OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 4 March 2010 ( )

Case C‑31/09

Nawras Bolbol

v

Bevándorlási és Állampolgársági Hivatal

(Reference for a preliminary ruling from the Fővárosi Bíróság (Hungary))

(Minimum conditions to be fulfilled by persons from third countries or stateless persons in order to be able to claim refugee status – Stateless person of Palestinian origin – Conditions under which refugee status is accorded – Article 12(1)(a) of Directive 2004/83/EC)

1. The humanitarian challenge of how to care for persons who have lost home and livelihood as a result of conflict has been with us since men first learnt to make weapons and use them against their neighbours. Individuals and groups of individuals in that situation need and deserve assistance and protection. Unfortunately, particular forms of conflict generate very large numbers of such persons. More prosperous or stable countries to which they make their way to seek asylum cannot necessarily deal easily with the influx, particularly in the immediate aftermath of yet another conflagration, without potentially jeopardising their own prosperity and stability. Preferential treatment of any particular class or group of refugees, for whatever reason, will therefore – if not kept in proportion and balance – come at the expense of appropriate treatment for other persons who, from an objective humanitarian perspective, are equally deserving.

2. The international community has therefore laid down, in the Geneva Convention of 28 July 1951 Relating to the Status of Refugees, ( ) binding rules of international humanitarian law that delineate who, in what circumstances, is to be treated as a refugee and how they are to be cared for. All EU Member States are signatories to that Convention. At EU level, their obligations are reflected in Directive 2004/83. ( )

3. The present reference from the Fővárosi Bíróság (Budapest Metropolitan Court) under the former Article 68 EC concerns the circumstances in which, under Directive 2004/83, a Member State can or must accord refugee status to a Palestinian who has sought asylum within that Member State.





International Law

The 1951 Convention

4. The preamble to the 1951 Convention recalls that the Charter of the United Nations and the Universal Declaration of Human Rights have affirmed the principle that all human beings are to enjoy fundamental rights and freedoms without discrimination, and notes that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms. At the same time, the preamble notes that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem whose international scope and nature the United Nations had recognised cannot be achieved without international co-operation. The preamble expresses the wish that all States, recognising the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States.

5. Article 1A of the 1951 Convention sets out the detailed criteria for assessing whether an individual should be granted refugee status:

‘For the purposes of the present Convention, the term “refugee” shall apply to any person who:

…

(2) 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.

…’ ( )

6. Article 1C provides for various circumstances in which the Convention ceases to apply to a person who qualified for refugee status under Article 1A – essentially, because he either no longer needs, or should no longer need, its protection.

7. Article 1D (whose interpretation is critical to the present reference) reads as follows:

‘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.’

8. Article 38 provides that, at the request of a Party, the International Court of Justice ( ) is to adjudicate on any dispute between Parties to the Convention as to its interpretation or application.





UN General Assembly Resolutions relating to the situation in Palestine ( )

9. In the aftermath of the events of World War II and specifically the Holocaust, the United Nations agreed to the proposals of the United Nations Special Committee on Palestine ( ) to partition Palestine (Resolution 181 (II) of 29 November 1947). On 14 May 1948, the State of Israel was proclaimed. There immediately followed what subsequent UN resolutions describe as ‘the 1948 conflict’. By Resolution 273 (III) of 11 May 1949, the United Nations admitted the State of Israel to membership of that organisation.

10. As a result of the 1948 conflict, many Palestinians became displaced persons. Resolution 212 (III) of 19 November 1948 set up the United Nations Relief for Palestinian Refugees to provide immediate temporary assistance for such persons. By General Assembly Resolution 302 (IV) of 8 December 1949, the United Nations established the United Nations Relief and Works Agency for Palestine Refugees in the Near East. ( )

11. UNRWA’s mandate has been renewed every three years since its creation in 1949. Its current mandate is due to expire in 2011. ( ) Its area of operations comprises five ‘fields’: Lebanon, the Syrian Arab Republic, Jordan, the West Bank (including East Jerusalem) and the Gaza Strip. ( )





The Consolidated Eligibility and Registration Instructions (CERI)

12. The CERI issued by UNRWA define ‘persons who meet UNRWA’s Palestine Refugee criteria’ as ‘persons 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’. ( ) Certain other persons, whilst not meeting UNRWA’s Palestinian Refugee criteria, are also eligible to receive UNRWA’s services. ( ) UNRWA groups these two categories together as persons ‘who are eligible to receive UNRWA’s services upon being registered in the Agency’s Registration System and obtaining an UNRWA Registration Card as proof of registration’. ( )

13. There are, moreover, certain other categories of person who are eligible to receive UNRWA services without being registered in UNRWA’s Registration System. ( ) These include ‘non-registered persons displaced as a result of the 1967 and subsequent hostilities’ ( ) and ‘non-registered persons who live in refugee camps and communities’. ( )





The Statute of the Office of the UNHCR

14. The Office of the United Nations High Commissioner for Refugees ( ) was created on 14 December 1950 by Resolution 428 (V) of the United Nations General Assembly. The UNHCR is a subsidiary organ of the United Nations under Article 22 of the UN Charter. The functions of the Office of the UNHCR are defined in its Statute. ( )

15. Article 6 of the Statute sets out the scope of the UNHCR’s competence. Under Article 7(c), however, that competence does not extend to a person who continues to receive from other organs of agencies of the United Nations protection or assistance.





