Analysis: “The Exclusion of Palestinian Refugees from Refugee Status in EU Asylum Law” by Stefan Salomon
The Court of Justice delivered on 13 January 2021, in Bundesrepublik Deutschland v XT (C-507/19), its fourth decision on the relationship between refugee protection and the special protection regime for Palestinian refugees, who are excluded from refugee protection under the Convention Relating to the Status of Refugees of 1951 (CRS 1951) (fn 1). The decision of the Court is significant beyond the confines of EU law and represents a further contribution to the development of international refugee law. A brief case note on EU Law Live is available here.
The judgment essentially concerns the question of the scope of exclusion from refugee status, if a person already receives protection from the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), a UN relief program established in 1949 that provides protection and assistance to Palestinian refugees. Article 12(1)(a) of Directive 2011/95, which reflects article 1D of the CRS 1951, provides, first, a ground of exclusion from refugee status, if that person receives protection and assistance from UNRWA, and, second, a ground for no longer applying this exclusion if protection or assistance by UNRWA ceases. The relevant question in the case was thus: what are the relevant criteria for determining when the protection of the UNRWA ceases?
The facts of the case are relatively straightforward. XT, a stateless person registered with UNRWA in Syria, travelled in 2013 to Lebanon. Sharing the fate of so many Syrian refugees in Lebanon, XT lacked a residence permit and was thus under a constant risk of being deported to Syria. In 2015 XT travelled briefly back to Syria and subsequently moved further to Germany, where he eventually applied for international protection.
The following Analysis is structured along the two key issues in the judgment: first, the territorial scope of protection afforded by UNRWA and, second, the question of when a person’s movement can be deemed as voluntary, and the legal effects that follow from such a qualification.
UNRWA operates exclusively in the Near East; more specifically, UNRWA’s area of operation consists of five different fields of operation that include Syria, Lebanon, Jordan, the West Bank, and Gaza. As XT moved between two different fields of operation, Lebanon and Syria, the referring German Bundesverwaltungsgericht essentially wanted to know whether only one specific field of operation, in this case Syria where XT had his residency, should be taken into account in determining the end of protection or UNRWA’s entire area of operation. In contrast to the Bundesverwaltungsgericht’s emphasis of residency, the Court of Justice held that the cessation of protection must be based on an assessment of whether protection and assistance that a person receives from UNRWA effectively exists and is practically accessible in UNRWA’s area of operation. As long as a person registered with UNRWA in Syria could safely access and enjoy UNRWA’s protection and assistance in Lebanon or Jordan, protection has not ceased and that person thus remains excluded from refugee status. The Court emphasised the obligation of Member States authorities and courts to conduct an individual assessment on the existence and accessibility of protection and assistance.
On the one hand, the Court’s emphasis of effective protection reflects the normative core and the pragmatist flexibility of the refugee regime to afford effective protection to persons in need of such protection. On the other, this is also the judgment’s weak point. The Court fails to include clearer guidance on what counts as effective protection. The Court states that protection is effective if a person can reside in a place in safety, under dignified living conditions, and without the risk of being refouled. It does not, however, further clarify the relevant legal criteria for the assessment of what amounts to ‘undignified living conditions’, for instance. Is such an assessment to be based on the Court’s own increasing body of expulsion case law on Article 1 (human dignity) and Article 4 (prohibition of torture) of the EU Charter of Fundamental Rights? Or are ‘undignified living conditions’ rather to be determined by a mismatch between UNRWA’s own mandate of providing and the protection it actually provides, as the Court seems to suggest? It is surprising, to say the least, that the Court does not even mention the Charter on Fundamental Rights. This leaves national courts in the unenviable position of second guessing the Court.
Undignified living conditions and a lack of personal safety point to the second main issue in the judgment: voluntariness. The topos of voluntariness has assumed a central place in recent judicial decisions on migration and asylum law beyond EU asylum law. In ND and NT v Spain, the European Court of Human Rights (ECtHR) limited the scope of the prohibition of collective expulsion and effectively excluded persons who ‘voluntarily’ chose to enter a territory unlawfully, arguing that these persons would have had the (merely hypothetical) possibility of obtaining entry permits. In Ilias Ahmed and others v Hungary the ECtHR considered that Hungary’s detention of asylum seekers in transit centres at the border did not amount to arbitrary deprivation of liberty, because they remained ‘voluntarily’ in the transit centres. The ECtHR argued that the asylum seekers could leave at any time through a door in the fence to Serbian territory – where they were at risk of chain refoulement, as the ECtHR itself acknowledged. The decisions of the ECtHR essentially concern one question: when is a person’s movement considered voluntary and what legal consequences are attached to it?
The Court of Justice provided the following answer to this question. Mere voluntary departure or absence from UNRWA’s area of protection does mean that the exclusion from refugee status ends; otherwise, the Court argued, every person registered with UNRWA who applies for asylum in the EU would be caught by this exclusion. Thus, if a person was able to safely access another field of UNRWA’s area of protection and to enjoy effective protection and assistance there, departure is not involuntary and that person must consequently be excluded from refugee status. On the bright side, the Court’s emphasis of the topos of voluntariness is in its consequences distinct from the restrictive ECtHR judgments and favours effective protection of refugees over a class-based reading of article 1D that would exclude Palestinian refugees in toto as long as UNRWA activities exist in the Near East (fn 2). The dark undercurrent of this decision however is that it consolidates a broader questionable judicial discourse on voluntariness in asylum and migration law that neglects broader structural factors causing people to flee and instead puts an unrealistic emphasis on individual choice.
Stefan Salomon is an Assistant Professor in EU law at the University of Amsterdam.
(fn 1) The previous three cases are C-31/09 Bolbol  ECLI:EU:C:2010:351; C-364/11 Abed El Karem El Kott  ECLI:EU:C:2012:826; C-585/16 Alheto  ECLI:EU:C:2018:584.
(fn 2) For such a class-based reading of Aarticle 1D of the CSR 1951 see, James C. Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2014) pp. 529-530.