, 
if returned to his country of origin, to face a risk of being intentionally deprived of 
appropriate care for the physical and mental after-effects resulting from the torture
2 Federal Administrative Court (Germany), 2019, BVerwG 1 C 28.18, op. cit., fn. para. 27.
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he was subjected to by the authorities of that country. That will be the case, inter alia, 
if, in circumstances where, as in the main proceedings, a third country national is at 
risk of committing suicide because of the trauma resulting from the torture he was 
subjected to by the authorities of his country of origin, it is clear that those 
authorities, notwithstanding their obligation under Article 14 of the Convention 
against Torture, are not prepared to provide for his rehabilitation. There will also be 
such a risk if it is apparent that the authorities of that country have adopted a 
discriminatory policy as regards access to health care, thus making it more difficult 
for certain ethnic groups or certain groups of individuals, of which MP forms part, to 
obtain access to appropriate care for the physical and mental after-effects of the 
torture perpetrated by those authorities ."
Strasbourg case law
23. It is important, in view of the respective submissions made regarding the severe 
disability of the second appellant, to note here one particular decision of the ECtHR in the 
case of SHH v UK. This case3 concerned an Afghan applicant who had been left seriously 
injured (amputated lower right leg and penis, and serious injury to his left leg and right 
hand) during a rocket launch in Afghanistan. The applicant claimed, inter alia, that he 
would be particularly vulnerable to violence and at increased risk of further injury of 
death in the ongoing armed conflict; and because he would face living conditions and 
discrimination there which would breach Article 3 of the ECHR, because there was no one 
available to care for him in Afghanistan.
24. The ECtHR considered that to establish ill treatment under Article 3 ECHR, the 
applicant had to meet an exceptionality threshold as applied in health cases such as D v 
UK and N v United Kingdom, rather than the lower threshold applied in cases such as 
Sufi and Elmi v UK where there were predominantly man-made causes. In rejecting his 
application the majority of the court relied, inter alia, on the absence in any of the 
background country reports of reference to disabled persons being at greater risk of 
violence, ill-treatment or attacks in Afghanistan.4 The majority of the ECtHR Chamber 
took into account that even though the applicant's disability could not be described as a 
"naturally occurring illness", any future harm in relation to living conditions as a disabled 
person in Afghanistan would not emanate from deliberate ill-treatment from any party, 
but from a lack of resources and the fact that the applicant's disability did not require 
medical treatment. He had also failed to submit any evidence that he could not make 
contact with his two sisters living with their families in Afghanistan.
Article ID materials
25. In the submissions made by the parties in the course of these appeals reference has 
been made to a wide range of materials including a number of academic commentaries, 
which I have taken into account. These include: Goodwin-Gill and J McAdam, The Refugee 
in International Lazo, 3rd edn 2007 (O.U.P); M Qafisheh and V Azarov in A Zimmerman (ed)
3 SHH v United Kingdom, app.no.6036/10,29 January 2013.
4 Ibid, paras 85-86.
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The 1951 Convention and its 1967 Protocol: a Commentary; J Hathaway and M Foster, The Law 
of Refugee Status, 2nd edn.(C.U.P); and F Albanese and L Takkenberg, Palestinian Refugees in 
International Law, 2nd edn. (O.U.P), 2020 (to which I have already made reference at 
paragraph 15 above).
26. Among the materials produced or referred to in this appeal are several with particular 
importance to application of the CJEU interpretation of Article ID.
UNHCR Guidelines
27. The UNHCR GUIDELINES ON INTERNATIONAL PROTECTION No. 13: 
Applicability of Article ID of the 1951 Convention relating to the Status of Refugees to 
Palestinian Refugees, December 2017 state, inter alia, that:
"19. The application of the second paragraph of Article ID is not, however, 
unlimited. Protection under the 1951 Convention does not extend to those applicants 
who, being outside an UNRWA area of operation, refuse to (re-)avail themselves of 
the protection or assistance of UNRWA for reasons of personal convenience. That 
said, the reasons why one has left an UNRWA area of operation (for example, for 
work or study purposes, or for protection reasons) is not of itself determinative. 
What is pivotal is whether the protection or assistance of UNRWA has ceased owing 
to one or more of the "objective reasons" for leaving or preventing them from 
(re)availing themselves of UNRWA's protection or assistance as set out in paragraph 
22 below (see also paragraph 26ff on sur place claims). If a person has no objective 
reasons for not (re)availing themselves of UNRWA's protection or assistance, then 
such protection or assistance cannot be regarded or construed as having ceased 
within the meaning of the second paragraph of Article ID when a Palestinian refugee 
can safely enter the UNRWA area of operation.
24. The personal circumstances of the applicant are relevant to the determination of 
whether one of the objective reasons exists to justify the application of the second 
paragraph of Article ID. Thus, each claim must be determined on its individual 
merits, enabling consideration of factors that are specific to the applicant. These 
personal circumstances may include age, sex, gender, sexual orientation and gender 
identity, health, disability, civil status, family situation and relationships, social or 
other vulnerabilities, ethnic, cultural or religious considerations, political and social 
links and compatibility, language abilities, and any past experiences of serious harm 
and its psychological effects.
41. The assessment must consider whether, at the time the individual's claim is 
considered, he or she is unable to or unwilling to (re)avail himself or herself of the 
protection or assistance of UNRWA for a reason beyond his or her control. .."
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28. The Home Office Asylum Policy Instruction on Article ID of the Refugee Convention: 
Palestinian refugees assisted by the United Nations Relief and Works Agency (UNRWA) 
Version 2.0,09 May 2016 states at pp.9-10:
"Those previously in receipt of UNRWA assistance
A Palestinian eligible for UNRWA protection or assistance and previously 
registered with UNRWA, or (though not registered) in receipt of UNRWA 
protection or assistance, is not entitled to Convention refugee status simply by 
leaving the UNRWA areas of operation and claiming asylum elsewhere. To 
qualify automatically for refugee status under the second paragraph of Article 
ID, individuals previously assisted by UNRWA must show, to a reasonable 
degree of likelihood, that the assistance or protection they previously received 
has ceased to be accessible for reasons beyond their control or independent of 
their volition.
The phrase 'ceased for any reason' in the second paragraph of Article ID 
originally envisaged the termination of UNRWA as an agency or the 
discontinuation of its activities. However, the CJEU's ruling, in the case of 
Mostafa Abed El Karem El Kott and others (C-364/11) means that the 
cessation of UNRWA protection or assistance 'for any reason' also includes 
the situation in which a person ceased to receive assistance for a reason 
beyond their control or independent of their volition. In practice, the most 
likely situation in which the protection or assistance of UNRWA could not be 
accessed by an individual will be in one of the following circumstances:
-threats to life, physical integrity or security or freedom, or other serious 
protection related reasons, including:
- situations such as armed conflict or other situations of serious violence, 
unrest and insecurity, or events seriously disturbing public order
- more individualised threats or protection risks such as sexual and/or 
gender- based violence, human trafficking and exploitation, torture, inhuman 
or degrading treatment or punishment, severe discrimination, or arbitrary 
arrest or detention
practical, legal and/or safety barriers, including:
- being unable to access UNRWA assistance because of long-term border 
closures, road blocks or closed transport routes
- absence of documentation to travel to, or transit, or to re-enter and reside, or 
where the authorities in the receiving country refuse their re-admission or the 
renewal of their travel documents
- serious dangers such as minefields, factional fighting, shifting war fronts, 
banditry or a real risk of other forms of violence or exploitation
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29. The Home Office Country Policy and Information Note Lebanon: Palestinians Version 
1.0 June 2018 states at 2.3.4:
"2.3.4 Situations where UNRWA protection or assistance may cease beyond the 
person's control or independent of their volition may include the following 
circumstances:
• where there is a threat to life, physical integrity or security or freedom, or 
other serious protection related reasons.
• situations such as armed conflict or other situations of serious violence, 
unrest and insecurity, or events seriously disturbing public order.
• more individualised threats or protection risks such as sexual and/or 
gender-based violence, human trafficking and exploitation, torture, inhuman 
or degrading treatment or punishment, severe discrimination.
• arbitrary arrest or detention"
30. The relevant entries at 2.6 read:
"2.6 Assessment of risk Refugee camps
2.6.1 The vast majority of Palestinians reside within the 12 UNRWA refugee camps or 
in 'gatherings' - refugee communities outside of, but often alongside, the UNRWA 
refugee camps. The refugee camps are governed by Palestinian groups - the 
Palestinian Liberation Organisation and Hamas - which operate paralegal systems 
outside of the control or reach of the Lebanese authorities enforced by 'popular 
committees' and 'security committees'. The popular committees are a mechanism to 
resolve disputes between factions and individuals, as well as being a contact point 
for the Lebanese government. The security committees are used to maintain 'peace', 
with specific factions patrolling areas under their control. The Lebanese government 
does, however, regulate movement into and out of some of the camps (see 
Demography and Refugee camps).
