Opinion of the Advocate General — ECLI:EU:C:2024:33
Date: 2024-01-11
Language of the case: Bulgarian
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights;Border checks
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-563/22 – 1 
Case C-563/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
22 August 2022 
Referring court:  
Administrativen sad Sofia-grad (Bulgaria) 
Date of the decision to refer:  
9 August 2022 
Applicants:  
SN 
LN, represented by SN  
Defendant:  
Zamestnik-predsedatel na Darzhavnata agentsia za bezhantsite 
      
Subject matter of the main proceedings 
Action on the basis of the Administrativnoprotsesualen kodeks (Code of 
Administrative Procedure; ‘the APK’) against the decision of the Zamestnik-
predsedatel na Darzhavnata agentsia za bezhantsite (Deputy Chairperson of the 
State Agency for Refugees, Bulgaria; ‘the DAB’) refusing to grant refugee status 
and humanitarian status to SN and her minor child LN. 
Subject matter and legal basis of the request 
Article 267 TFEU; interpretation of the second sentence of Article 12(1)(a) of 
Directive 2011/95/EU and of Article 40(1) of Directive 2013/32/EU, in particular 
the elements to be considered in a subsequent application for international 
protection, and the criteria for the risk that persons of Palestinian origin, in 
particular minors, who have left the area of operations of the United Nations 
Relief and Works Agency for Palestine Refugees in the Near East (‘UNRWA’) 
will be exposed to extreme material poverty in the event of refoulement, in the 
EN 
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light of the recommendation of the United Nations High Commissioner for 
Refugees (‘UNHCR’) against refoulement. 
Questions referred for a preliminary ruling 
1. Does it follow from Article 40(1) of Directive 2013/32/EU that, where a 
subsequent application for international protection lodged by a stateless 
applicant of Palestinian origin on the basis of his or her registration with 
UNRWA is admissible, the obligation on the competent authorities laid 
down in that provision to take into account and consider all the elements 
underlying the further representations in the subsequent application also 
includes, in the circumstances of the case, the obligation to consider the 
reasons for which the person left UNRWA’s area of operations, in addition 
to the new elements or circumstances which are the subject of the 
subsequent application, when that obligation is interpreted in conjunction 
with the second sentence of Article 12(1)(a) of Directive 2011/95/EU? Does 
fulfilment of that obligation depend on the fact that the reasons for which the 
person left UNRWA’s area of operations had already been examined in the 
proceedings relating to the first application for [international] protection, 
which resulted in a final decision refusing such protection but in which the 
applicant neither invoked nor proved his or her registration with UNRWA? 
2. Does it follow from the second sentence of Article 12(1)(a) of Directive 
2011/95 that the phrase ‘When such protection or assistance has ceased for 
any reason’ in that provision applies to a stateless person of Palestinian 
origin who was registered with UNRWA and was receiving assistance in 
Gaza City from UNRWA in the form of food, health services and 
educational services, without there being any evidence of a personal threat to 
that person, who left Gaza City voluntarily and lawfully, having regard to 
the information available in the case: 
– assessment of the general situation at the time of departure as constituting 
an unprecedented humanitarian crisis, associated with shortages of food, 
drinking water, health services and medicines, as well as water and 
electricity supply issues, the destruction of buildings and infrastructure, and 
unemployment; 
– UNRWA’s difficulties in sustaining the provision of aid and services in 
Gaza, including in the form of food and health services, due to a significant 
deficit in UNRWA’s budget and a steady increase in the number of persons 
in need of the agency’s assistance, [and the circumstance that] the general 
situation in Gaza is undermining UNRWA’s activities? 
Must that question be answered differently for the sole reason that the applicant is 
a vulnerable person within the meaning of Article 20(3) of that directive, namely a 
minor child? 
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3. Must the second sentence of Article 12(1)(a) of Directive 2011/95 be 
interpreted as meaning that an applicant for international protection who is a 
Palestinian refugee registered with UNRWA may return to the UNRWA 
area of operations which he or she had left, specifically to Gaza City, where, 
at the time of the hearing of his or her action against a refusal decision 
before the court, 
– there is no certainty that that person will be able to obtain from UNRWA 
the necessary food, health services, medicines and healthcare and education; 
– the information on the general situation in Gaza City and on UNRWA, 
according to the UNHCR Position on Returns to Gaza of March 2022, was 
assessed as constituting justification for leaving UNRWA’s area of 
operations and for non-return; 
as well as the fact that, if the applicant were to return, he or she would be able to 
stay there in dignified living conditions? 
For the purpose of applying and complying with the principle of non-refoulement 
under Article 21(1) of Directive 2011/95, in conjunction with Article 19 of the 
Charter, does the personal situation of an applicant for international protection 
come within the scope of the interpretation given in operative part 4 of the 
judgment of 19 March 2019, Jawo (C-163/17, EU:C:2019:218), concerning 
extreme material poverty under Article 4 of the Charter of Fundamental Rights of 
the European Union, in the light of the situation in the Gaza Strip at the time in 
question, and in so far as the applicant in question is dependent on UNRWA’s 
assistance as regards food, health services, medicines and healthcare? 
On the basis of the information regarding the general situation in Gaza City and 
regarding UNRWA, must the question as to return to Gaza City be answered 
differently for the sole reason that the person applying for protection is a minor 
child, with a view to safeguarding the best interests of the child and guaranteeing 
his or her well-being and social development, protection and safety? 