UNHCR statements

16. The UNHCR occasionally makes statements which have persuasive, but not binding, force. ( ) His Office has published various statements which relate to the interpretation of Article 1D of the 1951 Convention: a commentary in its Handbook on procedures and criteria for determining refugee status under the 1951 Convention and the 1967 Protocol, a note published in 2002 (and revised in 2009) and a 2009 statement (also subsequently revised) which relates expressly to Ms Bolbol’s case. I intend to treat this last as an unofficial amicus curiae brief.





The UNHCR Handbook

17. The Handbook defines Article 1D as a provision whereby persons otherwise having the characteristics of refugees are excluded from refugee status. It states that exclusion under this clause applies to any person who is in receipt of protection or assistance from UNRWA, observing that UNRWA operates only in certain areas of the Middle East, and that it is only there that its protection or assistance are given. ( ) Thus, a refugee from Palestine who finds himself outside that area does not enjoy the assistance mentioned and may be considered for determination of his refugee status under the criteria of the 1951 Convention. The Handbook then states that it should normally be sufficient to establish that the circumstances which originally qualified him for protection or assistance from UNRWA still persist and that the cessation and exclusion clauses ( ) do not apply to him.





The 2002 note

18. In its 2002 note, ( ) the UNHCR approaches the two sentences of Article 1D as alternative rather than cumulative. In its view, Article 1D applies to Palestinian refugees within the meaning of Resolution 194 (III) of 11 December 1948 or displaced persons within the meaning of Resolution 2252 (ES-V) of 4 July 1967. ( ) Those living in the UNRWA zone who are either registered, or who are eligible to be registered, with the agency ( ) should be considered to be receiving protection and assistance from UNRWA, and thus fall into the first sentence of Article 1D and outside the scope of the 1951 Convention.

19. The UNHCR regards the second sentence of Article 1D as giving automatic entitlement to the benefits of the 1951 Convention to persons who are outside the UNRWA zone, ( ) but who are nonetheless Palestinian refugees within the meaning of Resolution 194 (III) of 11 December 1948 or displaced persons within the meaning of Resolution 2252 (ES-V) of 4 July 1967. This includes persons who have never resided in the UNRWA zone and who therefore fall within the competence of the UNHCR. ( ) However, such persons can also return (or be returned) to the UNRWA zone. ( ) If so, they will come within the first sentence of Article 1D.





The 2009 note

20. The 2009 note similarly takes as its starting point the wording of Resolutions 194 (III) and 2252 (ES-V). The UNHCR regards ‘receiving’ in the first sentence of Article 1D as including ‘being eligible to receive’ protection and assistance from UNRWA; and notes that to be in a position to receive such assistance, the persons concerned must be in the UNRWA zone. ( ) As regards the second sentence of Article 1D, the UNHCR adds to the arguments in its 2002 note the observation that, in its view, ‘ceased for any reason’ includes circumstances where a particular person, previously registered with UNRWA, has travelled outside the UNRWA zone. ( )





European Union law

EC Treaty

21. Article 63 EC ( ) provides that:

‘The Council … shall … adopt:

1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties …

…’





Joint Position 96/196/JHA

22. Article 12 of the Joint Position ( ) is entitled ‘Article 1D of the Geneva Convention’. It reads as follows:

‘Any person who deliberately removes himself from the protection and assistance found in Article 1D of the Geneva Convention is no longer automatically covered by that Convention. In such cases, refugee status is in principle to be determined in accordance with Article 1A.’





Directive 2004/83

23. The Tampere Council laid the foundations for the programme of European legislation relating to the area of freedom, security and justice in the EU known as the Hague Programme. Directive 2004/83 is part of that programme. It sets out minimum standards for the qualification and status of third country nationals or stateless persons, either as refugees or as persons entitled to a subsidiary form of protection (such as a non-refoulement order).

24. Recital 3 in the preamble to Directive 2004/83 notes that ‘[t]he Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees’. Recital 6 states that ‘[t]he main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States’.

25. Article 2(c) of the Directive mirrors the first paragraph of Article 1A(2) of the 1951 Convention. It defines ‘refugee’ as a ‘third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply’.

26. Chapter III of the Directive deals with qualification for being a refugee. Article 12, found in that Chapter, reflects Article 1D of the 1951 Convention. More particularly, Article 12(1)(a) mirrors Article 1D of the Convention and reads as follows:

‘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 1D 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, these persons shall ipso facto be entitled to the benefits of this Directive’.

27. Article 13 of the Directive provides that refugee status is to be granted to ‘a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II [assessment of applications for international protection] and III [qualification for being a refugee]’.

28. Chapters V and VI of the Directive deal, respectively, with qualification for, and the status of, subsidiary protection. In particular, Article 18 provides for the grant of subsidiary protection status to a third country national or stateless person eligible for subsidiary protection in accordance with Chapters II and V.

