“Everyone has the right to a nationality”

Protecting Stateless Palestinian Refugees – The EU Court of Justice opens a new chapter

16 April 2013 | Gábor Gyulai, Refugee Programme Coordinator, Hungarian Helsinki Committee

The European Network on Statelessness (ENS) advocates for the creation of statelessness-specific protection regimes all over Europe. Where such systems are in place, stateless persons are entitled to a protection status based only on the fact that they have no nationality. This model, however, is not the only protection path for stateless persons in a migratory situation. Statelessness is frequently linked with political oppression, ethnic, religious or gender-based discrimination and various other persecutory practices, resulting in forced migration. The 1951 Convention relating to the Status of Refugees explicitly provides for the protection of stateless refugees, integrating this group into the general refugee definition. This means that a stateless Syrian Kurd or a stateless Rohingya from Myanmar who flees persecution should first receive protection under this umbrella in states which have signed up to this convention. According to UNHCR statistics, for example, 3 344 stateless persons sought asylum in industrialised countries in 2011.

Besides the general inclusion of stateless refugees, the 1951 Refugee Convention contains a specific protection measure for Palestinian refugees (as a consequence of various Arab-Israeli conflicts since 1948, millions of Palestinian refugees live in the Middle East, the majority of them are stateless). According to this specific provision (Article 1D), persons who received protection or assistance from a UN agency other than the UNHCR shall ipso facto (which roughly means automatically; we will come back to this term later) be entitled to the “benefits of the Convention”, if protection or assistance by the other UN agency has ceased “for any reason”.

For decades, the only such “alternative” UN agency supporting refugees has been the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Consequently, Article 1D was meant to provide protection to those Palestinian refugees who received assistance from the UNRWA, but subsequently left its area of operation (e.g. by travelling from Lebanon, Syria, the Gaza Strip or the West Bank to Europe) and therefore UNRWA assistance ceased. This provision has proved to be one of the most controversial ones in international refugee law for several decades. It has been – willingly or unwillingly – overlooked in many states’ practices, and actors in the field have had extremely divergent (and sometimes even constantly changing) understanding about its proper application. Two consecutive research reports by the BADIL Research Centre (here and here) showed not only disturbing discrepancies between national practices even within Europe, but also the scarce application of this provision in general. Exact statistics about persons recognised as refugees under this provision are not available. However, experience shows that its use has so far remained marginal; most stateless Palestinians obtaining refugee status instead usually do so under Article 1A of the 1951 Refugee Convention (i.e. falling under the scope of the “general” refugee definition).  

The recent El Kott judgment of the EU Court of Justice seems to open a new chapter in the history of the application of this protection provision, including by deciding questions left unresolved when guidance on the interpretation of Article 1D was first sought from the Court in the previous Bolbol case. This court has unique competence in interpreting EU law (based on specific questions – “references for preliminary rulings” – by national courts) and its guidance must be followed by EU member states. A key instrument of EU asylum legislation (the so-called Qualification Directive) copies Article 1D of the 1951 Refugee Convention. This is how the Court of Justice, following a referral by the Metropolitan Court of Hungary, was faced with an unprecedented opportunity to provide mandatory guidance on how to apply this long-disregarded rule. Several EU member states, as well as the UN High Commissioner for Refugees (UNHCR), intervened in the case and legal interpretations – as always in the past – were highly divergent. Finally, the Court of Justice adopted a position close in many aspects to that of the UNHCR and the Hungarian Helsinki Committee (which represented the applicants), rejecting a number of arguments endorsed by Hungary and some other member states.

The El Kott judgment finally put an end (at least in the EU) to the two main debates about the concrete applicability of Article 1D:

1)      Some states repeatedly argued that the “benefits of the Convention” (or in the concrete case: the benefits of the Directive) do not mean more than the mere possibility to apply for protection (using this as a pretext for the non-application of this provision as a protection measure). The Court of Justice in El Kott discarded this approach, noting that this possibility is anyway available to any third-country national or stateless person residing in EU territory. Finally the Court ruled that being entitled to the benefits of the Directive means nothing less than an obligation for member states to recognise the person as a refugee (if no exclusion clauses apply).

2)      The other, probably even more heated, main debate about Article 1D was centred on the term “for any reason”. Historically, interpretations ranged from a very strict requirement (the reason for leaving the UNRWA area of operation must be a well-founded fear of persecution) to an all-inclusive approach (the mere fact of leaving the UNRWA area of operation results in an automatic entitlement to refugee status). The Court of Justice chose an interpretation lying somewhere between these two extremes, when ruling that in order for this protection provision to be applicable, the cessation of UNRWA assistance must be beyond the asylum-seeker’s control and independent of her/his will. In the Court’s interpretation this includes situations where the person’s personal safety was at serious risk and it was impossible for the UNRWA to guarantee that her/his living conditions in that area would be proportionate with the Agency’s mission. The Court rejected that purely voluntary migration from the UNRWA area of operation to the EU would trigger an automatic recognition of refugee status by member states, arguing that this would run counter to the objective of Article 1D. On the other hand, while the migratory move must be motivated by forcing elements (safety, living conditions), these are not required to reach the high threshold of a well-founded fear of persecution. To give a simple example: if a Palestinian refugee is not able to live safely or under acceptable conditions in an UNRWA-run refugee camp in Lebanon and for this reason is forced to move to an EU member state, she/he should automatically receive refugee status there. At the same time, these grounds may be considered insufficient for the recognition of refugee status under Article 1A of the 1951 Refugee Convention, in other (non-Palestinian, non-UNRWA) cases.

The actual application of the El Kott principles in national practice remains to be monitored. Yet, it is likely that the use of Article 1D – after decades of neglect – will become more frequent and more coherent, and that Palestinian forced migrants from the Middle East will have easier access to refugee status in the EU than previously.

Palestinians constitute one of the largest stateless populations of the world. Therefore, the impact of the El Kott judgment may extend well beyond the borders of the EU and the field of asylum. It will hopefully remind the international community of the long-overlooked protection needs of stateless migrants world-wide, be it under the umbrella of asylum, or statelessness-specific protection measures. The European Network on Statelessness will keep on working to ensure that all stateless persons in Europe (including Palestinians not falling under the scope of the refugee definition) have access to a proper protection status.

For more information about the work of the Hungarian Helsinki Committee visit www.helsinki.hu/en/ Gábor Gyulai is also Chair of the ENS Steering Committee.

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