2.6.2 Living conditions in camps are generally poor, overcrowded and, although 
generally stable, sometimes violent. However conditions vary within and between 
camps with those in the south generally poorer than those in the north, while camps 
in Beirut are more integrated into surroundings areas than those elsewhere."
State treatment
2.6.3 Palestinians in Lebanon face generally discriminatory treatment by both the 
Lebanese state and non state actors, the degree and nature of which varies between 
the 'four' different groups and individual circumstances.
2.6.4 Since Palestinians are considered 'foreigners', yet lack nationality of another 
country, they face legal restrictions in accessing state services, such as medical 
treatment and education. Palestinian refugees are also barred from employment in 
many fields and face restrictions in buying property (although the law is enforced
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'flexibly' and in practice they are, for example, able to buy land informally) (see 
Socio-economic situation). Instead, they largely depend on basic services - health, 
education and accommodation - provided by UNRWA. The assistance provided by 
UNRWA to PRS has been reduced in recent years, from about US$200 in 1975 to 
US$110 today, exacerbating their already poor socio-economic circumstances (see 
UNRWA).
2.6.5 Lebanese law does not specifically target Palestinians; however the impact of 
state restrictions has led to the Palestinian community facing socio-economic 
marginalisation: experiencing high levels of employment and poverty, and poor 
infrastructure and housing conditions generally. This is, however, partially offset by 
the support provided by UNRWA (see Socio- economic condition)."
31. This CPIN also summarises Tribunal country guidance at 2.6.7 and at 2.6.11 states that 
it is considered that this country guidance still reflects the position in Lebanon.
"2.6.7 In the case of KK, IH, HE (Palestinians - Lebanon - camps) Lebanon CG [2004] 
UKIAT 00293, heard 24 May 2004, promulgated 29 October 2004, the Immigration 
Appeal Tribunal considered whether poor living conditions in the refugee camps in 
Lebanon amounted to a breach of Article 3 of the ECHR and if there was a real risk of 
persecution under the Refugee Convention. The Tribunal summarised the country 
evidence as described by UNWRA:
'... Palestinian refugees in Lebanon... do not have social and civil rights and 
have a very limited access to the government's public health or educational 
facilities, and no access to public or social services. The majority rely entirely 
on UNRWA as the sole provider of education, health and relief and social 
services. They are considered as foreigners and prohibited by law from 
working in some seventy-two trades and professions which has led to high 
levels of unemployment among the refugee population. It seems that popular 
committees in the camps representing the refugees regularly discuss these 
problems with the Lebanese government or with the UNRWA officials. As we 
say, UNRWA provides services and administers its own installations and has 
a camp services office in each camp which residents can visit to update 
records or raise issues about services with the camp services officer who will 
refer petitions etc. to the UNRWA administration in relevant areas. It is said 
that socio-economic conditions in the camps are generally poor. There is a 
high population density and there are cramped living conditions and an 
inadequate basic infrastructure as regards matters such as roads and sewers. 
As we have noted above, some two-thirds of registered refugees live in and 
around cities and towns/ (para 83)
2.6.8 The Tribunal went on to find that 'to the extent that there is a discriminatory 
denial of third category rights in Lebanon for the Palestinians, this does not amount 
to persecution under the Refugee Convention or breach of protected human rights 
under Article 3 of the ECHR [European Convention on Human Rights].' The
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Tribunal also held that conditions in camps at that time did not amount to a breach 
of Article 3 of the ECHR (para 106).
2.6.9 In the country guidance case of MM and FH (Stateless Palestinians, KK, IH, 
HE reaffirmed), heard 29 June 2007 and promulgated on 4 March 2008, the Asylum 
and Immigration Tribunal (AIT) observed that it had 'not been presented with any 
new or significant evidence that should cast doubt on the decision reached by the 
Tribunal in KK.' (para 126).
2.6.10 It went on to find that:
i) 'The differential treatment of stateless Palestinians by the Lebanese 
authorities and the conditions in the camps does not reach the 
threshold to establish either persecution under the Geneva Convention, 
or serious harm under paragraph 339C of the Immigration Rules, or a 
breach of Articles 3 or 8 under the ECHR.
ii) 'The differential treatment of Palestinians by the Lebanese 
authorities is not by reason of race but arises from their statelessness.
iii) 'The decision in KK, IH, HE (Palestinians-Lebanon-camps) Jordan 
CG [2004] UKIAT 00293, is reaffirmed.' (Headnote)
2.6.11 The country situation since the promulgation of MM and FH in 2008 has not 
substantively changed. The available evidence considered in this note (see 
Bibliography for full list of sources) does not establish that there has been a 
significant and cogent change in the treatment of Palestinians by the government or 
in the conditions in refugee camps generally. Therefore the findings of the AIT in 
MM and FH continue to be generally applicable."
The UNRWA Disability Inclusion Guidelines
32. The materials produced by the parties refer, inter alia, to UN General Assembly 
resolutions relating to UNRWA and Palestinian refugees. UNRWA itself refers to these in 
a number of its publications. As regards disability, UNRWA itself has produced Disability 
Inclusion Guidelines.5 Their introduction states:
"The United Nations General Assembly, in setting out the UNRWA mandate, has 
repeatedly encouraged the Agency to continue to make progress towards addressing 
the needs, rights and protection of persons with disabilities in its operations, in 
accordance with the UN Convention on the Rights of Persons with Disabilities 
(CRPD).
In recognition of the particular vulnerabilities experienced by persons with 
disabilities, UNRWA has committed to ensuring that all of its programming and
5 Disability Inclusion Guidelines, UNRWA, 2017 www.unrwa.ory/sites/default/files/content
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services are inclusive and that persons with disabilities have equal opportunities to 
participate in and benefit from UNRWA assistance. In this regard, these Guidelines 
have been developed to inform the Agency's disability inclusion efforts."
33. At 1.2.4 this document refers to UNRWA's Disability Policy introduced in 2010. 
Background country materials
34. I shall not attempt to summarise the background country evidence in the appellants' 
and respondent's bundles except to note in relation to recent events up to the date of oral 
hearing that, following the resignation of Prime Minister Harari in October 2019 there 
continue to be mass protests in Tyre, Saida and Beirut and the situation is unstable. The 
Lebanese government made severe funding cuts to the budget for social affairs in 2019, 
adversely affecting services for disabled people. In July 2019 the Lebanese government 
introduced employment restrictions negatively impacting on all non-Lebanese nationals 
including UNRWA registered Palestinian refugees.
B: ESTABLISHMENT OF THE FACTS
35. For the oral hearing of this appeal the appellants' representatives produced two Lever 
Arch files containing numerous documents. There was also a supplementary appeal 
bundle containing, inter alia, a report by Peter Florrocks, Independent Social Worker, 
dated 12 December 2019. In this report, Mr Horrocks focused on the circumstances of AB 
as recounted by his mother NB and her own mental health difficulties. Mr Horrocks said 
that in Lebanon AB was immobile and housebound most of the time and subject to abuse 
from the surrounding community, to which he reacted by shouting and screaming. He 
could not walk or crawl and slumped when sitting. The lack of specialist support in his life 
in Lebanon would have lifelong consequences. However, since he has settled in at the UK 
school (a secondary school in Bolton for students with severe and profound learning 
disabilities aged 11-19 years), he has improved dramatically. In addition to his schooling, 
he has a multi-agency support network which includes a consultant orthopaedic surgeon, 
consultant spinal surgeon, consultant paediatric neurologist, a neurosurgeon, a paediatric 
psychotherapist, a consultant paediatrician, a speech and language therapist, among 
others. He remains doubly incontinent. If the family had to return, AB would regress and 
it was likely his seizures would re-start. The whole family had suffered in Lebanon 
because of AB's developmental difficulties, his siblings facing abuse, discrimination and 
ridicule from friends and neighbours. The family atmosphere was sad and depressed. If 
they had to return, the mental health of the whole family would deteriorate.
36. Mr Horrocks considered that the first appellant suffered from depression in Lebanon 
and this in turn impacted on her husband and children. Now she has improved and is 
much happier, although still on medication for depression. This has also improved her 
husband's mental health. The other children have a significant degree of emotional 
vulnerability as a result of the family history linked to AB's condition, but now, in their 
new environment, feel positive about AB rather than ashamed of him.
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37. At the oral hearing before me, the respondent produced two documents, one dated 1 
February 2017 from Medical Aid for Palestinians (MAP) and headed "Disability projects in 
Lebanon: Giving Hope to Palestinian children" describing the help given to children with 
disabilities in south Lebanon by an Early Intervention Centre based in A1 Bass camp, the 
other, also from MAP dated 20 December 2017, headed "Caring for the youngest 
generation of Palestinian refugees in Lebanon". The appellants' representatives produced 
a letter dated 6 February 2020 from the Class teacher, Carol Tennant, at AB's High School. 