29. Article 38(1) provides that the Directive is to be transposed into national law before 10 October 2006. At the time of the facts giving rise to this reference, Article 12(1)(a) of the Directive had not been transposed into national law in Hungary, although the deadline for transposition has passed. The parties to the national proceedings both take the view that Article 12(1)(a) of the Directive is sufficiently clear, precise and unconditional to be relied on directly by an applicant as against the competent national authority.





Facts, procedure and questions referred

30. On 10 January 2007 Ms Bolbol, a stateless Palestinian, arrived in Hungary together with her spouse on a visa from the Gaza Strip. Upon arrival, she applied for and received a residence permit from the authority responsible for foreign nationals. On 21 June 2007 she applied to the Bevándorlási és Állampolgársági Hivatal (Immigration and Citizenship Office; ‘the BAH’) for refugee status because, in the event that the authority did not extend her residence permit, she did not want to return to the Gaza Strip, which she stated was unsafe on account of the conflict between Fatah and Hamas.

31. Ms Bolbol’s application was made under the second paragraph of Article 1D of the 1951 Convention, on the basis that she is a Palestinian residing outside the UNRWA zone. Only her father remains in the Gaza Strip, where he works as a university lecturer. All her other family members have emigrated.

32. It is common ground that Ms Bolbol did not actually avail herself of UNRWA’s protection or assistance whilst in the Gaza Strip. Her claim is based on her entitlement to such protection. She presented in support of her claim an UNRWA registration card issued to the family of her father’s first cousin. However, the BAH disputes the existence of a family connection in the absence of any direct documentary evidence. UNRWA has not expressly confirmed whether she would be entitled to be registered. ( )

33. By decision of 14 September 2007 the BAH refused Ms Bolbol’s application for refugee status. ( ) At the same time it placed Ms Bolbol under the protection of a non-refoulement order, ( ) on the grounds that the readmission of Palestinians is at the discretion of the Israeli authorities, and that Ms Bolbol would be exposed to the risk of torture or inhuman and degrading treatment in the Gaza Strip on account of the conditions there.

34. Ms Bolbol challenged the BAH’s decision rejecting her claim for refugee status before the Fővárosi Bíróság, which stayed the proceedings and referred the following questions to the Court:

‘For the purposes of Article 12(1)(a) of Council Directive 2004/83/EC:

1. Must someone be regarded as a person receiving the protection and assistance of a United Nations agency merely by virtue of the fact he is entitled to assistance or protection or is it also necessary for him actually to avail himself of that protection or assistance?

2. Does cessation of the agency’s protection or assistance mean residence outside the agency’s area of operations, cessation of the agency and cessation of the possibility of receiving the agency’s protection or assistance or, possibly, an objective obstacle such that the person entitled thereto is unable to avail himself of that protection or assistance?

3. Do the benefits of this directive mean recognition as a refugee, or either of the two forms of protection covered by the directive (recognition as a refugee and the grant of subsidiary protection), according to the choice made by the Member State, or, possibly, neither automatically but merely inclusion in the scope ratione personae of the directive?’

35. Written observations were submitted by Ms Bolbol, the Belgian, German, French, Hungarian and United Kingdom Governments and the Commission. All but the United Kingdom Government attended the hearing and presented oral argument on 20 October 2009.





Analysis

The Directive and the 1951 Convention

36. Although the European Union as such is not a signatory to the Convention, Article 63(1) EC expressly provides that the common policy on asylum must be adopted in accordance with the 1951 Convention and the 1967 Protocol. Directive 2004/83, whose legal base is Article 63(1) EC, describes the 1951 Convention in its preamble as a ‘cornerstone’ in the protection of refugees. The Directive is plainly intended to give effect, through common Community rules, to the Member States’ international obligations. The provisions of the Directive must, therefore, be interpreted in a manner which is consistent with the 1951 Convention. ( )

37. The International Court of Justice has not yet ruled on the interpretation of Article 1D of the 1951 Convention, although the UNHCR has expressed its views on the subject. ( ) A (non-exhaustive) examination of pertinent decisions by national courts of Member States shows a striking disparity, both in approach and in result ( ) (reflected in the observations presented by the Member States that have intervened in these proceedings). None of these interpretations are, of course, binding on the Court.

38. In order to answer the questions referred by the national court, I find it both logical and helpful first to analyse Article 1D of the Convention, before returning to apply that analysis within EU law. ( )

39. It is also essential to be clear about the ambit of the present case. Both Article 12(1)(a) of Directive 2004/83 and Article 1D of the 1951 Convention refer, in general terms, to ‘protection or assistance’ from ‘organs or agencies’ of the UN. However, Ms Bolbol’s claim before the national court is based on her claim to be entitled to receive UNRWA assistance; and the observations of all parties before the Court have addressed the issues exclusively by reference to the role of UNRWA (rather than more generally). I shall therefore follow that approach in this Opinion.

40. I shall therefore look first at the historical background to the drafting of Article 1D of the 1951 Convention (together with the travaux préparatoires). ( ) Next, I shall set out the guiding considerations that I believe to be applicable, before examining the specific points of interpretation that need to be addressed. Finally, I shall revert to Directive 2004/83 and deal, in sequence, with the questions referred.