4. Depending on the answer to the third question: 
In the present case, must the second sentence of Article 12(1)(a) of Directive 
2011/95, and in particular the phrase ‘those persons shall ipso facto be entitled to 
the benefits of this Directive’ in that provision, be interpreted as meaning that: 
(А) the principle of non-refoulement under Article 21(1) of Directive 2011/95, in 
conjunction with Article 19(1) of the Charter, is applicable in relation to a person 
applying for protection who is a stateless Palestinian registered with UNRWA 
because, if returned to Gaza City, the person would be exposed to the risk of 
inhuman and degrading treatment, as he or she could suffer extreme material 
poverty, and comes within the scope of Article 15[(b)] of Directive 2011/95 for 
the purpose of being granted subsidiary protection; 
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or 
(B) that provision, in relation to a person applying for protection who is a stateless 
Palestinian registered with UNRWA, requires recognition by that Member State 
of refugee status within the meaning of Article 2(c) of that directive and the 
granting to that person of refugee status by operation of law, in so far as he or she 
does not come within the scope of Article 12(1)(b) or (2) and (3) of that directive, 
in accordance with operative part 2 of the judgment of 19 December 2012, Abed 
El Karem El Kott and Others (C-364/11, EU:C:2012:826), without account being 
taken of the circumstances relating to that person which are relevant to the grant 
of subsidiary protection under Article 15[(b)] of Directive 2011/95? 
Provisions of international law 
The 1951 Convention relating to the Status of Refugees 
Article 1D 
Provisions of EU law and case-law of the Court 
Treaty on the Functioning of the European Union, Article 78(1) and (2)(a) and (d); 
Charter of Fundamental Rights of the European Union, Articles 4, 18, 19(2) and 
24(2); 
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 (recast), in particular recital 18, Article 2(a), (d), (e), (f) and 
(h), Article 4(3)(a) to (c), Article 12(1)(a), Article 15(b), Article 20(3) and (5), 
Article 21(1); 
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 
2013 on common procedures for granting and withdrawing international 
protection (recast), Article 1, Article 2(b), (c), (e), (g) to (k) and (q), Article 3(1), 
Article 40(1) to (3), Article 46(1) and (3); 
Several judgments of the Court of Justice of the European Union cited in the text 
below. 
Provisions of national law 
Zakon za ubezhishteto i bezhantsite (Law on asylum and refugees), Article 1, 
Article 2(3), Article 4(3), Article 6a, Article 8(1), Article 9(1), point 2, 
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Article 12(1), point 4, Article 13(2), Article 73, Article 75(2), Article 76a, 
Article 76b, point 1; Paragraph 1, points 2, 3, 6, 7, 10, 11, 17 to 19 
Administrativnoprotsesualen kodeks (Code of Administrative Procedure), 
Article 168(1), Article 172(2), Article 173 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, SN, was born in Gaza City, Palestine, on 4 November 1995 and is a 
stateless Palestinian woman, married, and currently in the territory of the Republic 
of Bulgaria, together with her child, LN, a girl born in the Gaza Strip on 
23 October 2016, also a stateless Palestinian. The applicants were residents of 
Gaza City. The applicant is registered with UNRWA; the registration also applies 
to her daughter, LN. In 2016, UNRWA conducted a poverty assessment at the 
request of KN, the applicants’ husband and father, respectively, and the family 
received minimal food assistance, which they considered to be insufficient, as 
well as medical assistance; SN also attended school. The family did not live in a 
UNRWA camp, but in the house of SN’s father. In July 2018, SN departed Gaza 
City together with LN, legally, via the Rafah Border Crossing on the border with 
Egypt. She stayed there for 45 days, in the town of Ismailia, after which she 
lawfully entered Turkey, where she stayed for 7 months. Some time later, her 
husband also arrived, after which the entire family illegally transited through 
Greece and entered the territory of the Republic of Bulgaria, where they were 
apprehended on the day of entry. 
2 SN first applied for international protection on 22 March 2019 [for herself] 
personally and as the legal representative of her minor child. In that procedure, 
she did not state that she was registered with UNRWA. At the interview, the 
person seeking protection justified her application on the basis of the precarious 
situation in the Gaza Strip, the lack of basic living conditions, and the fact that 
wars were fought almost every year and many people had suffered heart attacks 
due to the tense situation. She stated that, were it not for Israeli shelling, Fatah and 
Hamas would fight each other. Due to the constant bombardment, her husband 
was in mortal danger while he was working. Her house was located near a police 
station; in times of war, rockets would inevitably land near that station, and the 
applicant fears that her house will be hit. In response to that application, the 
Predsedatel of the DAB (Chairman of the State Agency for Refugees) refused to 
grant refugee status and humanitarian status to the applicant and her daughter by 
decision of 5 July 2019. 
3 The decision refusing the first application was challenged before the 
Administrativen sad Sofia grad (Administrative Court, Sofia City; ‘the ASSG’), 
which dismissed the action by judgment of 20 December 2019. Following an 
appeal in cassation, the Varhoven administrativen sad (Supreme Administrative 
Court; ‘the VAS’) confirmed the judgment of the ASSG by judgment of 3 June 
2020. As a result, the refusal decision of the Chairman of the State Agency for 
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Refugees became final on 3 June 2020. The decisive findings of the courts were 
that SN and her child were neither forced to leave Gaza due to a real risk of 
torture or other serious harm nor at risk of suffering such harm if they returned to 
their country of origin. The situation in the Gaza Strip could not be classified as an 
armed conflict. It could not be established that SN had problems with the official 
authorities in her country of origin or that she had been detained or persecuted for 
political activities. The Supreme Court of Cassation took the view that it was 
logical for an asylum seeker to remain in the first safe country for him or her, in 
this case Egypt and Turkey, and later to return to his or her country of origin. SN 
had entered Bulgaria illegally only because she was seeking a better economic 
life. The allegation that Article 6a of the Zakon za ubezhishteto i bezhantsite (Law 
on asylum and refugees; ‘the ZUB’) had been infringed with regard to the 
assessment of the best interests of the child was considered to be unfounded. 