Her letter describes the transformation in AB's condition from when he first came to the 
school to the present, he now being happy and settled. She states that AB has made 
excellent progress cognitively, physically and socially because of the facilities and 
specialist services that he has been able to access on a daily basis and observes that "any 
changes would be devastating to his educational, health and social well-being."
Oral Evidence
38. The first appellant, NB, gave evidence. She confirmed that the contents of her June 
2019 witness statement was true. Asked why she and her family had flown from Lebanon 
to the U.S., she said that human traffickers has suggested this to her husband. The purpose 
was to help her son, AB, given his medical plight. She did not know that they were going 
to the UK until her husband informed her when they were in the U.S. that this was the 
advice given to him by agents. Asked if she knew that her husband had produced a false 
summons for the purposes of his own asylum claim, she said he did not inform her. He 
knew about her mental health problems.
39. Asked about her efforts to find educational help for AB when living in A1 Bass refugee 
camp in southern Lebanon, she said that there were no facilities inside the camp. There 
was a school half an hour's journey away by car but it did not take Palestinians, only 
Lebanese. She had first tried to get AB into a special needs school when he was four or five 
years old, but not even a private school they had tried was prepared to take him once they 
learnt about his incontinence.
40. Asked where she had gone for help within the refugee camp, she said the people there 
were concerned with other issues, not family problems or disability. UNRWA had taken 
responsibility for educating her other children. But they only help normal children.
41. Asked whether AB had received abuse and harassment because of his disability within 
the camp, she said yes but also outside.
42. Mr Main asked whether she knew of the existence of the MAP Early Intervention 
Centre at A1 Bass camp. She said she had heard of it. She and her husband had sought 
help from the charity called A1 Soumad. You could only get help from one charity at a 
time. AB got help from a physio via Soumad two days a week either free or for a small 
amount of money. Asked why the MAP Early Intervention Centre could not help AB so 
that he could eventually work, she said there was no prospect of him ever working. He 
cannot even walk. He does not have the capacity. He could never stay quiet.
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43. I next heard evidence from Mr KB. With reference to his witness statements of June 
2019 and 22 January 2020, he accepted in reply to Mr Main that he had lied to the Home 
Office and the Tribunal about risk from Hezbollah. Asked if he had lied in describing 
himself as a businessman, he said he had been an entrepreneur earning around US$600 a 
month, most recently as a painter and decorator. He accepted that he had paid an agent 
US$10,000 to help leave the country. Most people in the camp were able to raise money 
through small businesses or borrowing.
44. Asked why he had quit Lebanon, he said his agent had been able to get a visa to the 
U.S.. That was the only route out. Once he got to the U.S., the key thing was to find a 
better place to get treatment for his son.
45. Asked by Mr Main if he had heard of the MAP Early Intervention Centre in A1 Bass 
camp, he said yes. He had seen it, it was small with two or three rooms. They could not 
help with the specialist nature of his son's problems. Asked if they had ever assessed his 
son as unsuitable for their help, he said no; they helped little children, not children with 
complicated needs needing intensive care. He did not think they could help children with 
cerebral palsy. Mr Main put to him that the MAP article referred to children attending this 
centre with cerebral palsy. He said he accepted he had not produced any evidence to 
show that his son had been refused help by this centre or any other source.
46. Asked by me about what he had said in paragraph 84 of his witness statement about 
the private school (the Mosan Centre in Hosh district south Tyre) in saying they could 
assist his son even though Palestinian on a privately funded basis, he said that that was 
the case but once they were told that his son was using nappies, they had said no.
Submissions at the oral hearing
47. Mr Main for the respondent said he relied on the refusal decision. He asked that I treat 
the previous decision by Judge Traynor as a starting point pursuant to Devaseelan [2003 
Imm AR 1] principles. Mr KB had since admitted that he had lied to the Home Office and 
the Tribunal and had obtained fraudulent documents. Despite the first appellant's oral 
evidence, I should find it not credible that she was unaware of his fraudulent use of 
documents. She had been a dependent in her husband's appeal. Judge Traynor had found 
Mr KB totally lacking in credibility.
48. Mr Main asked that I find significant that despite no mention of it in their own witness 
statements, both the husband and wife had admitted after questioning that they were 
aware of the Early Intervention Centre operating in A1 Bass camp. They had provided no 
documentary evidence to show that this centre had said it could not help. The appellants 
could only avoid exclusion under Article ID of the Refugee Convention if able to show 
that there were circumstances beyond their control compelling them to no longer avail 
themselves of the assistance and protection of UNRWA.
49. As regards Article 1A(2) of the Refugee Convention, Mr Main said the respondent 
accepted that the appellant and her family were able to show a Refugee Convention
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reason, namely nationality, but not that they were at real risk of persecution. The severe 
disability of AB was a relevant consideration but the decision of the Upper Tribunal in 
JA(child-risk of persecution) Nigeria [2016] UKUT 00560 was of little assistance given the 
different facts of the appellant's case: in that case the (albino) child he had only ever lived 
in the UK and the material facts were quite different. The appellants had failed to establish 
their case that there was a lack of support and facilities for AB.
50. Mr Main submitted that it was not enough for the appellants to show that there were 
higher standards of health and education facilities in the UK. Whilst the respondent 
accepted that AB would be subject to discrimination by virtue of his disability as a 
stateless Palestinian refugee, this did not amount to the required level of persecution.
51. As regards Articles 2 and 3 of the ECHR, Mr Main submitted that the previous 
findings of the First tier Tribunal judge should still hold. There were cogent reasons for 
concluding that the appellants had failed to show that AB met the article 3 thresholds as 
defined in N v SSHD [2005] UKHL 31. As regards Article 8, the appellants could not 
succeed under the immigration rules and had failed to show very compelling 
circumstances outside the rules. That was so even taking into account the best interest of 
AB and the other children. The appellants and family would be returned as a family unit.
52. Ms Capel submitted that Mr KB's acceptance that he had fabricated part of his asylum 
claim did not mean that he was going back on his evidence as regards his employment of 
Palestinian and Syrian refugees. She submitted that I should reject Mr Main's submission 
that the first appellant was complicit in the lies told by Mr KB in relation to the arrest 
warrant (summons) and risk from Hezbollah. The first appellant did not attend her 
husband's First-tier Tribunal hearing. It was Mr KB who had handled the appeal. Her 
claim that she had poor mental health act made credible that he would not have told her of 
such matters.
53. As regards the respondent's apparent position that AB should be considered as a child 
who had received assistance whilst still in Lebanon, Ms Capel submitted that that was not 
a point taken previously. In any event, it was inconsistent with the evidence of Peter 
Horrocks who considered that the significant improvement in AB's medical circumstances 
indicated that he had not been receiving educational help in Lebanon. Furthermore, the 
background country information indicated that only 8% of disabled persons received 
assistance in Lebanon. Whilst there were a number of NGOs operating in southern 
Lebanon including in A1 Bass camp, there were clearly huge unmet needs and heavy 
demands on their services and it was reasonable to assume that AB had never received 
assistance hitherto. There was no evidence of UNRWA assistance to severely disabled 
children. It was also unclear from the MAP articles how substantial the care given to 
disabled children was: was it five days a week; was it full-time during the day? On Mr 
KB's and the first appellant's account, their son had essentially received physio twice a 
week from another charity and that was all that the family had been able to access. She 
asked that I find the evidence of the first appellant and her husband in relation to the 
situation of AB when they lived in Lebanon to be entirely truthful.
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54. As regards the Tribunal country guidance on Lebanon, she asked me to take account of 
the fact that the Upper Tribunal cases, KK, IH, HE (Palestinians - Lebanon - camps) 
Lebanon CG [2004] UKIAT 00293 (KK et al) and MM and FH (Stateless Palestinians, KK, 
IH, HE reaffirmed) [2008] UK AIT 00014 (MM and FH) were now over 15 years and 12 
years old and that there had been a significant deterioration in country conditions since. 
Further, the appellants' case, unlike KK et al and MM and FH cases, concerns a severely 
disabled child. The appellants' case was based on cumulative discriminations.
55. In relation to the weight that I should attach to the decision of Judge Traynor, Ms Capel 
submitted that it was important to know that he had not dealt with the case of AB under 
the Refugee Convention. He had not engaged with the issue of whether or not there had 
been discriminatory denial of education and whether that amounted to a persecution.
56. Furthermore, Ms Capel pointed out, Judge Traynor had applied the N v SSHD 
threshold in relation to Article 3 whereas the appellants' was a case with a social 
dimension as well as a medical dimension. It was contrary to basic human rights to expect 
a child in the situation of AB to be home tutored.
57. She submitted that the respondent had already gone a considerable way to 
establishing the appellants' case by accepting that there was a Refugee Convention reason 
and also that there was discrimination against disabled Palestinians in Lebanon.
58. As regards Article ID, the interpretation by the CJEU in Mostafa Abed El Karem El 
Kott and others (C-364/11) (hereafter El Kott) left open that severe discrimination could 
constitute a reason for been forced to leave the UNRWA territory. On the facts of the 
appellants' case, there had been severe discrimination.