The historical background and the travaux préparatoires

41. The drafting of the 1951 Convention took place against the background of recent conflict, devastation and displacement of population. World War II had left large numbers of displaced persons in Europe. A separate but related chain of events had led, with the participation of the international community, to the partition of Palestine, followed by the declaration of the State of Israel. In the regional conflict that both preceded and followed that event, a significant number of persons were displaced.

42. Since Article 1D is formulated in general terms, it is potentially applicable to any situation in which other ‘organs or agencies’ of the UN are providing ‘protection or assistance’ to persons who would otherwise fall within the scope ratione personae of the 1951 Convention. Indeed, the UN had recently started to provide specific assistance in conjunction with the conflict in Korea. ( ) That said, the travaux préparatoires make it clear that the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons ( ) had the situation in Palestine uppermost in its mind when drafting Article 1D.

43. The minutes of the Conference of Plenipotentiaries appear to reflect three principal concerns: ( ) first, the need to prevent a mass exodus from the geographical area that had been Palestine; ( ) second, the desire of certain States to maintain the political visibility of persons displaced by the events of 1948; ( ) and third, the need to avoid an overlap of competences between the UNHCR and UNRWA. ( ) All those concerns focus (for historical reasons) on the consequences, in terms of displaced persons requiring assistance, of the situation in Palestine. In analysing Article 1D for the purposes of the present proceedings, I shall therefore take that to be the historical starting point.

44. The travaux préparatoires also appear to address the displacement of Palestinians as, essentially, an issue affecting a group of persons. ( ) However, whilst it is the category of displaced Palestinians that historically formed the subject-matter of Article 1D, the provision itself must be read in a way that renders it intelligible and applicable to an individual. Such an approach reflects the fact that international law as a whole places a high value on the right to self-determination (a collective right for groups of persons), ( ) but that, at the same time, international humanitarian law is founded on the principles of respect for the person and for the individuals within a group. ( )

45. The negotiated compromise that became Article 1D is one that singles out, in particular, displaced Palestinians for special consideration and, in some respects, special protection within the overall framework of international refugee law.

46. Although it is a short provision, Article 1D is replete with unanswered questions. At least four broad areas of opacity can be distinguished – two arising from the first sentence and two from the second – that must be resolved in order to answer the questions referred to the Court in the present proceedings. ( )

47. First, what is meant, in a geographical and/or temporal sense, by ‘persons who are at present receiving … protection or assistance’? Second, do such persons have to be in actual receipt of protection or assistance, or does it suffice that they would be entitled to receive it? (As a sub-question, relevant specifically to the interpretation of the Directive and the proceedings before the national court: what is the effect of formal registration with UNRWA? Is it substantive, or merely evidentiary?) Third, in what circumstances should one consider that ‘such protection or assistance has ceased for any reason’? Fourth, what meaning is to be attributed to the phrase ‘these persons shall ipso facto be entitled to the benefits of this Convention’?





Guiding considerations

48. As the written and oral submissions to the Court have made clear, the actual text of Article 1D is capable of supporting a wide variety of different meanings. I therefore think it essential to set out, clearly and unambiguously, the principles that guide my thinking.

49. First, all genuine refugees deserve protection and assistance. An interpretation that would lead to a gap in protection for any such person is therefore, a priori, to be rejected.

50. Second, the historical intention behind Article 1D was clearly to give some form of special treatment and consideration to displaced Palestinians. ( )

51. Third, whatever the initial hopes of the General Assembly (as reflected in 1951 by the draftsmen of the Convention) that UNRWA would need to deal only with temporary provision of assistance, the problems associated with the situation in Palestine have proved intractable over the succeeding decades, as the successive renewals of UNRWA’s mandate have demonstrated. The 1967 Protocol likewise reflects the unhappy reality that refugee problems requiring to be addressed under the 1951 Convention are not confined to those caused by events occurring before 1 January 1951. Thus, the original intention of the draftsmen of the Convention must be coloured by the reality of subsequent history.

52. Fourth, the Convention draftsman intended displaced Palestinians who were receiving the special treatment and consideration expressly put in place to care for them (assistance from UNRWA) not to be able to apply for refugee status under the Convention, as overseen by the UNHCR (hence the first sentence of Article 1D). Whilst they are being cared for by UNRWA, such persons are excluded ratione personae from the Convention.

53. Fifth, as a corollary to (or possibly by way of compensation for) that exclusion, under certain circumstances, displaced Palestinians falling within the second sentence of Article 1D are ipso facto entitled to the benefits of the Convention (and not merely to cease to be excluded from its scope on cessation of protection or assistance from UNRWA). The very presence of the second sentence implies a greater consequence than that, when its specific conditions are fulfilled, such persons merely join the queue with every other potential applicant for refugee status under Article 1A.

54. Sixth, the concept of ‘cessation of protection or assistance’ by a UN organ or agency other than the UNHCR (here, UNRWA) cannot be construed in a way that would result in such persons being, effectively, trapped in the UNRWA zone, unable (even if forcibly separated from UNRWA assistance) to leave and claim refugee status elsewhere until the situation in ‘Palestine problem’ is entirely resolved and UNRWA wound up. Such an outcome would be wholly unacceptable.