4 On 21 August 2020, SN, through a lawyer, lodged a second application for 
international protection [for herself] personally and as the legal representative of 
her child. That application was a subsequent application within the meaning of 
Paragraph 1, point 6, of the Dopalnitelni razporedbi (Additional Provisions) for 
the ZUB. She requested that they be granted refugee status in Bulgaria. In that 
application, she stated, as a new circumstance, that SN and her family were 
registered as Palestinian refugees. 
5 By decision of 28 August 2020 of the Intervyuirasht organ na DAB (Interviewing 
Body of the State Agency for Refugees), the subsequent application of SN and LN 
was admitted to the international protection procedure on the ground that SN had 
asserted in her application new circumstances of material importance with regard 
to her personal situation and country of origin. SN was appointed as the child’s 
representative in the procedure. The Darzhavna agentsia ‘Natsionalna sigurnost’ 
(State Agency for ‘National Security’) did not object to the granting of protection 
in the Republic of Bulgaria. An opinion from the Agentsia za sotsialno 
podpomagane (Social Welfare Agency) stating that ‘the fundamental rights of the 
child LN have not been violated’ was also submitted. It was established that the 
family was financially supported by SN’s relatives who were in Sweden and had 
been granted [humanitarian] status. At the hearing held on 25 September 2020, SN 
stated that she had not experienced any problems in relation to her ethnic group 
and religion. She stated that she applied for international protection because they 
lived in an area under constant bombardment and without any security, and their 
lives were in constant danger because their house was near a military unit of the 
Hamas organisation, which was a constant target and was frequently bombarded 
with rockets and bombs. The house had been hit by a number of rockets and some 
shrapnel (half of the house no longer existed after being hit by a rocket), and the 
roof had been blown off by an attack in 2014. They then moved into the house of 
SN’s grandfather, where they lived for almost two years before moving back into 
their own house after carrying out repairs. In addition, SN pointed to the 
limitations in the assistance provided by UNRWA (food parcels were for fewer 
people, cash assistance was no longer provided in schools, financial assistance had 
not been provided for two or three years, and other aid had been reduced) and to 
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the general situation in Gaza City: food, medicine, fuel and other essentials were 
in short supply. As reasons for leaving Gaza City and not returning there, she 
referred to the deterioration of the situation there, the high unemployment, due 
also to the coronavirus, the closure of schools and the imposition of military 
curfews, with the Hamas Government being very strict about people not leaving 
their homes; she stated that that government is very cruel. She asks that she be 
permitted to stay in Bulgaria or to be reunited with the rest of her family in 
Sweden, where her parents had previously moved in 2008, until the situation in 
Gaza allows them to return there. 
6 After the procedure had been conducted, refugee status and humanitarian status 
were refused by the contested decision of 14 May 2021 in accordance with 
Article 75(1)(2) and (4) of the ZUB, in conjunction with Articles 8 and 9 thereof. 
In his decision, the Deputy Chairman of the State Agency for Refugees stated that 
the subject matter of the examination as to whether substantive law applied to the 
subsequent application was limited to whether there were any new circumstances 
at all concerning [the applicant’s] personal situation or her country of origin; 
whether those circumstances were relevant to her personal situation or country of 
origin; and to an assessment of the extent to which the circumstances were 
substantiated on the basis of the documentary evidence submitted. He found that 
the new evidence submitted did not prove new circumstances of material 
importance and that the grounds from the previous procedure were precluded. 
Moreover, the deteriorated economic and health situation in SN’s country of 
origin, as alleged by her, did not come within the scope of the ZUB and was a 
widespread phenomenon created by the global crisis of the COVID-19 virus. Nor 
did her registration with UNRWA constitute a new circumstance of material 
importance. SN had availed herself of protection which had ceased by virtue of 
her [own] decision, and there were no reasons why she and her child could not 
benefit from that protection again in the event of their possible return to their 
country of origin. The allegations relating to the general situation in Gaza did not 
establish a personal element of persecution or danger to life. SN had not been 
forced to leave her country of origin on any of the grounds set out in Article 8(1) 
of the ZUB. 
7 The Deputy Chairman of the State Agency for Refugees further stated that, for 
those same reasons, there was also no entitlement to the granting of humanitarian 
status under points 1 and 2 of Article 9(1) of the ZUB. The overall assessment of 
the situation in Gaza on the basis of generally accepted criteria and definitions did 
not allow it to be classified as an armed conflict; for the first time in 14 years, the 
Palestinian territories were preparing for general presidential and parliamentary 
elections. The foreign national and her child could not be presumed to be facing a 
real risk of being exposed to a threat relevant to the granting of the status under 
point 3 of Article 9(1) of the ZUB on the sole basis of their presence in the 
territory of their country of origin. 
8 According to the administrative authority, the best interests of the minor child LN 
should be examined in the light of the principle of preserving family unity. That 
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principle required that the child remain with the parents and continue to live in a 
family environment, account being taken of cultural identity and family ties 
already established. The situation of the child’s father, KN, was also discussed. 
His first application for protection of 2 April 2019 was refused, and the appeals 
against the refusal were dismissed. In response to his second application for 
protection of 18 June 2021, the Deputy Chairman of the State Agency for 
Refugees refused [to grant] international protection by decision of 9 March 2022. 
The action brought against the refusal decision was dismissed by judgment of the 
ASSG of 8 June 2022, which is currently the subject of an appeal in cassation. 
