Opinion of the Advocate General — ECLI:EU:C:2023:388
Date: 2023-05-04
Language of the case: French
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation C-294/22 – 1 
Case C-294/22 
Request for a preliminary ruling 
Date lodged:  
3 May 2022 
Referring court:  
Conseil d’État (France) 
Date of the decision to refer:  
22 March 2022 
Applicant:  
Office français de protection des réfugiés et apatrides (OFPRA) 
Defendant:  
SW 
  
[…] SW applied to the Cour nationale du droit d’asile (National Asylum Court, 
France) to annul the decision of 11 October 2019 by which the Director-General 
of the Office français de protection des réfugiés et apatrides (Office for the 
protection of refugees and stateless persons, France) (OFPRA) rejected his 
application for asylum and for recognition as a refugee or, otherwise, for 
subsidiary protection. 
By Decision No 20016437, 20005472 of 9 December 2020, the National Asylum 
Court upheld his action and recognised him as a refugee. 
On appeal […], OFPRA applied to the Conseil d’État (Council of State, France) 
to: 
(1) set aside that decision; 
(2) refer the case back to the National Asylum Court. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 3. 2022 – CASE C-294/22 
 
2  
Anonymised version 
OFPRA claims that the National Asylum Court: 
– provided an insufficient statement of reasons in its decision and erred in law by 
failing to examine whether the person concerned had been forced to leave the 
area of operations of the United Nations Relief and Works Agency for 
Palestine refugees in the Near East (UNRWA) because of threats to his safety: 
– erred in law by finding that the fact that it was impossible for UNRWA to fund 
tertiary healthcare appropriate to the state of health of a Palestinian refugee is a 
ground for ending the effective protection of that agency, thereby entitling the 
refugee to claim the benefit of the Geneva Convention; 
– erred in law and distorted the documents in the case file by finding that 
UNRWA had to be considered unable to perform its assistance mission, 
whereas paying for tertiary healthcare is not part of that mission and it was not 
established that the person concerned could not be given appropriate treatment 
in Lebanon. 
[…] 
Whereas: 
1. It can be seen from documents in the case file before the trial court that SW, 
who is of Palestinian origin, born in 1976 […] in Lebanon, lived in Lebanon until 
he left that country in February 2019 and arrived in France on 11 August 2019. By 
a decision of 11 October 2019, the Director-General of OFPRA rejected his 
application to be recognised as a refugee. OFPRA has appealed on a point of law 
against the decision of 9 December 2020 by which the National Asylum Court 
annulled that decision and recognised SW as a refugee.  
2. First, under the first subparagraph of Article 1(A)(2) of the Geneva 
Convention relating to the status of refugees of 28 July 1951, the term ‘refugee’ is 
to apply to any person who ‘owing to well-founded fear of being persecuted for 
reasons of race, religion, nationality, membership of a particular social group or 
political opinion, is outside the country of his nationality and is unable or, owing 
to such fear, is unwilling to avail himself of the protection of that country; or who, 
not having a nationality and being outside the country of his former habitual 
residence … is unable or, owing to such fear, is unwilling to return to it’. 
Article 1(D) of that convention nevertheless states that: ‘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 definitively 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.’ 
OFPRA 
 
3 
Anonymised version 
3. The United Nations Relief and Works Agency for Palestine refugees in the 
Near East (UNRWA) was created by United Nations General Assembly 
Resolution No 302 (IV) of 8 December 1949 in order to provide direct relief to 
‘Palestine refugees’ present in any of the States or territories within its 
geographical area of operations, that is to say, Lebanon, Syria, Jordan, the West 
Bank and the Gaza Strip. According to United Nations General Assembly 
Resolution No 74/83 of 13 December 2019 on UNRWA, which extended its 
mandate until 30 June 2023, the agency’s operations are conducted for ‘the well-
being, protection and human development of the Palestine refugees’ and seek to 
meet their ‘basic health, education and living needs’. It can be seen from the 
Consolidated Eligibility and Registration Instructions adopted by that agency in 
2009 that those services are provided (i) to persons, registered with the agency, 
whose normal place of residence was Palestine during the period 1 June 1946 to 
15 May 1948 and who lost both home and means of livelihood as a result of the 
1948 conflict, and their descendants and (ii) to the other eligible persons referred 
to in section III/ B of those Instructions, not registered by UNRWA, who request 
those services. In the light of the mission assigned to it, UNRWA must be 
regarded as a United Nations agency other than the United Nations High 
Commissioner for Refugees, which provides assistance to those persons within the 
meaning of the provisions referred to in paragraph 2. 
4. The provisions cited in paragraph 2 show that the Geneva Convention of 
28 July 1951 does not apply to a Palestinian refugee so long as that person is 
effectively entitled to the assistance or the protection of UNRWA as it is defined 
in the preceding paragraph. 
5. Furthermore, according to Article 12(1) of 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: ‘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 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’. 
6. In its judgment of 19 December 2012, Abed El Karem El Kott and Others, 
C-364/11, EU:C:2012:826, the Court of Justice of the European Union held that 
the second sentence of Article 12(1)(a) of Council Directive 2004/83 of 29 April 
2004, which is reproduced exactly in the provisions of Directive 2011/95/EU 
referred to above, ‘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 
REQUEST FOR A PRELIMINARY RULING OF 22. 3. 2022 – CASE C-294/22 
 