55. Seventh, because all genuine refugees should be able to obtain protection or assistance but the capacity of States to absorb refugees is not infinite, Article 1D cannot be interpreted either as entitling every displaced Palestinian, whether or not actually being or having been in receipt of UNRWA assistance, to leave the UNRWA zone voluntarily and claim automatic refugee status elsewhere. Such an interpretation would provide disproportionately favourable treatment for displaced Palestinians at the expense of other genuine applicants for refugee status displaced by other conflicts in the world.

56. Finally, the two sentences that comprise Article 1D are meant together to address the concern to provide special treatment and consideration for persons displaced by the situation in Palestine. Because the first sentence on its own was deemed insufficient, the second sentence was added. It therefore seems reasonable to read the two sentences (and hence their component elements) consecutively, not disjunctively; ( ) and to seek a reading for the provision as a whole that strikes a reasonable balance between caring for displaced Palestinians (under Article 1D) and caring for other potential refugees (under the 1951 Convention as a whole).

57. I now turn to consider in detail the four points of interpretation ( ) which are raised by the questions from the referring court.

(i) The meaning of ‘persons who are at present receiving … protection or assistance’

58. The words ‘at present receiving’ are limitative in two senses. First, the practicalities of receiving protection or assistance from UNRWA suggest a limitation of place. ( ) Second, the words ‘at present’ and the use of the present tense suggest a limitation in time. ( )





Limitation of place

59. In order to receive protection or assistance from a UN organ or agency other than the UNHCR, a person must be in a place where such protection and assistance is physically available. Assistance from UNRWA is obtainable only in the UNRWA zone. Consequently, as the UNHCR has stated, for present purposes a person will only come within the first sentence of Article 1D when he is resident in the UNRWA zone.

60. The Belgian Government suggests that, in consequence, the whole of Article 1D must be limited to persons who are within the UNRWA zone. It seems to me that, however, in law, neither of the two sentences that together comprise Article 1D is limited geographically in any way. It is merely the practical realities of receiving UNRWA assistance that produce the apparent geographical limitation in the first sentence. It follows that an individual who leaves the UNRWA zone should, in certain circumstances, be able to invoke the specific rights conferred by the second sentence of Article 1D, wherever he may be.

61. I emphasise, furthermore, that the two sentences of Article 1D must be read consecutively. Thus, when an individual seeks to claim rights under the second sentence of Article 1D, it is necessary first to find out whether he was initially within the first sentence of that article. If he was not, he was not previously excluded ratione personae from the scope of the Convention. Rather, he – like any other potential refugee – can apply for individual assessment under Article 1A. ( )





Limitation in time

62. The United Kingdom argues that the use of the words ‘at present’ refers to 1951, when the Convention was drafted. It submits that the drafting parties had in mind only the group of persons identified as already receiving assistance and protection from UNRWA when the Convention came into force.

63. Ms Bolbol’s position is to the effect that any person who has ever received ( ) assistance from UNRWA falls within the exclusion clause in the first sentence of Article 1D. ( )

64. The Commission and Hungary interpret the words ‘presently receiving’ as meaning receiving at the time immediately preceding an application for refugee status under Article 1D.

65. In my view, the interpretation proposed by the United Kingdom is more rigid than the text will allow, particularly in the light of the 1967 Protocol and the repeated renewals of UNRWA’s mandate.

66. I accept that in 1951 the drafting parties may have been thinking principally of persons who were, at that point, already receiving protection or assistance from other ‘organs and agencies’ of the United Nations (such as UNRWA). However, since then many additional persons (both the descendants of those originally displaced and new displaced persons) have been assisted and protected by that organisation. Indeed, the amendments to the Convention made by the 1967 Protocol clearly express the international community’s recognition that situations giving rise to applications for refugee status did not, unfortunately, cease at a particular moment in history.

67. Applying that same logic here, it follows that the United Kingdom’s restrictive reading of the first sentence of Article 1D cannot be correct. A restrictive reading is likewise difficult to reconcile with UNRWA’s own guidelines (CERI), which offer assistance not only to persons displaced by the events of 1948, but (for example) to ‘non-registered persons displaced as a result of the 1967 and subsequent hostilities’. ( )

68. Furthermore, Article 7 of the UNHCR’s Statute excludes from UNHCR competence any ‘person … who continues to receive from other organs or agencies of the United Nations protection or assistance …’. On the (not unreasonable) twin assumptions that (a) UNRWA is providing assistance to a greater number of persons now than in 1951 and that (b) many of those who received UNRWA assistance in 1951 have since died, it seems to me that a restrictive reading of the first sentence of Article 1D is likely to give a lower level of special treatment and consideration to displaced Palestinians than the United Nations intended.

69. However, in my own view the broad temporal scope of Ms Bolbol’s approach goes too far the other way. Only those who are initially excluded from the scope of the Convention by the first sentence of Article 1D are potential beneficiaries of the special treatment envisaged by the second sentence of that provision. ( ) A balanced approach to the interpretation of Article 1D as a whole thus requires one neither artificially to inflate the size of the excluded group defined by the first sentence (beyond those ‘at present receiving’ non-UNHCR protection or assistance) nor to be over-expansive as to the circumstances in which members of that group will qualify for the benefits conferred by the second sentence.

