Between Law and Reality: the Challenges for Palestinian Refugees in Bulgaria

Case background 

In 2019, a young mother, father, and their infant child became one of many Palestinian families fleeing Gaza. Upon entering Bulgaria by irregular means, the family was immediately detained. With the support of the Foundation for Access to Rights (FAR), the mother and daughter subsequently applied for asylum, citing the dire humanitarian conditions in Gaza, the lack of decent basic living conditions, and the constant state of war and internal conflict. However, Bulgarian asylum authorities and two courts rejected their claim, arguing that they had not demonstrated a well-founded fear of persecution or an imminent threat to life as, in their view, the hostilities in the area did not rise to the level of armed conflict and indiscriminate violence.  

After this initial denial, in 2020, with FAR’s assistance, the mother and her child submitted a second, subsequent asylum application to the Bulgarian authorities (the subject of the case before the CJEU). This time, the applicants placed emphasis on their registration with UNRWA, a fact that had not been mentioned during the first asylum procedure. The applicants claimed that due to the deep humanitarian crisis in the Gaza Strip, UNRWA’s assistance had ceased, leaving them without basic security or dignity in Gaza. Furthermore, the applicants highlighted that returning a minor child to Gaza would be contrary to the principle of protecting the best interests of the child.   

Although admitted for consideration on its merits, the second application was yet again rejected by the Bulgarian asylum authorities who claimed that the family had left UNRWA’s area of operation voluntarily and could potentially access assistance upon return. Additionally, the authorities emphasised that the general situation in the Gaza Strip did not substantiate a personal element of persecution or threat to life to qualify for refugee status. The applicants’ appeal of the decision led to a request for clarification from the CJEU. 

Key takeaways from the CJEU judgment 

In its judgment, the CJEU first ruled that all facts, including those from prior applications, must be considered in subsequent asylum claims, given that such information may be necessary to ensure the applicant’s comprehensive and individualised assessment.  

Next, the Court observed that, in principle, if the Bulgarian court concludes that UNRWA can no longer provide essential protection in Gaza, affected individuals should automatically be granted refugee status unless other legal exclusions under Directive 2011/95/EU apply. 

On numerous occasions the CJEU has had the opportunity to provide clarifications on when UNRWA’s protection or assistance should be deemed to have ceased. In El Kott v Hungary, for example, the CJEU concludes that the cessation of UNRWA’s protection or assistance happens not only if that agency ceases to exist, but also if the person concerned has been forced to leave UNRWA’s area of operation for reasons beyond their control. Such is the case if the personal safety of the individual concerned is at serious risk and if it is impossible for that agency to guarantee that that person’s living conditions in its area of operation are commensurate with the mission entrusted to it.  In NB and AB v Secretary of State for the Home Department, the Court confirmed that, in assessing whether UNRWA assistance has ceased, the national authorities must consider not only the reasons which led the applicant to leave the UNRWA’s area of operation, but also whether an effective possibility of returning exists. Account must be taken of factual elements, as they exist  not only at the time of that person’s departure from the UNRWA’s area of operation, but also at the time when the competent administrative authorities consider an application for refugee status or the judicial authorities concerned rule on the appeal against a decision refusing to grant such status. Further clarifications were provided also in  XT v Germany and SW v Office français de protection des réfugiés et apatrides. Building on these previous judgments, this time, the court concluded that UNRWA’s help has ceased when it finds itself unable, for whatever reason, including a reason related to the general situation in the sector of UNRWA’s area of operations, in which the stateless person of Palestinian origin had their habitual residence, to ensure to that stateless person, taking into account their state of vulnerability, dignified living conditions or minimum security conditions. According to the CJEU, applicants are not required to prove that they are personally affected by this general situation because of circumstances inherent in their personal situation, in contradiction to the Bulgarian authorities’ decision.  

In this regard, the Court notes that both the living conditions in the Gaza Strip and UNRWA's ability to carry out its mission have suffered an unprecedented deterioration due to the aftermath of the events of 7 October 2023.  

Six months after the CJEU Ruling: justice delayed, justice denied? 

When the CJEU issued its long-awaited judgment, many hoped it would bring clarity and fairness to the case at hand. However, the ruling ultimately left the national court's practice unchanged.  

On 3 January 2025—half a year after the CJEU’s ruling—the national administrative court finally delivered its verdict on the applicants’ appeal. The delay was attributed to the "dynamic situation in Gaza" and the State Agency for Refugees' inability to provide reliable country of origin information. Yet, after all the waiting, the outcome was deeply disappointing and seemingly disconnected from the CJEU's conclusions. 

Much like in the Alheto case, the national court sidestepped Article 1D of the 1951 Refugee Convention, failing to assess its relevance to the applicants. Instead, the court upheld the administrative decision to deny refugee status, ruling that the applicants had not sufficiently demonstrated a well-founded fear of persecution based on race, religion, nationality, social group, or political beliefs. 

Acknowledging the worsening humanitarian crisis in Gaza, the court did recognise that the applicant and her child faced a real risk to their lives and well-being due to the ongoing armed conflict. But rather than granting refugee status, this was only enough to annul the refusal of subsidiary protection (known in Bulgaria as humanitarian status). Strikingly, the court did not examine whether UNRWA’s assistance had ceased or whether a safe return to Gaza was possible—critical aspects that should have been considered to grant automatic refugee status under Article 1D of the Refugee Convention. 

After six long years of uncertainty and legal battles, the family made the difficult decision not to appeal. Instead, they clung to the hope that at least subsidiary protection would offer them some semblance of security. However, the State Agency for Refugees has since appealed the court’s decision—specifically, the part that grants the family subsidiary protection. Their reasoning? - they claim that at the time the decision was issued (before 7 October 2023) they had considered all the relevant facts.  

This means the legal battle isn’t over yet. Instead of finally finding safety and security after years of uncertainty, the applicants are once again left waiting for a final ruling. What should have been a small measure of relief is now at risk of being taken away. 

Bulgaria’s stance reflects bad faith, as this CJEU judgment has had significant implications in other national contexts. A notable example is the French National Court of Asylum, which on 13 September 2024, ruled that Palestinians under UNRWA's mandate can apply for refugee status in France. The applicants, a Palestinian couple from Gaza, claimed they had been threatened by Hamas members and highlighted the worsening humanitarian and security situation in the Gaza Strip. The French court concluded that UNRWA is no longer able to provide effective assistance or protection to Palestinians in the region and granted the couple refugee status. 

A further analysis of the application of article 1D in Bulgaria can be read here.