The essential arguments of the parties in the main proceedings 
9 The action, which was brought through a lawyer, seeks to have the decision 
annulled and the proceedings referred back to the administrative authority with 
binding instructions on the interpretation and application of the statutory 
provisions. It is submitted that the case of SN and her minor daughter comes 
within the scope of the second sentence of Article 1(D) of the Geneva Convention 
on Refugees and the second sentence of Article 12(1)(a) of Directive 2011/95/EU, 
as they are no longer receiving the protection and assistance of UNRWA due to 
circumstances beyond their control. They were ipso facto entitled to refugee status 
as they were already recognised as refugees by the international community. They 
emphasise that the family left UNRWA’s area of operations due to a serious threat 
to their safety and lives in Gaza. They submit a letter from UNHCR dated 
18 August 2020, as well as recent press articles on the situation in Gaza and the 
cessation of the annual payments from the U.S. to UNRWA in 2018. On the basis 
of paragraph 3 of UNHCR’s Guidelines on International Protection No. 13 on the 
Applicability of Article 1D [of the 1951 Convention relating to the Status of 
Refugees] to Palestinian Refugees of December 2017, and of paragraph 86 of the 
judgment of the Court of 25 July 2018, Alheto, C-585/16, it is considered that SN 
and her daughter should not have to demonstrate again that they have a well-
founded fear of being persecuted, within the meaning of Article 8(4) of the ZUB. 
10 The applicants allege an infringement of Article 6a of the ZUB, in conjunction 
with point 11 of Paragraph 1 thereof, and of point 5 of Paragraph 1 of the Zakon 
za zakrila na deteto (Law on child protection) and Article 75(2) of the ZUB, 
concerning the safeguarding of the best interests of minor children. They submit 
that Article 75 of the ZUB and Article 35 of the APK (Code of Administrative 
Procedure) had also been infringed, as no up-to-date information on the situation 
in the country of origin – the Gaza Strip – was obtained and assessed; the return of 
the applicant and her minor daughter to the Gaza Strip would significantly 
endanger their lives and safety and constitute an infringement of Articles 2 and 3 
of the European Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘the ECHR’) and Article 3(1) of the UN Convention on the Rights of 
the Child. LN’s threshold of protection as a minor was higher than that of her 
parents; reference is made to the judgment of the Court of 4 October 2018, 
C-652/16, according to which the protection granted could be extended to other 
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family members, in this case the child’s parents. The particular vulnerability of 
children must be taken into account; in the event of LN’s possible return to Gaza, 
her well-being, protection and safety would be at significant risk – given the 
worsening humanitarian crisis and the lack of food, medicine and healthcare – 
which was contrary to the principle of the best interests of the child. 
11 UNRWA’s provision of basic services and its humanitarian operations were being 
jeopardised due to persistent financial shortfalls. SN is pregnant at the time of the 
written appeal and asks that account be taken of the fact that, if she were to return 
to Gaza, UNRWA would not be able to provide the ongoing medical care that she 
requires. She submits that it is objectively impossible for her to return to the Gaza 
Strip because of the restrictions imposed by Israel, which she cites as a 
circumstance relating to the cessation of protection or assistance – Court of 
Justice, 31 January 2021, Bundesrepublik Deutschland (Refugee status of a 
stateless person of Palestinian origin), C-507/19, EU:C:2021:3, paragraphs 57-58. 
The impossibility of returning to the Gaza Strip is also confirmed by information 
contained in a decision of the Ministerstvo na vatreshnite raboti (Ministry of 
Interior) of the Republic of Bulgaria of 21 September 2021, according to which 
483 orders to return were issued in respect of Palestinians in the period from 2010 
to 2021 but not a single stateless Palestinian was returned to Palestine. That 
information proved that it was not possible for foreign nationals subject to 
repatriation to be returned from Bulgaria to Palestine, for reasons beyond their 
control. 
12 SN cites recent information on the situation in Gaza, according to which 80% of 
its population depend on humanitarian aid, with the result that it is necessary to 
apply the criteria for extreme material poverty and the interpretation of Article 4 
of the Charter of Fundamental Rights of the European Union given in the 
judgment of the Court (Grand Chamber) of 19 March 2019, C-163/17 
(paragraphs 91 to 93), according to which the transfer of a person to another 
Member State is impermissible if the person would find himself or herself in a 
situation of extreme material poverty. She takes the view that the return of the 
applicants to the Gaza Strip would infringe the principle of non-refoulement under 
Article 4(3) of the ZUB. According to SN, the applicants could return to Gaza 
only via the Rafah Border Crossing on the Egyptian border, but that crossing point 
is unpredictable and requires prior authorisation from the Egyptian authorities, 
and it is often closed for long periods. She also refers to the judgment of the 
[International] Court of Justice in The Hague in Case NL20.17797, 
paragraph 9.2.3, published on 4 June 2021, concerning a subsequent application 
for protection made by a Palestinian refugee coming from one of UNRWA’s areas 
of operation, namely Lebanon. That judgment states that ‘The provision of basic 
services does not automatically mean that UNRWA provides living conditions 
that are consistent with the tasks entrusted to it. The quality of those services must 
also be taken into account …’ 
13 It is requested before the court that a summons of 26 March 2018 served on KN 
by the authorities in Gaza be taken into account as a reason for leaving Gaza in 
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July 2018, it being asserted that this also constituted a summons by the police and 
Hamas for the purpose of detaining him for having participated in peaceful 
protests against the Hamas government. According to SN, it is clear to the people 
of the Gaza Strip that, if they are detained, they will be beaten and tortured and 
could even be killed in prison. SN and her family were forced to leave Gaza on 
account of that risk. She cites the judgment of the Court of 19 December 2012, 
Abed El Karem El Kott and Others, C-364/11, EU:C:2012:826, paragraphs 63 and 
64. 