70. It follows that some limitation in time is necessary. I therefore read ‘at present receiving’ protection or assistance in the first sentence of Article 1D as meaning, at any particular point in time, ‘persons who are currently receiving protection or assistance from UN organs or agencies other than the UNHCR’. Such persons are excluded from the Convention because they do not need its protection.





(ii) Actual or potential receipt?

71. The second point of interpretation is whether the person concerned must actually have benefited from assistance or protection, or whether it suffices that he is potentially entitled so to benefit.

72. In my view, the first sentence of Article 1D covers only persons who have actually availed themselves of the protection or assistance of an organ or agency other than the UNHCR.

73. First, the wording of the first sentence uses the expression ‘receiving’ rather than ‘is entitled to receive’. ( ) Here, I agree with the United Kingdom that to read ‘receiving’ as ‘entitled to receive’ is to read in something which is plainly not in the text.

74. Second, the first sentence of Article 1D is a derogation from the general principle that the protection ratione personae given by the Convention is universal, ( ) inasmuch as it excludes a particular category of persons from the scope of the Convention. As such, it should presumably be interpreted strictly rather than expansively. ( )

75. Third, a strict reading also chimes in with the idea that such persons (who will subsequently, if necessary, be able to claim the special rights set out in Article 1D, second sentence) are not acting of their own volition, but are being swept along by events over which they have no control, ( ) inasmuch as the decision whether to give assistance to any particular individual is dependent, directly or indirectly, on UNRWA. ( )

76. In disagreeing here with the interpretation put forward by the Office of the UNHCR I am guided primarily by the clear text of the provision, which has not been amended in over 50 years. In contrast, it seems to me that the UNHCR’s reading has varied over time, ( ) reflecting the intractable nature of the Palestine problem. Whilst its reading has the advantage of eliminating most evidentiary problems associated with the first sentence, it does so by excluding a much greater number of potential refugees from the scope of the 1951 Convention.





(iii) ‘when such protection or assistance has ceased for any reason’

77. The written observations lodged with the Court suggest, between them, most shades of meaning for this phrase, from a total cessation of UNRWA activity ( ) to a cessation of protection in respect of a particular individual. ( ) Indeed, Ms Bolbol goes further and suggests that if either protection or assistance ceases, that triggers the second sentence of Article 1D. She points out that the United Nations Conciliation Commission for Palestine ( ) has ceased effectively to operate ( ) and concludes that Article 1D, second sentence, is already necessarily in operation for all those previously excluded from protection by the first sentence.

78. I do not accept that submission. The two sentences of Article 1D are to be read consecutively. The phrase ‘protection or assistance’ – used in both sentences – should therefore be read as meaning assistance or protection provided by any one of the ‘organs or agencies of the United Nations’ other than the UNHCR. If a person is ‘at present receiving’ from any such agency ‘protection or assistance’, he is excluded from the Convention (first sentence). I read ‘ceases’ as meaning that Article 1D, second sentence, is triggered if that same person is no longer able to benefit from protection or assistance from any such agency.

79. On the other hand, to read ‘ceases’ as requiring the total cessation of UNRWA’s activities throughout the UNRWA zone would mean that, until then, no person who ceased to receive assistance from organs such as UNRWA would be able to derive any benefit from the second sentence of Article 1D or, arguably, from the Convention as a whole. Such a reading also sits oddly with the presence of the words ‘for any reason’ before the clause referring to the resolution of the underlying problem (displaced Palestinians), since the obvious reason for total cessation of UNRWA’s activities would be that ‘the position of such persons’ had been definitively settled.

80. For that reason, I conclude that what matters is whether the individual concerned has ceased to receive protection or assistance.

81. Finally, I must address the question of whether the reason for the cessation of UNRWA assistance matters. Specifically, is the second sentence of Article 1D triggered if a person voluntarily removes himself from the geographical area in which UNRWA operates, thus making it impossible for him to continue to receive UNRWA’s assistance? Or does ‘cessation for any reason’ mean simply ‘whatever the reason why UNRWA has ceased to provide assistance to a particular person’? As I shall explain, I prefer the second reading.

82. In trying to unpick this Gordian knot, I think that one must look both at the consequences of any particular reading and at the underlying rationale behind the provision. My answer is therefore linked to the reading that I give to the final point of interpretation (as to the legal consequences of triggering the second sentence of Article 1D), ( ) where my interpretation is more generous than some Member States have proposed. I would distinguish between persons who remove themselves voluntarily from the UNRWA zone and thereby from UNRWA’s assistance and those who find that external events beyond their control have meant that UNRWA ceases to continue to provide assistance to them. ( )

83. Individuals in the first category are no longer excluded from the scope of the Convention ratione personae, because they are not ‘at present receiving ... protection or assistance’, and are at liberty to ask for individual assessment with a view to obtaining refugee status under Article 1A. However, they may not claim to be ipso facto entitled to the benefits of the Convention. They have chosen to place themselves in a situation in which UNRWA’s assistance is no longer available to them; but there has been no cessation in UNRWA’s willingness to provide such assistance.