59. Ms Capel submitted that both in relation to Article ID and in relation to Article 1A(2) 
(if in play), it was important to consider the specific vulnerability of children when it came 
to assessment of whether there was persecutory harm. She referred, inter alia, to ST (Sri 
Lanka) [2013] UKUT 00292 (IAC), the UN Convention on the Rights of the Child (CRC) 
and the Convention on the Rights of Persons with Disabilities (CRPD). Applying these 
instruments, she submitted, discriminatory denial of education coupled with denial of 
healthcare to a disabled person could result in serious harm to a child. The case of JA was 
pertinent in establishing that denial of education could be persecutory. Ms Capel 
submitted that it would be wrong in this case to apply the N v SSHD threshold because 
the discrimination arose from the conduct of the Lebanese state and so the different(lower) 
threshold identified by the ECtHR in Sufi and Elmi (2012) 54 EHRR 9 and several other 
cases should have been applied.
60. Ms Capel pointed out that the situation in Lebanon had deteriorated in recent years 
and this was an important backdrop to establishing whether the threshold of persecution 
or ill treatment was reached in relation to a vulnerable child. The evidence regarding AB 
was that there had been complete absence of education and further there had been abuse 
and hostility directed towards both him and other members of the family by virtue of his 
severe disability. This had caused him to be isolated. There was a discriminatory denial of
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the right to education. There were some legal protections in Lebanon for Palestinians, but 
these were very limited when compared with those available to citizens. It was entirely 
credible that the husband and wife had been unable to access any public education for AB 
and that they had not been able to obtain private education for him either.
61. If the family was required to return, she submitted, it would jeopardise the mental 
health of the entire family. There was limited access to tertiary care. The living conditions 
for Palestinians in refugee camps were appalling with untreated sewage and non-potable 
water among other problems. The circumstances of a refugee camp family having a son 
with severe disabilities had to be considered cumulatively; and when this was done they 
amounted to severe discrimination which was persecutory. Mr KB had only managed to 
raise money to leave Lebanon by sale of possessions. He does not have the means to 
provide for AB. The 2019 changes in Lebanese law applying employment restrictions to 
Palestinians meant Mr KB would not be able to operate his business as he had before. 
There were multiple breaches of the human rights of the child involved in this case. The 
parents had left Lebanon because of objective reasons outside their control. It was 
recognised by the Upper Tribunal that severe discrimination could constitute persecution. 
That was all more possible in the case of a child. The mental health of the mother was also 
adversely impacted by the situation of AB; the years of looking after him had taken their 
toll. Accordingly, the appellant and her family qualify for the inclusion (ipso facto) 
elements of Article ID and also qualify (if needed) under Article 1A(2) of the Refugee 
Convention because they were at real risk of persecution for a Convention reason.
62. As regards Article 8 ECHR, Ms Capel submitted that it was the burden of Mr Horrock's 
report that AB's physical and moral integrity was in peril and that the family's 
circumstances were very compelling. The Horrocks's report indicated that the failure of 
the Lebanese state to provide education and health support for AB had caused him 
significant developmental harm and this was caused by discriminatory denial. Since 
coming to the UK, there had been a real change in AB's physical and social well being and 
his interaction with his siblings was now greatly improved. The mental health of the 
mother and the father were also both improved. All that would be jeopardised if they 
were required to return. The comments by Mr Horrocks and indeed by the headteacher's 
letter support the credibility of the first appellant's case that A had never received any 
educational or other support in Lebanon.
63. Ms Capel contended that the best interests of the child were an extremely important 
consideration in this case. There were not just the circumstances of AB but the other 
children as well and their predicament was closely tied to his. As regards the MAP 
evidence, Ms Capel said that in light of the wider background evidence it was credible 
that this organisation had not been able to assist the appellant, which is why they had 
gone to another charity although that other charity had only been able to provide very 
limited help through physiotherapy.
Further evidence regarding the MAP Early Intervention Centre, Al-Bass camp.
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64. Having heard evidence from the first appellant and her husband and then submissions 
from both parties, I stated that I would reserve my decision but would make a direction 
that the parties use best endeavours to obtain from the MAP Early Intervention Centre in 
El Bass camp an answer to the following question: "Would their service be open to a 
Palestinian who was aged between 13 and 14 and had severe disability, including 
hydrocephalus (with a shunt), cerebral palsy and severe learning difficulties?" Both 
representatives undertook to liaise to ensure that an approach was made using the above- 
mentioned text.
65. I directed that the parties were to submit within specified time limits the response of 
this NGO, together with any further submissions regarding the significance of the 
response received. I emphasised to the parties that the contents of any further submissions 
regarding the significance of the response, if one was received, should be very brief and 
strictly limited to the information provided and should not amount to re-argumentation of 
the submissions already made by both parties.
66. In response, the appellants' representatives produced an email from a Mr Hisham El- 
Ali (hereafter HEA) dated 26 February stating that the Early Intervention Unit in El Bass 
camp:
"provides services to Palestinians with disabilities with special focus on those aged 
between 0 and 6. As for children above this age, the focus is much less, but it is 
possible to provide the basic services with a smaller number of sessions with 
different specialisations and for periods that are not typical for them, especially those 
with severe disabilities. Given that the centre is under a local NGO, it is considered to 
have limited capabilities and cannot serve large numbers of children as it's linked to 
the necessary funding which is renewed annually for sustainability which also means 
the possibility of suspending services at any time."
67. On 27 February 2020 the appellants' representatives made further submissions. In these 
Ms Capel submitted that the response makes clear that the Early Intervention Centre 
primarily provides for children aged 0-6 and that the focus on children over 6 is "much 
less". For them the Centre is only able to provide basic services and the frequency and 
duration of sessions "are not typical for them, especially those with severe disabilities". 
She said it was accepted by the appellants that "limited assistance is provided to disabled 
children in the camp by non-governmental organisations, whose services are 
oversubscribed and difficult to access". However, what AB was able to access in terms of 
assistance was extremely limited, ineffective and heavily subject to resource constraints. 
"Crucially, she submitted, "nothing in HEA's response indicates that the Early 
Intervention Centre is involved in the provision of education to disabled children. Hence 
the response supports the appellants' case on Article ID, Article 1A(2), Article 3 and 
Article 8".
68. On 3 March 2020 Mr Main sent submissions in which he stated that "[t]he generic 
email account, the lack of reference in the signature on the email to the El Bass camp or 
Early Intervention Centre, the lack of response in regard to role and job title as posed in
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the originating email and the reference to the 'centre is under a local NGO' all place 
doubts on whether [he] is able to provide substantive answers to the questions posed.... ".
69. Mr Main also submitted that in any event the accompanying submissions from the 
appellants' representatives "cherry picked" from HEA's email whose substance was that 
this centre supports basic services for children above the age of 6 years although with less 
sessions and can cater for those with severe disabilities. Contrary to the evidence of the 
first appellant and her husband, there were clearly two services locally, the Early 
Intervention Centre and the Sour Community Disability Project, both within the Al Bass 
camp. He wrote that "[t]he lack of any reference to these organisations within their 
evidence, alongside their ability to manufacture a politically motivated asylum claim with 
false documentation shows that their evidence should not be relied upon". It was wholly 
inappropriate, he wrote, to seek to criticise HEA about his lack of comment on the 
provision of education to disabled children when he had clearly not been asked.
70. Mr Main submitted that again, in any event, the articles written by MAP together with 
this email showed that there was support on the ground and yet there was no evidence 
that either Mr KB or the first appellant had attempted to contact this centre or the Sour 
Community Disability Project (SCDP), which according to the MAP article dated 1 
February 2017 was "close by" to the Early Intervention Unit.
71. In further points, Mr Main reiterated previous submissions raised about the applicable 
law.
72. In an email of 4 March, the appellants' representatives wrote seeking to clarify the 
relationship between HEA, the Early Intervention Centre, the SCPD and the PWHO and 
MAP.
73. They attached an article by MAP dated 11 April 2019 that reported on a "special 
educator" who "works ...at the Sour Community Disability Centre (SCDP)'s Early 
Intervention Unit, which is run by the Palestinian Women's Humanitarian Organisation 
(PWHO) in Al Buss refugee camp and supported by Medical Aid for Palestinians (MAP)." 
Their email also pointed out that HEA's signature confirmed that he is the "Disability 
Program Coordinator" at SCDP.
Findings relating to the appellants
74. Whilst there are formally only two appellants in this case, all but one other member of 
the family are dependants. It is common ground, that the outcome of the appeals turns 
principally on the situation of the second appellant, AB. If it can be shown that the reason 
why protection or assistance from UNRWA ceased was for reasons unconnected with his 
will, then the appellants stand to benefit from the inclusionary ("ipso facto") provisions of 
Article ID/Article 12(l)(a) QD. Separately, they would be entitled to succeed in their 
appeals if able to show that they would face on return either persecutory or serious harm 
or a violation of Articles 3 or 8 of ECHR.