14 The defendant – the Deputy Chairman of the State Agency for Refugees – 
opposes the action in its entirety and submits a recent query regarding Palestine, 
containing information on the Gaza Strip. He submits that the action is unfounded 
and contends that it should be dismissed. The applicant was recognised as a 
refugee by UNRWA; the assistance that she was receiving did not cease due to 
circumstances beyond her control, but, rather, she voluntarily waived that 
protection by leaving the area of operations. Therefore, refugee status should not 
be granted to her on the basis of that circumstance. The refugee history of the 
foreign national and her child was examined in detail in the previous 
administrative procedure, and the refusal to grant international protection was 
confirmed by judgment of the VAS (Supreme Administrative Court). 
15 The public prosecutor at the Sofiyska gradska prokuratura (Public Prosecutor’s 
Office for the City of Sofia) considers that the action is unfounded and requests 
that it be dismissed. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
16 EU law must be observed in considering the application for the granting of 
refugee status in Bulgaria to SN and her minor daughter LN, and, more 
specifically, account must be taken of Article 12 of Directive 2011/95 – and the 
Court’s interpretation of that provision (judgments in C-31/09, EU:C:2010:351, 
Bolbol, in С-364/11, EU:C:2012:826, Abed El Karem El Kott and Others, and in 
C-585/16, EU:C:2018:584, Alheto and Others) – as well as provisions of 
Directive 2013/32. 
17 The referring court extensively quotes the grounds on which the ASSG overturned 
the refusal to admit subsequent applications for international protection in two 
similar cases, as well as the interpretation of Article 4 of the Charter in operative 
part 3 of the judgment [of the Court] (Grand Chamber) of 19 March 2019, Jawo, 
С-163/17, EU:C:2019:218, and the criteria of extreme material poverty set out by 
the Court in paragraphs 91 to 93 of that judgment, as well as the judgment of the 
Court of 25 July 2018, Alheto, C-585/16, EU:C:2018:584. The ASSG’s main 
argument in the second case is that it cannot be assumed that the applicant in those 
proceedings could live in UNRWA’s area of operations in humane conditions, 
with the result that she should not be returned there as she would be subjected to 
conditions prohibited by Article 4 of the Charter. According to that court, her 
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legal situation comes within the scope of application of point 2 of Article 9(1)(2) 
of the ZUB concerning the granting of humanitarian status, which she had also 
applied for. The two judgments cited were delivered against the backdrop of 
UNRWA’s extreme financial hardship due to the cessation of U.S. funding in 
2018 and in the light of three European Parliament resolutions on the situation in 
Gaza: European Parliament resolution of 8 February 2018 on the situation of 
UNRWA, European Parliament resolution of 17 July 2014 and European 
Parliament resolution of 18 September 2014 on Israel-Palestine after the Gaza war 
and the role of the EU. At the same time, the above interpretation of Article 4 of 
the Charter was not applied in the judgments on the action brought by SN and LN 
against the refusal to grant refugee status and humanitarian status to them, 
including in relation to the first application for international protection. Nor was it 
applied in the judgments on KN’s action against the refusal to grant him refugee 
status and humanitarian status, or in the ASSG’s judgment of 8 June 2022 against 
which an appeal in cassation has been brought. 
18 According to the referring court, there is conflicting case-law on the assessment of 
the situation in Gaza and the taking into account of UNHCR’s position of March 
2022 on the non-return of Palestinian refugees registered with UNRWA because 
of the situation in Gaza. Furthermore, in Ibrahim, C-297/17, the issue was raised 
that Palestinians in Bulgaria are granted subsidiary protection while Germany 
grants refugee status to such persons. In order to ensure that the second sentence 
of Article 12(1)(a) of Directive 2011/95, also in conjunction with the prohibition 
under Article 19 of the Charter and the case-law in Jawo, C-163/17, concerning 
the status to be granted and the possibility of the person’s return to the territory of 
Gaza, is applied uniformly to Palestinian refugees registered with UNRWA, an 
interpretation by the Court is required. 
19 The referring court cites the judgment of 13 January 2021, Bundesrepublik 
Deutschland (Refugee status of a stateless person of Palestinian origin), 
C-507/19, paragraph 69, in which the Court of Justice held that the fact that 
persons who ‘are at present receiving’ protection from an organ of the United 
Nations are excluded under Article 1(D) of the Geneva Convention on Refugees, 
to which the first sentence of Article 12(1)(a) of Directive 2011/95 refers, cannot 
be construed as meaning that mere absence or voluntary departure from 
UNRWA’s area of operations would be sufficient to end the exclusion from 
refugee status laid down in that provision. 
20 Consequently, the reasons for which the applicants left UNRWA’s area of 
operations in Gaza are of material importance in assessing whether their legal 
situation comes within the scope of the second sentence of Article 12(1)(a) of 
Directive 2011/95 and the second sentence of Article 1(D) of the Geneva 
Convention. In the absence of an assessment, it should be assumed for procedural 
reasons alone that the departure from UNRWA’s area of operations was voluntary 
and that the assistance had not ceased. However, the referring court also raises 
procedural issues: In the procedure relating to the first application for protection, 
registration with UNRWA was not discussed and, accordingly, the circumstances 
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concerning the assistance provided to the applicants and UNRWA’s activities 
were not assessed. A final refusal decision was issued in relation to that 
application, and, in the contested decision at issue, it was [therefore] considered 
that those circumstances were precluded. 