84. Individuals in the second category find involuntarily that their previous situation (in which, although excluded from the Convention by Article 1D, first sentence, they were being cared for by UNRWA) has been altered. UNRWA has ceased to provide such assistance to them. It seems to me that the special regime set out in Article 1D, second sentence, must – if it is to have any meaning – step in to address the needs of such persons.





(iv) ‘Ipso facto … entitled to the benefits of this convention’

85. The Belgian and United Kingdom Governments argue that entitlement to the benefits of the 1951 Convention means no more than the entitlement to be assessed under the criteria set out in Article 1A. To my mind, however, the wording of the second sentence of Article 1D makes it abundantly clear that someone who was previously excluded from the scope of the Convention by the article’s first sentence but whose receipt of non-UNHCR protection or assistance has ceased within the meaning of the first part of the second sentence is then entitled to significantly more, namely automatic recognition as a refugee.

86. First, both the English and the French texts lend themselves to such a reading. Thus, the English has ‘shall ipso facto be entitled to the benefits of this Convention’ and the French ‘bénéficieront de plein droit du régime de cette convention’. I find it difficult to see how merely being entitled to apply for assessment under Article 1A can be said to correspond to either formula.

87. Second, Article 1 is not – as such – a ‘benefit’ of the Convention. Rather, the benefits are contained in the succeeding articles. Article 1 defines who is, and who is not, to have access to those benefits. ( ) It follows that ipso facto entitlement to benefits implies that one has already passed beyond Article 1.

88. Third, the rationale behind Article 1D is that displaced Palestinians should enjoy special treatment and consideration. I find it difficult to regard merely being allowed to join the queue for individual assessment of entitlement to refugee status as special treatment and consideration. That seems to me more the mere removal of a previous obstacle (being excluded from the Convention’s scope).

89. I therefore conclude that ipso facto entitlement means the automatic grant of refugee status, without further individual assessment.





The results of this construction of Article 1D

90. The construction that I propose in dealing with each of the four points of interpretation involves reading the two sentences that together comprise Article 1D in a way that will generate the following set of outcomes:

(a) a displaced Palestinian who is not receiving UNRWA protection or assistance is not excluded ratione personae from the scope of the Convention: he is therefore to be treated like any other applicant for refugee status and to be assessed under Article 1A (avoidance of overlap between UNRWA and the UNHCR; application of the principle of universal protection);

(b) a displaced Palestinian who is receiving protection or assistance from UNRWA is excluded ratione personae from the scope of the Convention whilst he is in receipt of that protection or assistance (avoidance of overlap between UNRWA and the UNHCR);

(c) a displaced Palestinian who was receiving protection or assistance from UNRWA but who, for whatever reason, can no longer obtain protection or assistance from UNRWA ceases to be excluded ratione personae from the scope of the Convention (application of the principle of universal protection); however, whether he is then ipso facto entitled to the benefits of the Convention or not depends on why he can no longer obtain such protection or assistance;

(d) if such a displaced Palestinian can no longer benefit from UNRWA protection or assistance as a result of external circumstances over which he had no control, he has an automatic right to refugee status (application of the principle of special treatment and consideration);

(e) if such a displaced Palestinian can no longer benefit from UNRWA protection or assistance as a result of his own actions, he cannot claim automatic refugee status; however, he is (naturally) entitled to have an application for refugee status assessed on its merits under Article 1A (application of the principle of universal protection and fair treatment for all genuine refugees; proportionate interpretation of the extent of special treatment and consideration to be afforded to displaced Palestinians).





Application mutatis mutandis to the Directive

91. Given that the wording of Article 12(1)(a) of the Directive directly reflects that of the 1951 Convention, it is now possible to deal relatively shortly with the actual questions referred. Once the Court has interpreted Article 12(1)(a), that provision is, in my view, capable of direct effect.





The first question

92. Article 12(1)(a) does not set out verbatim the exclusion condition ‘at present receiving … protection or assistance’; but contents itself with referring directly back to Article 1D of the 1951 Convention. Nothing suggests that the exclusion condition in the Directive is intended to mean something different from Article 1D. On the contrary: every indication is that it should bear exactly the same meaning.

93. Applying the interpretation of Article 1D of the 1951 Convention that I have set out above, I therefore conclude that a person comes within the scope of the first sentence of Article 12(1)(a) of the Directive only if he has actually availed himself of protection or assistance provided by an organ or agency of the United Nations other than the UNHCR. Mere entitlement to such protection or assistance does not exclude such a person from being a refugee within the meaning of Article 2(c) of the Directive.

94. A subsidiary issue (which arises in the context of applying the Directive) is, what evidence must an applicant produce to demonstrate that he fell within the first sentence of Article 12(1)(a) of the Directive as a precursor to claiming special rights under the second sentence? On the basis of the interpretation that I set out above, it seems to me that an applicant must adduce evidence to show that he was actually receiving protection or assistance.