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75. Whilst the respondent's refusal decision gives no conclusions on the matter, Mr Main 
did not dispute that the appellants' home area is as claimed, namely Al Bass refugee camp 
in Sour, in the south of Lebanon.
76. The respondent accepts that the appellants and the other family members are 
UNRWA-registered stateless Palestinian refugees who have all in the past (save for the 
youngest) received protection or assistance from UNRWA. In relation to Article ID of the 
Refugee Convention/Article 12(1) of the Qualification Directive, the respondent, by 
reference to Home Office policy, accepts that the first appellant and her family would be 
entitled to succeed if able to show that they had ceased to obtain protection or assistance 
from UNRWA because they were forced to leave due to circumstances beyond their 
control.
The Early Intervention Centre, Al Bass camp
77.1 deal first with the further evidence that I directed the parties to provide relating to the 
Early Intervention Centre. The question sent regarding this was "Is the Early Intervention 
Centre in Al-Bass refugee camp able to assist a 13-14 year old boy with severe disabilities 
including hydrocephalus, cerebral palsy and severe learning difficulties?" In light of the 
further email dated 4 March 2020 from the appellants' representatives and the attached 
article dated 11 April from MAP, I am satisfied that HEA was in a position to respond on 
behalf of the Early Intervention Centre to the question asked of it in my directions. It is 
clear that the Early Intervention Centre (or Unit) is part of the Sour Community Disability 
Project (SCDP) which in turn is run by the Palestinian Women's Humanitarian 
Organisation and funded by MAP and that HEA is the Disability Program Co-ordinator at 
the SCDP.
78. In terms of the contents of HEA's email, whilst it makes clear that the Early 
Intervention Centre's work is mainly with children aged up to 6 years old it also makes 
clear that it can also help older children - at least with basic services - although any such 
help is subject to limited capabilities.
79. It is also clear from HEA's reply and the MAP articles relating to it that both the SCDP 
and the Early Intervention Centre are situated within the Al Bass camp.
80. In the ordinary course of events, I would now proceed to make findings on both the 
general circumstances of UNRWA-registered stateless Palestinians in southern Lebanon 
and the particular circumstances of the appellants. However, in view of my conclusion set 
out below that it is necessary to adjourn this case in order to make a preliminary reference 
to the CJEU, it would be inappropriate for me to attempt findings relating to general 
circumstances at this stage. In respect of whether persons qualify for international 
protection either under Article 1A(2) of the Refugee Convention or under the 
humanitarian (subsidiary ) protection regime also established by the QD, I am required to 
assess risk as at the date of hearing. As I am adjourning the case, I cannot prejudge what 
assessment would need to be made at the resumed hearing. In respect of the Article ID 
inclusionary clause, it is at least possible to understand it as involving a purely historical
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exercise of asking whether at the time the appellants left the UNRWA territories (in 
September 2015) they had ceased to receive the protection and assistance of UNRWA for a 
valid reason, but even if it is a purely historic exercise, I still cannot undertake it now 
because of two other points of law which I consider to be unclear: see paragraphs 92-95 
below). And if it is not a purely historic exercise, there remains a need to make further 
findings of fact, once the law has been clarified.
81. However, I am able to make certain findings on the appellants' particular 
circumstances up to this point in time.
82. Turning then to the appellants' particular circumstances up to the present, I shall deal 
first with the independent social work report of Peter Horrocks.
The Horrocks report
83. I find this be a comprehensive report demonstrating a careful consideration of the 
family's welfare history and circumstances, both in Lebanon and the UK. Mr Main did not 
seek to challenge its methodology or contents. To a significant extent, Mr Horrocks bases 
his report on the first appellant's account to him, but, as I explain below, in relation to the 
circumstances of AB, with one significant caveat, I found that credible. There are no 
additional medical reports on the first appellant, but I attach significant weight to Mr 
Horrocks's assessment of her psychological problems - depression and suicidal ideation - 
problems arising from her having to deal with AB virtually on a 24 hour a day basis for 13 
years. I also attach significant weight to his assessment that this had led to a deterioration 
in her relationship with her husband. His analysis of the circumstances of the other 
siblings when living in Lebanon facing abuse and ridicule on account of their disabled 
siblings, accords with the background country evidence. In broad terms, I find I can attach 
significant weight to his report. I was also able to observe the second appellant during the 
hearing and it is apparent that he is severely disabled and requires intensive care and 
supervision.
Mr KB
84. Judge Traynor found Mr KB to be a witness wholly lacking in credibility. However, the 
focus of the asylum claim in his appeal before Judge Traynor concerned his claim that he 
had been targeted by Hezbollah for employing Palestinians and Syrians illegally. The 
judge found that claim wholly lacking in credibility and found that the summons he had 
produced was a false document and that he had deliberately destroyed or withheld his 
passport and given an untruthful account of the circumstances under which he and his 
family had left Lebanon. Mr KB in his witness statements for this hearing has accepted 
that he lied in relation to all these matters. He insists, however, that he did not lie about 
employing Palestinians to help him in his painting and decorating business or about the 
circumstances of AB.
85. Like the first appellant, Mr KB continues to insist that AB was never able to access 
education in Lebanon and that the medical support and treatment he received there was
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limited to surgical interventions save for two physiotherapy sessions a week arranged 
through one of the charities operating in the camp (Al Soumad).
86. Judge Traynor's adverse findings of fact on Mr KB's claimed difficulties with 
Hezbollah must clearly stand (Mr KB himself has conceded they were untrue). The finding 
that AB had received "appropriate" medical support and treatment in Lebanon over a 
number of years (see paragraphs 46, 53 and 54) must also stand, at least inasmuch as the 
first appellant and her husband themselves do not dispute that he did receive medical 
help. However, beyond that, the judge's findings on the precise circumstances of AB and 
the "appropriateness" of the medical support and treatment in Lebanon are of more 
limited assistance.
87. As regards the judge's findings on AB's education, Mr Main submitted that they 
amounted to a finding that he had received education in Lebanon. In my judgement, that 
reads too much into Judge Traynor's decision. His findings in relation to education were 
confined to the situation he considered would face AB on return: e.g. he referred to the 
following hypothetical situation: "...if the Appellant wishes for his son to gain the benefit 
of an education targeted to his specific needs, then he has not advanced any reason why 
this cannot be made available in Lebanon" (paragraph 54). On the issue of whether AB 
had received education whilst in Lebanon, therefore, I consider it would be unsafe to seek 
to infer anything from the judge's findings, which were not focussed on this issue. In any 
event, on the issue of whether the second appellant would receive educational support on 
return, that (at least in relation to the claim based on Article 1A(2) of the Refugee 
Convention and also under the QD provisions on subsidiary protection and Article 3 and 8 
of the ECHR) is essentially a matter of forward-looking, not backward-looking, assessment 
and depends in large part on objective facts derivable from background country evidence.
88. As regards KB's evidence before me, I consider that he was evasive in relation to the 
issue of whether he knew about and/or had approached the MAP Early Intervention 
Centre for help. In his witness statements, he had made no mention of this centre, despite 
seeking to particularise all the attempts he had made to get educational help for AB. From 
the MAP documentation, the centre clearly has helped severely disabled Palestinian 
children, including two with cerebral palsy. From this documentation it clearly has 
education as one of its objectives: the 11 April 2019 MAP article on which the appellants' 
representatives relied, refer to "Lara, a Special Educator" who worked in this Centre. In 
his evidence before me, even allowing for working through the prism of translation, Mr 
KB accepted he had "seen" the Early Intervention Centre but failed to give direct answers 
as to whether he had sought help from it. His answers focussed on saying that the centre 
could not cater for his son because (variously) it did not have the capacity because of the 
many Palestinians in southern Lebanon; it was too small; and it only helped young 
children.
The first appellant
89. I was asked by Ms Capel to treat the first appellant as a vulnerable witness. Whilst 
there is no medical report on her mental health, she was assessed by Peter Horrocks (to
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whose report I have attached significant weight) as suffering from depression. She was 
also considered by him to have struggled to cope with the demands of looking after AB 
alongside her other family responsibilities. I am satisfied that I should treat her as a 
vulnerable witness under the Joint Presidential Guidance Note, 2010. Ms Capel's request 
that I treat her so was not opposed by Mr Main.
90. Mr Main sought to argue that it lacked credibility that the first appellant was unaware 
of Mr KB's practising of deceit in respect of his original asylum claim.
91. In her evidence before me (even making allowances for her as a vulnerable witness) I 
found the first appellant even more evasive than Mr KB on the issue of whether the family 
had sought help from the MAP Early Intervention Centre. Initially she said that she had 
asked for help from people inside the camp concerned with such matters and received 
none and that there were no facilities for AB inside the camp. Then, when confronted by 
Mr Main with evidence of the existence of the MAP Early Learning Centre inside Al Bass 
camp, she sought to say that this centre could not help with him working as there was no 
prospect of him ever doing so.