21 However, the [referring court] takes the view that operative part 1 of the judgment 
of 3 March 2022, NB, AB, C-349/20, EU:C:2022:151, is inapplicable with regard 
to the subsequent application for protection, which, in accordance with Article 76a 
of the ZUB, in conjunction with Article 13(2) thereof, is to be based on ‘new 
elements or facts’. According to Article 40(1) of Directive 2013/32, those new 
circumstances may be examined in the framework of the examination of the 
previous application or the subsequent application, ‘or in the framework of the 
examination of the decision under review or appeal, in so far as the competent 
authorities can take into account and consider all the elements underlying the 
further representations or subsequent application within this framework’. It can be 
inferred from that provision that the new elements invoked must in any event be 
examined together with all those invoked up until that point. In the present case, it 
would be possible to arrive at an interpretation according to which the reasons for 
leaving Gaza and the situation there in 2019 must necessarily be taken into 
account in addition to the registration with UNRWA in the examination of the 
subsequent application. However, such a conclusion would contradict the 
stipulation regarding the inadmissibility of subsequent applications in 
Article 33(2)(d) of Directive 2013/32, which was transposed in Article 13(2) of 
the ZUB, in conjunction with Article 76a thereof. 
22 Therefore, an interpretation by the Court of Article 40(1) of Directive 2013/32 is 
required with regard to the permissibility, in the context of a subsequent 
application, of an examination of the arguments relating to the reasons for leaving 
Gaza in the context of the new circumstance of registration with UNRWA. In 
view of the wording of the provision – ‘[examination of the] decision under 
review or appeal’ – an interpretation is also required with regard to the question as 
to the procedure in which such an assessment may be carried out – in the 
administrative procedure or in the judicial proceedings. If the ‘decision under 
review or appeal’ in the provision is to be understood as referring to the decision 
refusing the first application for international protection and not a separate 
procedure in which the annulment of a refusal decision which has already become 
final is sought, the authority would have been obliged to carry out such an 
examination. With regard to the term ‘decision under review or appeal’, it is not 
clear whether it refers to judicial proceedings, in so far as the court does not 
examine a subsequent application for international protection. The subject matter 
of the case and of the court’s review of legality is the administrative decision 
refusing to grant international protection. 
23 SN expressly stated that she had not been threatened or persecuted on personal 
grounds. With regard to the argument that the family’s home had frequently been 
targeted in attacks, SN stated in the personal interview that they had lived 
elsewhere for two years and then returned because otherwise they would have had 
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to have rented and pay a lot of money. Consequently, the requirement of a serious 
threat to the personal security of the Palestinian concerned as a reason for leaving 
UNRWA’s area of operations cannot be considered to have been met. 
24 It is requested in the proceedings that the general situation in Gaza be assessed as 
a reason for leaving and as a reason for the impossibility of returning to the 
agency’s area of operations, including on grounds of belonging to a vulnerable 
group. It is also claimed that return is de facto impossible. The question arises as 
to whether that circumstance alone is sufficient to assume that ‘that person is 
forced to leave the UNRWA area of operations owing to circumstances beyond 
his control’ and, accordingly, the second sentence of Article 12(1)(a) of Directive 
2011/95 and the second sentence of Article 1(D) of the Geneva Convention on 
Refugees apply to that person. Those provisions would be applicable only if 
UNRWA’s support had ceased. The referring court deals extensively with the 
judgment of the Court of 19 December 2012, Abed El Karem El Kott and Others, 
C-364/11, paragraphs 61 and 63, with regard to the question as to the conditions 
under which the assistance granted by UNRWA can be considered to have ceased. 
According to the Court, for the purpose of determining whether assistance or 
protection has actually ceased, it must be ascertained whether the departure of the 
person concerned may be justified by reasons beyond his or her control and 
independent of his or her volition which force him or her to leave the area in 
question and thus prevent him or her from receiving UNRWA assistance. The 
Court also held that ‘a Palestinian refugee must be regarded as having been forced 
to leave UNRWA’s area of operations 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’. In such a 
case, the general situation in Gaza would be relevant only if it prevented UNRWA 
from providing assistance and protection to Palestinians in Gaza in accordance 
with the mission for which the agency was established. 
25 The general situation, including the blockade imposed, does in fact affect 
UNRWA’s ability to provide such assistance and protection. The referring court 
states that the United Nations Relief and Works Agency for Palestine Refugees in 
the Near East (UNRWA) was established pursuant to United Nations General 
Assembly Resolution 302(IV) of 8 December 1949 in order to assist Palestinian 
refugees, and its mandate is regularly renewed. Its area of operations includes 
Lebanon, Syria, Jordan, the West Bank (including East Jerusalem) and the Gaza 
Strip. As is known, its mandate has been renewed. The referring court discusses in 
detail the information and evidence presented concerning the general situation in 
Gaza and sets out reasons why it should be taken into account, namely: judgment 
of 3 March 2022, NB, AB, C-349/20, paragraph 82; judgment in Jawo, C-163/17, 
and, more specifically, the interpretation of Article 4 of the Charter, given in 
relation to the situation of a ‘a person wholly dependent on State support finding 
himself, irrespective of his wishes and personal choices, in a situation of extreme 
material poverty that does not allow him to meet his most basic needs, such as, 
inter alia, food, personal hygiene and a place to live, and that undermines his 
physical or mental health or puts him in a state of degradation incompatible with 
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human dignity’. The referring court takes the view that, having regard to the 
applicable principle of non-refoulement, the content of which includes the 
prohibition of inhuman or degrading treatment, the interpretation of Article 4 of 
the Charter given in relation to the transfer from one Member State to another of a 
third-country national who has applied for international protection is also 
applicable to the return of such a person to his or her country of origin. 