95. Here, it is essential to acknowledge both the State’s legitimate interest in checking whether a particular individual is entitled to what he claims and the very real, practical problems that any displaced person seeking refugee status may face in proving his entitlement. Some applicants will not have a genuine claim to refugee status; and the State is entitled to probe their case. At the same time, the State may not lay down unrealistic standards for the evidence required. ( )

96. The question then arises as to what difference actual registration with UNRWA makes or should make.

97. Registration to my mind is a matter of evidence, not of substance.

98. UNRWA sometimes provides assistance without registering a person. ( ) Sometimes, the administrative records may lag behind the event; or may themselves have been destroyed during hostilities. I therefore reject the French Government’s submission that only actual proof of UNRWA registration will suffice.

99. That said, I would treat evidence of actual registration with UNRWA as raising an irrebuttable presumption that an applicant had been in actual receipt of assistance.





The second question

100. The second sentence of Article 12(1)(a) of the Directive directly mirrors that of the 1951 Convention and a fortiori should be interpreted in the same way.

101. My answer to the second question referred is therefore that ‘cessation of the agency’s protection or assistance’ means that the person concerned has ceased, otherwise than of his own volition, to benefit from the protection or assistance that he enjoyed immediately previously.

102. I do not underestimate the evidentiary issues that will arise in conjunction with determining whether a particular person left the UNRWA zone voluntarily or involuntarily. The problems range from fragmentary evidence (that bears out part of a narrative but not every single step) to the possibility of fabricated evidence (or genuine evidence obtained by bribing the right official). Here, as with demonstrating actual receipt of assistance, the State is entitled to insist on some evidence, but not on the best evidence that might be produced in an ideal world.





The third question

103. The third question referred cannot be answered by direct transposition of the earlier analysis. Here, the scheme of the Directive needs to be taken into account.

104. Article 2(c) of the Directive defines a refugee as a third country national who fulfils a specific set of criteria (modelled on Article 1A of the Convention) ‘and to whom Article 12 does not apply’. Article 12 (entitled ‘Exclusion’) then excludes certain categories of persons (mirroring parts of Article 1 of the 1951 Convention) ( ) ‘from being a refugee’.

105. Does that mean that a person who comes within any part of Article 12(1)(a) (that is, the first and/or the second sentence) is permanently excluded from being a refugee? In my view it cannot.

106. First, the second sentence of Article 12(1)(a) clearly provides for the benefits of the Directive to be extended to persons who fell within the first sentence but who then satisfied the criteria set out in the second sentence. To reconcile that wording with the general definition of ‘refugee’ given by Article 2(c), it is necessary to construe the second sentence of Article 12(1)(a) as an exception to the disqualification clause contained in the first sentence of that provision, with its own specific consequences.

107. Second, Article 12 forms part of Chapter III of the Directive (‘Qualification for being a refugee’). The placement of this article indicates, as Ms Bolbol, the Hungarian Government and the Commission have correctly argued, that this is a separate avenue from the procedure set out in Chapter II (‘Assessment of applications for international protection’) under which a person may qualify as a refugee and hence be entitled to the grant of refugee status under Article 13. ( )

108. Finally, in delineating who is and is not to be considered as a refugee, Articles 2(c), 11 and 12 reflect not only the wording but also the scheme of Article 1 of the 1951 Convention read as a whole. If the Directive contains a lacuna such that a person who fulfils both parts of Article 12(1)(a) is still excluded from being classified as a refugee, then the Directive fails correctly to transpose Member States’ international law obligations under the Convention into European Union law. That must therefore be an erroneous reading of the Directive.

109. Applying the analysis of Article 1D of the Convention that I have set out earlier, I therefore conclude, in answer to the third question referred, that the words ‘the benefits of this directive’ mean qualification as a refugee and automatic entitlement to refugee status in accordance with Article 13 of the Directive. ( )

110. For the sake of completeness, I add that the availability of subsidiary protection ( ) as a further option does not affect the interpretation of Article 12(1)(a). That option is relevant only to persons who are not granted refugee status automatically by virtue of Article 12(1)(a) but who are assessed in accordance with Chapter II and who qualify for subsidiary protection under Chapter V. Under the 1951 Convention, a person must fulfil the criteria in Article 1A in order to qualify for any protection. Under the Directive, a person who falls short of meeting the equivalent criteria (set out in Article 2(c) and further elaborated in Chapter II) may still be offered a (lesser) degree of protection.





Conclusion

111. In the light of the above, I suggest that in answer to the questions referred by the Fővárosi Bíróság the Court should rule as follows:

(1) A person comes within the scope of the first sentence of Article 12(1)(a) of Council Directive 2004/83/EC of 29 April 2004 only if he has actually availed himself of the protection or assistance of a United Nations agency other than the UNHCR. Mere entitlement to such protection or assistance does not suffice to trigger that provision.

(2) The words ‘cessation of the agency’s protection or assistance’ mean that the person concerned is no longer in the relevant geographical area and has ceased, otherwise than of his own volition, to benefit from the protection or assistance that he enjoyed immediately before leaving that geographical area.

(3) The words ‘the benefits of this directive’ mean recognition as a refugee and the automatic grant of refugee status.