92. Given, however, that she was not a witness in Mr KB's appeal - and had not been 
interviewed or made any statement in relation to his appeal - and keeping in mind that 
she is a vulnerable witness, I am prepared to accept that either she did not know, as she 
has consistently claimed, or if she did, only in the vaguest terms, about Mr KB's use of 
fraudulent documents. The core of her evidence was not concerned with the circumstances 
of Mr KB's asylum claim but with her and her family's difficulties arising from having to 
care for AB.
AB's access to education and assistance in Lebanon
93. This brings me to the issue of whether AB did in fact receive education whilst in 
Lebanon or could have. As already noted, I found both the first appellant and Mr KB 
evasive on the issue of approaches to the Early Intervention Centre. I agree with Mr Main 
that it counts against the first appellant's claim that neither she nor her husband have 
produced any documentary evidence to show that AB had been denied educational help 
from this centre or any other organisation catering for disabled children. In relation to 
public schools, I agree with Ms Capel that no such evidence was necessary since there is 
virtually no suggestion in the evidence that UNRWA schools cater for severely disabled 
children and indeed the MAP centre itself describes its role as to fill a gap. In relation to 
private schools, however, it would surely have been open to the appellants to obtain a 
letter or email from the Mosan Centre confirming that they had been approached by Mr 
KB about taking in his son but had decided they could not once they learned that he was 
incontinent. That said, he clearly did not go on to receive assistance from this school. As 
matters stand presently, I consider that the appellants have not established that the family 
was unable for good reasons to access sufficient education and assistance from NGOs such 
as the Early Intervention Centre.
Why no further findings are made at this stage
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94. As already noted, Ms Capel advances the appellants' case on two fronts. She submits 
that they are entitled to succeed under the inclusionary provision of the exclusion clause in 
Article ID of the Refugee Convention/Article 12(l)(a)QD and also under the 
corresponding provisions of Article 1A(2) of the Refugee Convention. For reasons already 
foreshadowed (relating to the need to undertake an assessment as at the date of hearing), 
I do not consider it would be appropriate to seek to make findings on either Article 
ID/Article 12(l)(a) or refugee status under Article 1A(2) as my provisional view is that 
this case should be adjourned for the purposes of making a preliminary reference. For the 
same reason I do not consider it appropriate to seek to make findings on the question of 
humanitarian (subsidiary) protection or the appellants' circumstances under Articles 3 or 8 
of the ECHR.
C: RELEVANT LEGAL ISSUES
95. It is necessary, therefore, to turn to the reason for my provisional decision to adjourn, 
which relates solely to Article ID of the Refugee Convention / Article 12(l)(a) of the QD.
96. As the CJEU emphasised in paragraph 76 of El Kott, "a person who is ipso facto entitled 
to the benefits of Directive 2004/83 is not necessarily required to show that he has a well- 
founded fear of being persecuted within the meaning of Article 2(c) of the directive". As 
underlined more recently by the Advocate General Mengozzi in his Opinion of 17 May 
2018 in Alheto, at paragraph 399 and 45:
"29. The position of Palestinians assisted by UNRWA who submit an application for 
asylum in a Member State is not comparable to that of other asylum applicants, who 
must prove that they have a well-founded fear of persecution in order to gain 
recognition of the status of 'refugee' within the meaning of Article 2(d) of Directive 
2011/95. Their applications cannot therefore be examined, at least not initially, by 
reference to that provision, which reproduces Article 1A(2) of the Geneva 
Convention, but must be examined in the light of the criteria defined in 
Article 12(l)(a) of Directive 2011/95.
45. In this context, in order to obtain recognition as a refugee, it will not be 
necessary for the asylum applicant to prove a fear of persecution, within the meaning 
of Article 2(d) of Directive 2011/95, although proof of such a fear may bring him 
fully within the scope of the inclusion clause in the second sentence of Article 12(l)(a) 
of the directive. It will, for example, be sufficient for him to prove that there has been 
a hiatus in the protection or assistance offered by UNRWA, or that a situation of 
armed conflict prevails, or, more generally, that there is violence and a lack of 
security such as to render UNRWA's protection or assistance ineffective or inexistent, 
albeit that such situations, when relied on by an applicant who does not fall within 
the scope of Article 12(l)(a) of Directive 2011/95 are more likely to justify the grant of 
subsidiary protection status than the grant of refugee status."
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97. It is not in dispute that the appellants fall within the personal scope of Article ID in 
that they have in the past received protection or assistance from UNRWA. Accordingly, 
they are excluded from refugee protection unless they can establish that they ceased to 
obtain the protection or assistance of UNRWA for a reason beyond their control.
98. Central to Ms Capel's submissions in relation to Article ID is the contention that the 
appellants are entitled to benefit from the "ipso facto" provision because their departure 
from Lebanon was justified by objective reasons beyond their control and independent of 
their volition, namely because "UNRWA is not able to fulfil the conditions of its mandate 
in respect of severely disabled children" and because AB faced (and still faces) "severe 
discrimination" on the grounds of his disability. Mr Main contends that the appellants 
cannot succeed on this basis because AB received sufficient assistance with his disability 
when he lived in Lebanon and would on return.
99. In seeking to decide the Article ID issues, I am confronted with several legal 
difficulties.
The temporal issue
101. The first concerns the temporal issue. Both parties were in agreement with me that it 
is one on which a question should be referred to the CJEU. There is a lack of clarity as to 
whether the test concerned is a purely historic (or ex tunc) one of assessing the 
circumstances which have forced the person concerned to leave the UNRWA area of 
operations when he or she did or is a test that additionally or alternatively involves an ex 
nunc assessment. The wording of the second sentence of Article 12(l)(a) QD (and the 
second subparagraph of Article ID), is in the past tense ('When such protection or 
assistance has ceased for any reason...'). That suggests a purely historic test. It is possible 
to read the CJEU in El Kott as endorsing such an approach. For example, in paragraph 59 
the position taken would appear to be that to establish cessation of protection or 
assistance, all that an applicant has to be show is that he or she has "been forced to leave 
for reasons unconnected with that person's will", wording which seemingly focusses on 
the time of departure.
102. That would also appear to be the thrust of the multiple uses of the past tense 
(emphasis added) in the final sentence of paragraph 65 of El Kott. Paragraph 65 reads in 
full:
"In the light of the foregoing considerations, the answer to Question 2 is that the 
second sentence of Article 12(l)(a) of Directive 2004/83 must be interpreted as 
meaning that the cessation of protection or assistance from organs or agencies of the 
United Nations other than the HCR 'for any reason' includes the situation in which a 
person who, after actually availing himself of such protection or assistance, ceases to 
receive it for a reason beyond his control and independent of his volition. It is for the 
competent national authorities of the Member State responsible for examining the 
asylum application made by such a person to ascertain, by carrying out an
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assessment of the application on an individual basis, whether that person xoas forced 
to leave the area of operations of such an organ or agency, which will be the case where 
that person's personal safety was at serious risk and it was impossible for that organ 
or agency to guarantee that his living conditions in that area would be commensurate 
with the mission entrusted to that organ or agency."
103. There are similar passages indicating a backward-looking assessment in paragraphs 
61, 63 and 64.
104. In terms of object and purpose, it might also be said that to treat assessment of 
cessation as a purely historic matter would comport best with the understanding that 
Palestinian refugees are already refugees. As such, it should suffice for them to simply 
establish cessation for objective reasons at the time of leaving without also having to show 
something relating to their present, post-departure, circumstances.
105. However, it is also possible to construe Article 12(l)(a) as interpreted by the CJEU in 
El Kott as applying an ex nunc test. It is possibly significant that in the first sentence of 
paragraph 65 of El Kott the CJEU uses the present tense "ceases" ("...includes the situation 
in which a person who, after actually availing himself of such protection or assistance, 
ceases to receive it for a reason beyond his control and independent of his 
volition."(emphasis added)). There are similar uses of the present tense in paragraphs 61, 
63 and 64 (especially its reference to Article 4(3) which requires assessment as at the date 
of decision).
106. In terms of object and purpose, it is possible to argue that not to apply an ex nunc test 
would create a protection gap since it would mean that persons who had left the area of 
operations voluntarily but would presently face denial of protection or assistance would 
face exclusion. In her Opinion in El Kott, Advocate General Sharpston clearly considered 
that such persons could fall within Article 12(l)(a)'s inclusionary provision. She observed 
that:
"... it is quite conceivable, as has been pointed out to the Court, that a person in 
receipt of UNRWA assistance may voluntarily leave the UNRWA area on a 
temporary basis - for example, in order to visit a relative elsewhere - while fully 
intending to return and genuinely believing that he will be able to do so, but finds 
that in fact his re-entry into the territory in which he received assistance is blocked. 
Such a person should, in my view, be considered as prevented from receiving 
UNRWA assistance for a reason beyond his control or independent of his volition."