26 The referring court considers that the criteria for extreme material poverty are not 
fully met in relation to the needs of personal hygiene and a place to live, but, as 
regards the consequences (‘that undermines his physical or mental health or puts 
him in a state of degradation incompatible with human dignity’), there is evidence 
of a deterioration of the situation in Gaza and of the plight of the inhabitants. 
27 Paragraphs 6 and 7 of the European Parliament resolution of April 2018 assessed 
the situation in Gaza as a ‘deteriorating, unprecedented humanitarian crisis in the 
area’, due also to the blockade of Gaza. The referring court quotes that resolution 
at length and also describes the protests by Palestinians near the fence separating 
Gaza and Israel, in which hundreds were killed and thousands injured, including 
children, and the subsequent ongoing escalation of hostilities. 
28 It is not apparent that the situation in Gaza in 2021 has significantly improved or 
that the humanitarian crisis has been resolved. The referring court cites and 
discusses in detail, inter alia, the information before it that, despite the restoration 
of U.S. financial support to UNRWA in 2021, the situation in Gaza in March 2022 
is assessed in a UNHCR position as having led to Palestinian refugees leaving 
UNRWA’s area of operations. Years of conflict and blockades have left 80% of 
the population dependent on international aid, while ongoing conflict and 
divisions exacerbate the humanitarian crisis and problems in providing services on 
the ground. The reduction of UNRWA’s food assistance, the unstable political and 
social environment, the downgrading of the quality of services provided by 
UNRWA’s education programme in Gaza and the airstrikes in May 2021 that 
damaged the agency’s buildings in Gaza all affect and hamper the agency’s efforts 
29 The conclusions regarding the situation in Gaza which are relevant to the 
assessment under the second sentence of Article 1(D) of the Geneva Convention 
on Refugees were reached in accordance with paragraphs 63 to 66 of the UNHCR 
Position on Return to Gaza as at March 2022. On the basis of evidence of serious 
allegations of infringements of international human rights law and international 
humanitarian law, and because of ongoing instability, it was requested that all 
civilians fleeing Gaza be admitted to the territories of states and that compliance 
with the principle of non-refoulement be ensured. According to paragraph 65, 
Palestinian refugees who come within the scope of the first sentence of 
Article 1(D) (that is to say those who receive or are entitled to protection or 
assistance from UNRWA and who subsequently come within the scope of the 
second sentence of Article 1(D) when such protection or assistance ceases) are 
ipso facto entitled to the benefits of the Geneva Convention on Refugees, 
provided that Articles 1(C), 1(E) and 1(F) of the Convention do not apply. 
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Paragraph 65 further expressly states that the situation in Gaza may constitute an 
objective reason for Palestinian refugees from the Gaza Strip to leave UNRWA’s 
area of operations within the scope of application of the second sentence of 
Article 1(D). Asylum claims of Palestinians who do not fall within the scope of 
Article 1D should be adjudicated under Article 1A(2) of the Geneva Convention 
on Refugees. According to UNHCR (paragraph 66 [of the Position of March 
2022]), policies and practices in the context of the continued occupation of Gaza, 
in particular the prolonged blockade as a form of ‘collective punishment’, 
repeated cycles of violence, as well as human rights abuses at the hands of the de 
facto authorities and other non-state actors, may result in a well-founded fear of 
persecution on Convention-related grounds. Palestinians not falling under either 
Article 1D or 1A(2) of the Geneva Convention on Refugees may qualify for 
national or regional forms of subsidiary or complementary protection. UNHCR 
continues to call on States not to forcibly return Palestinians, including Palestinian 
refugees registered with UNRWA in Gaza. The suspension of forcible returns 
serves as a minimum standard and should not replace international protection for 
persons found to meet the criteria for refugee status under Article 1D or 
Article 1A(2). The UNHCR Position also discusses options for the return of 
Palestinians to Gaza, including via the Rafah Border Crossing. 
30 Consequently, return to UNRWA’s area of operations, in particular to the Gaza 
Strip, depends exclusively on the willingness of the Palestinians to return there 
voluntarily. The applicants claim that they cannot return to UNRWA’s area of 
operations. It is obvious that they cannot return to the Gaza Strip voluntarily. 
There is nothing to indicate that they would be allowed to enter and will be 
accepted in the territory of any other State in UNRWA’s area of operations – 
Lebanon, Syria or Jordan. Return to UNRWA’s area of operations must be 
assessed in light of the possibility that a person can benefit ‘from effective 
protection or assistance from UNRWA, thereby enabling him or her to stay there 
in safety, under dignified living conditions’ (paragraph 134 of the judgment in 
Alheto, cited above). The UNHCR Position of March [2022] is clear on this 
point – the situation in Gaza is a ground for both departure and non-return. The 
question arises as to what extent the national court is bound by the assessments in 
the UNHCR Position and whether, in the event of a different assessment, it would 
not arrive at the same situation as that in the M.S.S. case before the [European] 
Court of Human Rights and the subsequent case-law on non-refoulement. 
31 The situation in UNRWA’s area of operations, and more specifically in Gaza, at 
the time of the hearing before the referring court on the action against the refusal 
decision is characterised, in essence, by the following: there is no robust evidence 
that SN and LN could avail themselves of the protection and assistance provided 
by UNRWA in relation to basic necessities, namely food, health services, 
medicines and healthcare. It is evident that UNRWA lacks predictable and 
sufficient funding to provide humanitarian assistance and basic services to 
Palestinian refugees. Funding for urgent appeals is also insufficient, thereby 
undermining the agency’s ability to provide vital assistance to Palestinians. 
