Mostafa Abed El Karem El Kott and Others v Bevándorlási és Állampolgársági Hivatal.
Date: 2012-12-19
42. It is apparent from recitals 13, 16 and 17 in the preamble to Directive 2004/83 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 thereof 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 (Case C-31/09 Bolbol [2010] ECR I-5539, paragraph 37).
43. Directive 2004/83 must, for that reason, 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 10 in the preamble thereto, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter (Joined Cases C-71/11 and C-99/11 Y and Z  [2012] ECR, paragraph 48 and the case-law cited).
44. In the case which gave rise to the judgment in Bolbol , the Fővárosi Bíróság referred to the Court questions formulated in almost identical terms to those of the questions raised in the present reference for a preliminary ruling. However, in that case, since the person concerned had not availed herself of assistance from UNRWA before leaving that agency’s area of operations to apply for asylum in Hungary, the Court found that it was unnecessary to address, first, the circumstances under which such assistance may be said to have ‘ceased for any reason’ or, second, the nature of the benefits conferred by the directive to which the person concerned may ipso facto have been entitled as a result of the cessation of assistance (see, to that effect, Bolbol , paragraphs 55 and 56).
Question 2
47. The first subparagraph of Article 1D of the Geneva Convention provides that the convention does not apply to persons who ‘are at present receiving’ protection or assistance ‘from organs or agencies of the United Nations other than the [HCR]’. That ground for exclusion from the scope of the convention must be construed narrowly (see, to that effect, Bolbol , paragraph 51).
49. The fact that that provision of the Geneva Convention, to which the first sentence of Article 12(1)(a) of Directive 2004/83 refers, simply excludes from the scope of the convention persons who ‘are at present receiving’ protection or assistance from such an organ or agency of the United Nations 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.
50. Indeed, if that were the case, an applicant for asylum within the meaning of Article 2(c) of Directive 2005/85 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 2004/83, which would have the effect of depriving that ground for exclusion of any practical effect, as observed by the Advocate General at points 52 and 53 of her Opinion.
51. 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 2004/83 would run counter to the objective pursued by the first subparagraph of Article 1D of the Geneva Convention, which is intended to exclude from the benefits of the convention all persons who receive such assistance.
76. Thus, a person who is ipso facto  entitled to the benefits of Directive 2004/83 is not necessarily required to show that he has a well-founded fear of being persecuted within the meaning of Article 2(c) of the directive, but must nevertheless submit – as did the applicants in the main proceedings – an application for refugee status, which must be examined by the competent authorities of the Member State responsible. In carrying out that examination, those authorities must verify not only that the applicant actually sought assistance from UNRWA (see, in that regard, Bolbol , paragraph 52), and that the assistance has ceased but also that the applicant is not caught by any of the grounds for exclusion laid down in Article 12(1)(b) or (2) and (3) of the directive.
77. Furthermore, it should be added that Article 11(f) of Directive 2004/83, read in conjunction with Article 14(1) thereof, must be interpreted as meaning that the person concerned ceases to be a refugee if he is able to return to the UNRWA area of operations in which he was formerly habitually resident because the circumstances which led to that person qualifying as a refugee no longer exist (see in that regard, by analogy, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla and Others  [2010] ECR I-1493, paragraph 76).