Her position is consistent with the aforementioned UNHCR Guidelines at paragraph 22(g) 
to (i). (It might also be argued that an ex nunc requirement is implicit in the structure of the 
QD in that the cessation clauses are framed at Article 11(1) so as to apply to all refugees 
and Article ll(l)(e)-(f) require refugee status to cease if there is no longer a well-founded 
fear of persecution: see Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Aydin 
Salahadin Abdulla and Others, paragraphs 66, 69.)
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107. The main academic studies of Article ID reflect a similar lack of clarity as to whether 
the test is a purely historic one or also an ex nunc test or some admixture.
108. The significant of this issue for the instant case will be evident. If the relevant 
provision in the second sentence of Article 12(1) (a) must be read in binary fashion as either 
an ex tunc or an ex nunc test, then depending on which is the correct reading, the issue of 
cessation of the appellants' protection or assistance must be assessed either by reference to 
September 2015 (the date the appellants left Lebanon) or as at the date of the next hearing.
109. There is also the issue of how, if it is not a question of one or the other but a mixture 
of both, they must be understood to intertwine. If it were considered that the relevant 
provision categorically required both an ex tunc test and an ex nunc test, that could be seen 
to result in Palestinian refugees being treated more harshly than Article 1A(2) refugees, 
the latter who only need to establish an ex nunc test: see Joined Cases C-199/12 to 
C-201/12, X,Y and Z, paragraphs 63 and 72. Alternatively, the two might be combined in 
a less onerous way. One possible way was advanced by Mr Hussain in written further 
submissions in the following terms:
"It may be that the two approaches that run together in El Kott can be reconciled by 
an analogical application of the cessation clause in the Directive (Article 1C is 
expressed only to apply to Article 1 A; Article 11 Qualification Directive is not so 
limited in its application: see El Kott at §77). Thus if an applicant can show a 
qualifying reason as to why he left UNRWA area of operations, the evidential 
burden falls on the State to show that protection and assistance is now available."
110. This seems to me a further point on which clarification is needed.
The issue of whether the discrimination must be intentionally inflicted by UNRWA
111. The second issue that is unclear concerns the quality of the protection or assistance 
afforded by UNRWA.
112. Ms Capel has submitted that in southern Lebanon the Lebanese authorities discriminate 
against stateless Palestinians in various areas of life, including education, employment, 
social services and treatment of the disabled. The respondent's position is broadly similar 
although Mr Main does not accept that there is severe discrimination. However, even 
assuming I accept that to be the case, I cannot determine these appeals by sole reference to 
the actions of the Lebanese authorities. I have to focus on the actions of UNRWA. 
UNRWA, as we have seen, is an organ of the U.N. that occupies an intermediary position 
between the Lebanese authorities and UNRWA-registered stateless Palestinians. Whatever 
may be the policy in practice of the Lebanese authorities, it is far from clear that UNRWA 
pursues a policy of intentional deprivation (by acts or omissions) of assistance to disabled 
persons. Were I to approach the issue of cessation of protection or assistance from 
UNRWA on the same basis as would have to be done under the Refugee Convention and 
under the humanitarian (subsidiary protection regime), I would have to be satisfied that 
there had been intentional infliction of harm or intentional deprivation of assistance on the
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part of UNRWA: see the reasoning of the CJEU in relation to refugee and subsidiary 
protection in M'Bodj and MP as elaborated above at paragraph 22. But it is also arguable 
that the "protection and assistance" afforded by UNRWA, which is not a state, should be 
regarded differently.
113. In the appellants' further submissions Mr Hussain argued that this issue was acte clair 
since whether UNRWA had intentionally deprived (or would intentionally deprive) the 
appellants of protection or assistance or not was irrelevant, because Article 12(l)(a) was 
concerned with the cessation or protection or assistance "for any reason". Mr Main 
disagreed. Mr Hussain's written submissions on this point stated that: " [t]he enquiry is as 
to the state of affairs (has protection or assistance ceased?) not the reason for it, as far as 
UNRWA is concerned." With reference to paragraph 65 of El Kott, he submitted that it is 
irrelevant whether or not the reason why the person is at "serious risk" or it was 
"impossible ... to guarantee ... living conditions" was that UNRWA was intentionally 
inflicting harm or depriving the individual of assistance. "There is no warrant for grafting 
onto the test in El Kott an additional requirement as regards the reasons why protection or 
assistance have ceased." I am not persuaded by this submission. Whilst it is clear from El 
Kott that the reasons why protection or assistance has ceased are irrelevant, there remains 
an issue about what protection or assistance comprises. For the CJEU there is clearly an 
issue of effectiveness. Thus at paragraph 60 it observes that its interpretation:
"...is consistent with the objective of Article 12(l)(a) of Directive 2004/83, which is 
inter alia to ensure that Palestinian refugees continue to receive protection by 
affording them effective protection or assistance and not simply by guaranteeing the 
existence of a body or agency whose task is to provide such assistance or protection, 
as is also apparent from a reading of paragraph 20 of United Nations General 
Assembly resolution No 302 (IV) in conjunction with resolution No 2252 
(ES-V)."(emphasis added).
114. There is also the significance of what the CJEU states at paragraph 65:
"It is for the competent national authorities of the Member State responsible for 
examining the asylum application made by such a person to ascertain, by carrying 
out an assessment of the application on an individual basis, whether that person was 
forced to leave the area of operations of such an organ or agency, which will be the 
case where that person's personal safety was at serious risk and it was impossible for 
that organ or agency to guarantee that his living conditions in that area would be 
commensurate with the mission entrusted to that organ or agency."
115. In this paragraph the CJEU clearly sees it as relevant to consider the effectiveness of 
'protection or assistance' in terms of whether UNRWA is able to guarantee living 
conditions commensurate with its mission. On one view, at least, UNRWA could be said 
to be providing effective protection or assistance to the appellants by making efforts to 
implement the guarantees of dignified living conditions so long as any shortcomings were 
not intentional.
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116. Mr Hussain submitted that if I was not persuaded that the issue of intentional 
deprivation of harm was irrelevant in the Article ID context, then I should at least amend 
my draft question on this issue so as to identify that the role of UNRWA could not be 
considered in isolation and reference was made to "the state in which it operates". Mr 
Main submitted that since Article 12(l)(a) refers only to organs and agencies of the UN, it 
was unnecessary to ask any additional question about the role of the state.
117. Having concluded that a question on this issue is necessary, I am persuaded to add a 
further clause to it so as to seek guidance from the CJEU on the relevance of the state- 
based territorial framework in which UNRWA conducts its area of operations. If there is 
therefore a relevant issue as to the quality of UNRWA's protection or assistance, it is one 
that may require consideration not just of UNRWA's operations in isolation but how it is 
able to operate within the wider framework of the state concerned (in this case, that being 
Lebanon). That would appear to be the position of UNRWA itself, who, in the 
aforementioned Disability Inclusion Guidelines, notes at 1.1.3 that:
"While the primary responsibility to respect, protect and fulfil the rights of persons 
with disabilities under the CRPD lies with States that have ratified the Convention, 
UNRWA can also contribute to the protection of the rights of Palestine refugees with 
disabilities by ensuring that all Agency programmes and services are delivered in 
accordance with international human rights standards."
118. It is also the position of UNHCR whose aforementioned Guidelines state at 22(j) that:
"Although Article ID focuses on the cessation of the protection or assistance of 
UNRWA, the situation in the State in whose jurisdiction UNRWA is operating will not 
only be relevant, but may be determinative of the need for 1951 Convention protection. 
For example, the host State or authorities - not UNRWA - will control whether a 
Palestinian refugee will be permitted to (re)enter their territory and (re)establish 
him/herself there, including whether he or she is able to obtain the necessary legal 
documentation establishing a right to stay in the State or territory. The risk facing the 
applicant may emanate, for example, from the authorities directly. These assessments 
are to be based on reliable and up-to-date information, and special care needs to be 
exercised where the situation is fluid or unclear."
119. What is stated in these same Guidelines at paragraph 22(e) regarding threats of 
"severe discrimination" would also appear to have in contemplation threats by the state 
authorities.
The role of civil society actors in assessing the effectiveness of UNRWA protection and
assistance
120. The third difficulty arises from another aspect of the CJEU in El Kott and Alheto 
viewing a key criterion, in assessing whether protection and assistance on the part of 
UNRWA has ceased, to be that of "effectiveness"/"ineffectiveness". It is unclear whether, 
when assessing this matter, I am entitled to take account of the protective functions
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performed by civil society actors. On the evidence before me, there are clearly a myriad of 
civil society actors working in the camps in southern Lebanon, including international 
actors like UNICEF; regional blocs such as the European Union; and, NGOS like the 
Palestine Red Crescent Society, Anera (Palestine Refugee Aid Organisation) and, of 
particular importance in this case, the Early Intervention Centre which is part of Sour 
Community Disability Project (SCDP) which in turn is run by the Palestinian Women's 
Humanitarian Organisation and is funded by Medical Aid for Palestinians (MAP). The UN 
General Assembly Resolution 302 (IV), 8 December 1949 at paragraph 18:
"Urges the United Nations Children's Emergency Fund, the International Refugee 
Organisation, the World Health Organisation, the United Nations Educational, 
Scientific agencies and private groups and organisations, in consultation with the 
Director of the [UNRWA] for Palestinian refugees in the Near East, to furnish 
assistance within the framework of the programme [referred to in paragraph 3].