4  
Anonymised version 
availing himself of such protection or assistance, ceases to receive it for a reason 
beyond his control and independent of his volition’ and that ‘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.’ 
The Court added that ‘where the competent authorities of the Member State 
responsible for examining the application for asylum have established that the 
condition relating to the cessation of UNRWA protection or assistance is satisfied 
as regards the applicant, 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 … and that person must automatically be granted refugee status, provided 
always that he is not caught by Article 12(1)(b) or Article 12(2) and (3) of the 
directive’. 
7. It is apparent from the statements contained in the contested decision that, in 
concluding that SW was automatically entitled to refugee status, the National 
Asylum Court considered it to have been established that it was impossible for 
UNRWA to provide him with sufficient access to tertiary healthcare, which relates 
to the most serious illnesses, and to the drug on which he depends to survive and, 
therefore, to guarantee him living conditions commensurate with its assistance 
mission, placing his personal safety at such serious risk that he was forced to leave 
Lebanon. OFPRA submits that the decision of the National Asylum Court was 
vitiated by errors of law because it failed to examine whether the person 
concerned was forced to leave UNRWA’s area of operations by threats to his 
safety; found that the fact that it was impossible for UNRWA to fund tertiary 
healthcare appropriate to the state of health of a Palestinian refugee is a ground for 
ending the effective protection of that agency, thereby entitling the refugee to 
claim the benefit of the Geneva Convention; and held that UNRWA should be 
considered to be unable to fulfil its assistance mission whereas paying for tertiary 
care forms only part of that mission. 
8. The answer to be given to the grounds of appeal raised depends on whether, 
irrespective of the provisions of national law according to which, under certain 
circumstances, foreign nationals can be allowed to stay on account of their state of 
health, and which where necessary protect them from an expulsion order, 
Article 12(1)(a) of Directive 2011/95/EU must be interpreted as meaning that 
where a sick Palestinian refugee, after actually availing himself of UNRWA 
protection or assistance, leaves the State or territory in the area of operations of 
that agency in which he had his habitual residence because he cannot have 
sufficient access there to the care and treatment required by his state of health and 
because that failure to provide care and treatment presents a genuine risk to his 
life or physical integrity, there is reason to consider that his personal safety is at 
serious risk and that he is in a situation in which it is impossible for UNRWA to 
OFPRA 
 
5 
Anonymised version 
guarantee that his living conditions will be commensurate with the mission 
entrusted to it. If the answer is in the affirmative, it is then necessary to determine 
the criteria for identifying such a situation, concerning for example the seriousness 
of the illness or the nature of the care needed. 
9. The questions set out in paragraph 8 are decisive for resolution of the 
dispute to be resolved by the Council of State and present serious difficulties in 
interpreting EU law. It is therefore appropriate to make a reference to the Court of 
Justice of the European Union under Article 267 of the Treaty on the Functioning 
of the European Union and to stay the proceedings on OFPRA’s appeal pending a 
ruling on all those questions. 
HEREBY DECIDES: 
[…] Proceedings on the appeal brought by the Office français de protection des 
réfugiés et apatrides (Office for the protection of refugees and stateless persons, 
France) are stayed until the Court of Justice of the European Union rules on the 
following questions: 
1. Irrespective of the provisions of national law according to which, under 
certain circumstances, foreign nationals can be allowed to stay on account of their 
state of health, and which where necessary protect them from an expulsion order, 
must Article 12(1)(a) of Directive 2011/95/EU be interpreted as meaning that 
where a sick Palestinian refugee, after actually availing himself of UNRWA 
protection or assistance, leaves the State or territory in the area of operations of 
that agency in which he had his habitual residence because he cannot have 
sufficient access there to the care and treatment required by his state of health and 
because that failure to provide care and treatment presents a genuine risk to his 
life or physical integrity, there is reason to consider that his personal safety is at 
serious risk and that he is in a situation in which it is impossible for UNRWA to 
guarantee that his living conditions will be commensurate with the mission 
entrusted to it? 
2. If the answer is in the affirmative, what are the criteria for identifying such a 
situation, concerning for example the seriousness of the illness or the nature of the 
care needed? 
[signatures] […]