“It’s a terrible thing to lose hope”: Re-imagining Protection for Palestinians as Refugees and Stateless Persons

Cynthia Orchard
/ 4 mins read

I have represented hundreds of refugees and approximately 20 stateless people seeking protection in the UK, most of them with heart-breaking cases. The most frustrating situation, that brought both me and my client to tears at times during the process, and that has stayed with me since, was that of a Palestinian man the UK Home Office repeatedly refused to grant status, despite his well-evidenced eligibility for protection as a stateless person. Eventually, he was recognised as stateless and granted a residence permit in the UK, but the harm inflicted by many years of rejection and despair will probably never be adequately redressed.

Image by Snowscat via Unsplash
Image by Snowscat via Unsplash

“‘It’s a terrible thing to lose hope….

I feel we are treated worse than animals….

Sometimes I sit down on my own and cry. Life is very hard. It’s unimaginable.

What can I do?”’

These are the words of Mohammed al-Mustafa – not my client, but another Palestinian who was initially refused recognition in the UK as a refugee or stateless person. He had tried twice to return to Gaza, which he had left as a child. He was also eventually granted leave to remain in the UK as a stateless person.

Palestinian cases across the world

All over the world, Palestinians face significant challenges when seeking protection. These challenges were not imagined by the drafters of the 1951 Refugee Convention  or the 1954 Convention relating to the Status of Stateless Persons. The drafters of those treaties sought to ensure that Palestinians, already recognised internationally as refugees, would have continuing protection until their situation was resolved. There was no way of knowing at the time that the refugeehood and statelessness of most Palestinians would continue for the next 70 years.  

A recent example of the difficulties Palestinians face when seeking protection in Europe is the case of ‘XT’ (as named in court documents), a Palestinian man who was born in Syria and grew up in Yarmouk Refugee Camp in Damascus. From 2013 to 2015, he lived in Lebanon, but returned to Syria as he couldn’t get a residence permit in Lebanon and feared expulsion. Due to the harsh situation in Syria, including the then-ongoing civil war, he left Syria after a few days and applied for protection in Germany in December 2015. After initially being granted subsidiary protection rather than refugee status, XT appealed. As he was registered with the United Nations Relief and Works Agency for Palestine and the Near East (UNRWA), the courts assessed whether he should be granted refugee status (under Article 1D of the 1951 Refugee Convention, which conditionally excludes from protection people who receive assistance or protection from UN agencies other than UNHCR, but also contains an automatic inclusion clause). Two German appeal courts found that XT was entitled to refugee status, but the case was referred to the Court of Justice of the European Union (CJEU), which issued a preliminary ruling in January 2021. This ruling indicates that XT may be eligible for refugee status, but says his case should be considered further by the German courts. The case is still pending in Germany and, more than six years after claiming asylum, XT’s struggle for recognition as a refugee continues.

In another example, in 2017, the Spanish Supreme Court found that, although Spain does not recognise Palestine as a state, Palestinians are not stateless and are not entitled to protection on the grounds of statelessness.

Positive developments

Despite the ongoing challenges, there are some positive developments in judicial decisions relating to Palestinians. In 2021, Belgian judges found in several cases that UNRWA was no longer able to provide adequate assistance to Palestinians in Gaza and Lebanon, and UNRWA assistance had therefore ceased for the purposes of determining whether those people were eligible for protection under the 1951 Refugee Convention. This meant that applicants in those cases should automatically be granted refugee status. Also in 2021, the Court of the Hague in the Netherlands examined the situation of Palestinians from Lebanon, concluding that Palestinians without a Lebanese residence permit were unlikely to be able to return to Lebanon. In 2019, a tribunal in New Zealand found that UNRWA was unable to provide adequate healthcare or financial support to a Palestinian formerly resident in Lebanon. In addition, UNHCR recommended in March 2022 that states properly assess the need to protect Palestinians from the situation in Gaza and not force them to return to Gaza, in light of the dire circumstances there.

These cases and related issues are addressed in a new report I drafted for the European Network on Statelessness and BADIL (the Resource Center for Palestinian Residency and Refugee Rights): Palestinians and the Search for Protection as Refugees and Stateless Persons. The report also examines some of the relevant history and recent events and considers the concepts of Palestinian nationality and statelessness under international law. Although many people of Palestinian origin understandably identify themselves as Palestinian nationals, and even though they have rights under international law to Palestinian and/or Israeli nationality, Palestinians should be considered stateless under the 1954 Convention relating to the Status of Stateless Persons (unless they have acquired a nationality other than Palestinian) and granted protection as such.

XT’s case, Mohammed al-Mustafa’s case, my former client’s case, and the other cases discussed in the report exemplify some of the protracted struggles many Palestinians experience in their search for protection as refugees and stateless persons. These cases also show, however, that at least for some Palestinians there is increasing recognition of their status as refugees and stateless persons, particularly when they receive expert legal assistance, and that they can eventually find the protection they seek. We must work together to continue improving access to protection, raising the standards of protection granted, increasing awareness of Palestinians’ circumstances, and providing clarity on the interpretation and application of relevant law. We must, of course, go beyond just imagining effective protection for Palestinians, and work to make this a reality.

Stay tuned for more developments from ENS on this issue

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