121. If the referring tribunal considers that the protective functions of such civil society 
actors are relevant to whether UNRWA as an actor of protection is effective, it is possible it 
may decide that the appellants cannot succeed in showing that there has been or would be 
a cessation of protection and assistance for objective reasons.
122. On the other hand, if the referring tribunal decided that their role was irrelevant to the 
effectiveness of UNRWA protection and assistance, it may well conclude that such 
protection and assistance, in the appellants' case, is ineffective (especially in light of the 
fact that Mr Main's submissions have centred on the existence of NGO sources of help in 
the Al Bass camp).
123. Both parties were in agreement that this issue was a pertinent one on which to make a 
reference.
124. In the course of the appellants' written further submissions, amplified by Mr Hussain 
at the hearing on 17 July 2020, it was urged that I consider referring two further questions, 
which he termed "the UNCCP submission" and the "Article 7 QD submission" 
respectively.
The UNCCP submission
125. The gravamen of the UNCCP submission was that it was necessary to have the Court 
address the anterior question of whether or not UNRWA on its own can be said to provide 
protection or assistance, given that foundationally it was the UNCCP that was accorded 
protection obligations whereas UNRWA was only accorded assistance obligations and 
given that UNCCP for a long time has been in demise. The question proposed was 'Does 
the cessation of protection by UNCCP mean that the Palestinian refugees are ipso facto 
entitled to the benefits of this Directive?" In developing this submission considerable 
weight was placed on the conclusions of the Australian Federal Court in Minister for 
Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329 (hereafter WABQ).
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126.1 do not propose to set out the arguments advanced by Mr Hussain in support of this 
submission in any detail except to note that they were well-formulated. I accept that 
applying EU law principles, it is not fatal to this submission that the appellants' 
representatives did not raise in in the grounds of appeal or at the original hearing or that 
the CJEU case law on Article 12(l)(a) QD has hitherto been based on the premise that 
UNRWA provides protection or assistance and that an applicant can fall within the 
inclusion provision unless able to show there were objective reasons for that protection or 
assistance ceasing. However, I consider it decisive that the academic literature, based in 
turn on analysis of case law around the world, makes clear two things in particular. First, 
that UNCCP only ever had limited protection responsibilities, essentially limited to 
facilitation of "the repatriation, resettlement and economic and social rehabilitation of the 
refugees and the payment of compensation".6
127. Second, that the General Assembly originally included among UNRWA's obligations 
the furtherance of "conditions of peace and security" and since the 1960s, with UNCCP's 
demise, has invested UNRWA with considerable protection obligations. Thus Qafisheh 
and Azarov7 quote from the report by Mr Goulding, commissioned by the Secretary- 
General in 1988 his observation that "UNWA has the leading role and provides a wide 
variety of assistance and protection" with regard to registered refugees. Thus Albanese 
and Takkenberg state that:
"UNRWA, created as a temporary organization and expected to provide relief and 
works programmes that would not be long-term, in the absence of a resolution to the 
conflict (and of UNCCP) has gradually evolved into a large agency, engaging in a 
variety of humanitarian, development and protection activities." 8
In a UN General Assembly resolution of as recent vintage as 7 December 2018 (73/92) it is 
stated at point 3 that the Assembly:
'"3. Affirms the necessity for the continuation of the work of [UNRWA] and the 
importance of its unimpeded operation and its provision of services, including 
emergency assistance, for the well-being, protection and human development of the 
Palestine refugees and for the stability of the region, pending the just resolution of 
the question of the Palestine refugees," (emphasis added)
128. Additionally I note that there is wide support in the academic literature for the view 
that the terms 'protection' and 'assistance' are to be understood as synonymous. (I would 
further note that the Australian case prayed in aid by Mr Hussain - WABQ - offers no
6 UN General Assembly Resolution 194(111) of 11 December 1948, paragraph 11. See also UNRWA's own 
UNRWA, Consolidated Eligibility and Registration Instructions, 1 January 2009, which at p.l states that 
UNRWA's current mandate is: "to provide relief, humanitarian, human development and protection 
services to Palestine Refugees and other persons of concern in its Area of Operations" .
7 Qafisheh and Azarov, 558.
8 Albanese and Takkenberg, 84.
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basis for its assumption that the UNCCP ever had a wide protection role and its approach 
to Article ID is sharply at odds with that taken by the CJEU in Bolbol, El Kott and Alheto 
in more than one key respect (e.g. as regards the interpretation of 'ipso facto' and as regards 
the need for an individuated approach)).
The Article 7 submission
129. With reference to his written further submissions, Mr Hussain contended that 
applying a dynamic interpretation, Article 7 of the QD should now be taken to define the 
meaning of protection within Article ID of the 1951 Convention (Article 12(l)(a) QD). He 
considered this to be the right approach because one of the purposes of the Qualification 
Directive is to introduce common criteria for recognizing applicants for refugee status 
within the meaning of Article 1 of the 1951 Convention; because Article 1 includes Article 
ID; and because (in his words) "protection is one of the concepts which is to be given a 
common meaning by the Qualification Directive." He pointed out that Article 12(1) of the 
Qualification Directive falls within Chapter III, 'Qualification for being a refugee'. Chapter 
II of the Qualification Directive is entitled 'Assessment of Applications for International 
Protection' and it includes Article 7 'Actors of protection'. Mr Main did not accept the 
need for any reference on this matter.
130. Having considered the arguments, I am not persuaded that any reference is needed 
on the Article 7 issue. When the Qualification Directive was concluded in 2004, the 
drafters clearly considered that there remained two distinct types of protection in play in 
assessment of whether persons qualify as a refugee. Whereas for the purposes of assessing 
whether a person was a refugee within the meaning of Article 1A(2) of the 1951 
Convention and Article 2(c) of the QD, it had to be established that there were actors of 
protection as defined in Article 7(1), the protection at issue in Article 12(l)(a) was by 
definition 'protection or assistance 'from organs or agencies of the United Nations" (emphasis 
added). Whilst it is arguable that some of the requirements of Article 7(2) relating to 
effectiveness, the non-temporary nature and the accessibility of protection may have an 
analogical bearing on the meaning of protection in Article 12(1) (a), it is simply not 
arguable that the definition of 'actor' in Article 7(1) (which requires such an actor to be 
either a state or a quasi-state entity) can have any purchase in relation to organs or 
agencies of the United Nations.
D: QUESTIONS TO THE CJEU
131. Given that I consider the law in relation to the meaning of the words in Article 
12(l)(a) of the QD - "[wjhen such protection or assistance has ceased for any reason...." - 
to be not acte clair in the three aforementioned respects, I propose to ask the CJEU the 
following questions:
In assessing whether there has been a cessation of protection or assistance from 
UNRWA within the meaning of the second sentence of Article 12(1) (a) of the QD to an 
UNRWA-registered stateless Palestinian in respect of the assistance afforded to 
disabled persons:
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1. Is the assessment purely an historic exercise of considering the circumstances 
which are said to have forced an applicant to leave the UNRWA area of operations 
when he did, or is it also an ex nunc, forward-looking assessment of whether the 
applicant can avail himself of such protection or assistance presently?
2. If the answer to Question 1 is that assessment includes a forward-looking 
assessment, is it legitimate to rely analogically on the cessation clause in Article 11, 
so that where historically the applicant can show a qualifying reason as to why he 
or she left the UNRWA area, the evidential burden falls upon the Member State to 
show that such reason no longer holds?
3. In order for there to be justifiable objective reasons for the departure of such a 
person related to UNRW's provision of protection or assistance, is it necessary to 
establish intentional infliction of harm or deprivation of assistance (by act or 
omission) on the part of UNRWA or the state in which it operates?
4. Is it relevant to take into account the assistance provided to such persons by civil 
society actors such as NGOs?
E. DIRECTION JOINING UNHCR AS INTERVENOR
132. As noted earlier, in my decision of 11 May 2020, the parties were asked to indicate 
whether they were agreeable to UNHCR being joined at this stage of the proceedings. Both 
parties stated their agreement. One consequence of this is that when the reference is 
lodged in Luxembourg, UNHCR will have standing as an intervening party.
Direction Regarding Anonymity
Unless and until a Tribunal or court directs otherwise, the appellants are granted 
anonymity. No report of these proceedings shall directly or indirectly identify them or 
any member of their family. This direction applies both to the appellants and to the 
respondent. Failure to comply with this direction could lead to contempt of court 
proceedings.
Signed
M H "S-fe
Date: 29 July 2020
Sitting as a Judge of the First-tier Tribunal
34