Bundesrepublik Deutschland v XT.
Date: 2021-01-13
Next, it is clear from recitals 4, 23 and 24 of Directive 2011/95 that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of the directive for determining who qualifies for refugee status and the content of that status were adopted to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria (see, by analogy, judgments of 17 June 2010, Bolbol, C‑31/09, EU:C:2010:351, paragraph 37; 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 42, and 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 28).
Directive 2011/95 must, for those reasons, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 16 in the preamble thereto, that directive must also be interpreted in a manner consistent with the rights recognised by the Charter of Fundamental Rights of the European Union (see, by analogy, judgments of 17 June 2010, Bolbol, C‑31/09, EU:C:2010:351, paragraph 38; 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 43, and 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 29).
In addition, it should be borne in mind that Member States are required, under Article 46(3) of Directive 2013/32, to order their national law in such a way that the processing of the appeals referred to in that provision includes an examination, at least in appeals procedures before a court or tribunal of first instance, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand; the expression ‘ex nunc’ and the adjective ‘full’ contained in this provision point to the obligation of the court or tribunal to make an assessment which takes into account, where appropriate, both the evidence which the determining authority took into account or should have taken into account and that which has arisen following the adoption of the decision under appeal. The power of the court or tribunal to take into consideration new evidence on which that authority has not taken a decision is consistent with the purpose of Directive 2013/32, which is intended, inter alia, as can be seen from recital 18 thereto, to ensure that applications for international protection are dealt with ‘as soon as possible …, without prejudice to an adequate and complete examination being carried out’ (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraphs 109 to 113).
On account of that specific refugee status established in those territories of the Near East for Palestinians, persons registered with UNRWA are, in principle, by virtue of the first sentence of Article 12(1)(a) of Directive 2011/95, which corresponds to the first paragraph of Article 1(D) of the Geneva Convention, excluded from refugee status in the European Union (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 85).
That said, it follows from the second sentence of Article 12(1)(a), which corresponds to the second paragraph of Article 1(D) of the Geneva Convention, that, when an applicant for international protection in the European Union no longer receives protection or assistance from UNRWA, that exclusion ceases to apply (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 85).
As the Court has held, the second sentence of Article 12(1)(a) of Directive 2011/95 applies where it becomes evident, based on an assessment, on an individual basis, of all the relevant evidence, that the personal safety of the stateless person of Palestinian origin concerned is at serious risk and that it is impossible for UNRWA, whose assistance was requested by that person, to guarantee that the living conditions of that individual would be compatible with its mission, and that person is forced to leave the UNRWA area of operations owing to circumstances beyond his control. In that case, that stateless person may – unless he or she falls within the scope of any of the grounds for exclusion set out in Article 12(1)(b), Article 12(2) and Article 12(3) of that directive – ipso facto be entitled to the benefits of that directive, without necessarily having to demonstrate a well-founded fear of being persecuted, within the meaning of Article 2(d) of that directive (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 86 and the case-law cited).
That interpretation is also supported by the case-law according to which, in the event that a person who has left the UNRWA area of operations and lodged an application for international protection in the European Union benefits from effective protection or assistance from UNRWA in that area, enabling him or her to reside there in safety, under dignified living conditions and without being at risk of being refouled to the territory of habitual residence for as long as he or she is unable to return there in safety, that person cannot be regarded by the authority empowered to decide on that application as having been forced, by reason of circumstances beyond his or her control, to leave UNRWA’s area of operations. That person must, in that case, be excluded from refugee status in the European Union, in accordance with Article 12(1)(a) of Directive 2011/95 (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 134).
In order to answer that question, it must first of all be pointed out that the fact that Article 1(D) of the Geneva Convention, to which the first sentence of Article 12(1)(a) of Directive 2011/95 refers, simply excludes from the scope of the convention persons who ‘are at present receiving’ protection or assistance from an organ or agency of the United Nations other than the United Nations High Commissioner for Refugees 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 (see, by analogy, judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 49).
Indeed, if that were the case, an applicant for asylum within the meaning of Article 2(c) of Directive 2013/32 who submitted an application in the territory of a Member State and was therefore physically absent from UNRWA’s area of operations would never be caught by the ground for exclusion from refugee status established in Article 12(1)(a) of Directive 2011/95, which would have the effect of depriving that ground for exclusion of any practical effect (see, by analogy, judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 50).
Moreover, to accept that voluntary departure from UNRWA’s area of operations and, therefore, voluntary renunciation of the assistance provided by that agency would trigger the application of the second sentence of Article 12(1)(a) of Directive 2011/95 would run counter to the objective pursued by the first paragraph of Article 1(D) of the Geneva Convention, which is intended to exclude from the benefits of the convention all persons who receive such assistance (see, by analogy, judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 51).
In the case which gave rise to the judgment of 25 July 2018, Alheto (C‑585/16, EU:C:2018:584), the applicant in the main proceedings had – during the armed conflict between the State of Israel and Hamas, the organisation which controls the Gaza Strip – left the Gaza Strip to seek safety in Jordan, where she had stayed and from where she had travelled to Bulgaria. The Court considered that it could not be ruled out that UNRWA might have been able to provide a person registered with it with living conditions in Jordan that meet the requirements of its mission after that person has fled the Gaza Strip, so that that person could stay there in safety, under dignified living conditions and without being at risk of being refouled to a territory to which that person could not return in safety. If those circumstances were established, according to the Court, a person such as the applicant in the main proceedings could not be regarded as having been forced, by reason of circumstances beyond his or her control, to leave UNRWA’s area of operations (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 132 to 134).