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32 Taking these circumstances into account, it is questionable whether the condition 
set out in paragraph 134 of the judgment in Alheto is fulfilled. The [referring] 
court takes the view that the assessment of the possibilities of return under the 
second sentence of Article 12(1)(a) of Directive 2011/95 should also be 
conditional on compliance with the principle of non-refoulement and the 
prohibition of inhuman and degrading treatment, with the result that the 
assessment of the general situation in Gaza should not be excluded. An 
interpretation is therefore required as to whether the applicants’ return to Gaza 
would meet the above conditions, taking into account the general situation in 
Gaza, as described above, and the UNHCR Position on Return to Gaza of March 
2022. The question should also be raised as to whether the same answer [to the 
question] as to whether he or she can be returned should be given in relation to 
every person in such a situation, or whether a different answer is required in the 
case of a vulnerable person, in order also to observe the principle of the best 
interests of the child. If LN, as a minor child, cannot return to Gaza and comes 
within the scope of the second sentence of Article 12(1)(a) of Directive 2011/95, 
should the same legal situation also apply in relation to the mother – the applicant, 
SN, taking into account the principle of the best interests of the child and the 
preservation of family unity[?] 
33 Clarification is also required as to whether the applicants’ personal situation – in 
so far as they rely on UNRWA assistance for food, health services, medicines and 
healthcare – is covered by the interpretation of the concept of extreme material 
poverty under Article 4 of the Charter given in operative part 4 of the judgment of 
19 March 2019, Jawo, C-163/17. 
34 The referring court cites the judgment of the Court of Justice of 25 July 2018, 
C-585/16, Alheto, paragraph 86, as well as the judgment of the Court of Justice of 
3 March 2022, C-349/20, NB, AB, paragraph 51, [and] in particular the finding 
that the possibility of ipso facto application of Directive 2011/95 does not entail 
an unconditional right to refugee status, but, rather, the person must nevertheless 
submit an application for refugee status, which must be examined by the 
competent authorities. In view of the automatic granting of ‘refugee status’ 
claimed in the subsequent application – in the event that the applicants’ legal 
situation comes within the scope of application of the second sentence of 
Article 1(D) of the Geneva Convention on Refugees or the second sentence of 
Article 12(1)(a) of Directive 2011/95, but for reasons under Article 21(1) of 
Directive 2011/95, in conjunction with Article 19 of the Charter – the question 
arises as to how the provision ‘those persons shall ipso facto be entitled to the 
benefits of this Directive’ is to be applied in the present case. 
35 In the event that, first, the principle of non-refoulement under Article 21(1) of 
Directive 2011/95, in conjunction with Article 19 of the Charter, is applicable in 
relation to the first person concerned – a stateless Palestinian – because in the 
event of his return to his country of origin, namely to Gaza City, he would be 
exposed to the risk of inhuman and degrading treatment due to the possibility of 
being placed in a situation of extreme material poverty, that finding is relevant for 
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the granting of subsidiary protection under Article 15[(b)] of Directive 2011/95 or 
humanitarian status under national law under point 2 of Article 9(1) of the ZUB. 
36 In the event that, second, the established basis under Article 15[(b)] of Directive 
2011/95, in conjunction with Article 19 of the Charter, is not relevant, the 
interpretation given by the Court in operative part 2 of the judgment of 
19 December 2012, Abed El Karem El Kott and Others, C-364/11, as well as in 
paragraph 81 of the explanatory notes on the interpretation of the second sentence 
of Article 12(1)(a) of Directive 2004/83/EC, the wording of which is identical to 
that of the second sentence of Article 12(1)(a) of Directive 2011/95, must be 
applied on the basis of the second sentence of Article 12(1)(a) of Directive 
2011/95; that interpretation reads as follows: ‘the fact that that person is ipso facto 
“entitled to the benefits of [the] directive” means that that Member State must 
recognise him as a refugee within the meaning of Article 2(c) of the directive and 
that person must automatically be granted refugee status, provided always that he 
is not caught by Article 12(1)(b) or (2) and (3) of the directive.’ 
37 However, the [referring] court takes the view that the latter is not unconditionally 
applicable, since the case at issue does not concern a departure from UNRWA’s 
area of operations because of a serious threat to personal security, but rather [a 
departure] for reasons related to the general situation in the Gaza Strip. With 
regard to the reason for departing the agency’s area of operations, the wording of 
the provision states ‘for any reason’, with the result that reasons within the 
meaning of Article 15 of Directive 2011/95, in conjunction with Article 19 of the 
Charter, are also relevant. 
38 Moreover, [the expression] ‘benefits of this Directive’ is not expressly linked to 
the granting of refugee status. It is only in the event of a narrow interpretation 
with regard to the purpose of the Geneva Convention on Refugees and in relation 
to the recognition of persons as refugees under Article 1(A) of the Convention, in 
so far as it provides only for refugee status, that the second sentence of 
Article 12(1)(a) of Directive 2011/95 can also be given a narrow interpretation. 
That question is also useful in order to avoid discrimination and the granting of a 
more favourable status solely on the basis of a stateless Palestinian’s registration 
with UNRWA. Accordingly, a stateless Palestinian who is not registered with 
UNRWA and who has left the Gaza Strip in the same circumstances would have 
to be granted subsidiary protection under Article 15[b] of Directive 2011/95. 
39 The [referring] court is not aware of any case-law of the Court of Justice from 
which it could derive a clear answer to the questions of law which it is required to 
resolve in the dispute before it. The need for an interpretation under Article 267 
TFEU also follows from the principle of legal certainty with a view to ensuring 
uniform enforcement of the EU asylum law and guaranteeing the right to asylum 
under Article 18 of the Charter, as well as from the effective implementation of 
EU law.