ECJ Advocate-General Opinion on Palestinian Refugees: A Step in the Right Direction


ENS welcomes the opinion issued by Advocate-General Emiliou of the European Court of Justice (ECJ) as a step in the right direction to addressing and mitigating the issues faced by stateless Palestinians in Europe. 

Buildings of the Court of Justice of the European Union in Kirchberg, Luxembourg City, Luxembourg, in November 2006 with flags of the then 25 member states in the foreground. To the right is Anneau building, which encircles the Ancien Palais building. In the centre background is the Thomas More building.

The non-binding opinion concerns a case involving two stateless Palestinians who left Gaza and the respective area of operation of UNRWA (who they were registered with), for Bulgaria and applied for refugee protection there. 

AG Emiliou’s opinion emphasised that, while Palestinian refugees who receive assistance from UNRWA are excluded from the protection of the 1951 Refugee Convention (as per Article 1D), UNRWA’s protection or assistance must be considered to have ceased if there is exposure to undignified living conditions, ill-treatment and indiscriminate violence, and other serious harm. If the assistance has ceased, then the Refugee Convention states that the person would be ipso facto entitled to refugee status. The opinion noted that the level of insecurity and the living conditions have been changing rapidly for people living in the Gaza Strip, particularly since 7 October 2023, and the general situation currently prevailing in the area must be taken into consideration. If UNRWA’s area of operation or a part thereof experiences grave systemic deficiencies, it is not necessary to show that the general living conditions are ‘undignified’ for the person concerned in an individualised manner in order to establish that UNRWA’s protection or assistance has ‘ceased’, as they can be deemed to be ‘undignified’ for everyone. The opinion also underlined the importance of considering a child to be part of a particularly vulnerable group which may be more affected by such conditions. 

In a report and briefing with BADIL in 2022, ENS highlighted that Palestinians are also entitled to protection as stateless persons and to the safeguards established in the 1961 Convention to prevent childhood statelessness.  

Palestinians who have not acquired a nationality (other than Palestinian) should be considered stateless under the definition set out in the 1954 Convention. This is mainly because Palestine remains under occupation by Israel, does not have full sovereignty, does not have full control over issuance of official documentation or entry and exit to its territory, and because attempts to enact a Palestinian nationality law have failed. 

Despite their entitlement to statelessness status and rights, Palestinians continue to face discrimination due to inadequate legal frameworks or discriminatory practices, and are often unable to access protection as refugees or stateless persons in many European countries. Very few European countries have Statelessness Determination Procedures in place to allow stateless people to access their rights, and some exclude Palestinians from accessing these. Additionally, Palestinian children face obstacles in acquiring a nationality in some countries which do not apply the 1961 Convention’s safeguards to prevent childhood statelessness to Palestinian children.

Against this backdrop, AG Emiliou’s opinion is very welcome. Now more than ever, the EU and its Member States must improve access to protection for Palestinians, including by clarifying whether UNRWA is able to carry out its mandate, which is a particularly salient question following news of recent funding cuts

We continue to hope to see the EU and its Member States increase their efforts to protect Palestinians, both as refugees and as stateless people, and hope to see the harmonisation of interpretation and application of EU and international law.

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