Opinion of Advocate General Hogan delivered on 6 October 2021.

• Jurisdiction: European Union
• Date: 06 October 2021
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL HOGAN

delivered on 6 October 2021(1)

Case C‑349/20

NB,

AB

v

Secretary of State for the Home Department,

joined parties:

United Nations High Commissioner for Refugees (UK)

(Request for a preliminary ruling from the First-tier Tribunal (Immigration and Asylum Chamber) (United Kingdom))

(Reference for a preliminary ruling – Minimum standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection – Directive 2004/83/EC – First sentence of Article 12(1)(a) – Exclusion from being a refugee – Stateless person of Palestinian origin registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) – Second sentence of Article 12(1)(a) of Directive 2004/83 – Conditions to be entitled ipso facto to the benefits of Directive 2004/83 – Cessation of UNRWA protection or assistance – Assessment, on an individual basis, of all the relevant factors – Assessment includes an ex nunc assessment – Article 4 – Absence of a requirement of intentional infliction of harm or deprivation of assistance by UNRWA or the State in which it operates – Protection or assistance by civil society actors acting under the auspices of UNRWA or the State in which it operates)

I. Introduction

1. The present reference for a preliminary ruling concerns the interpretation of Article 11 and Article 12(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. (2)

2. The reference was made in proceedings between NB and AB, a mother and her minor son and the Secretary of State for the Home Department (United Kingdom) (‘the Secretary of State’). NB and AB are stateless persons of Palestinian origin formerly resident in Lebanon and who are registered as refugees with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). As if life had not thrown up enough challenges for this family, it should be noted that AB is himself severely disabled and he has highly complex medical and social needs.

3. The proceedings concern a challenge to the decision made by the Secretary of State to reject NB’s and AB’s applications for refugee status or humanitarian protection. Given that NB and AB are stateless persons of Palestinian origin who registered with UNRWA, they are eligible to receive protection and assistance from that agency and are thus, in principle, in accordance with the first sentence of Article 12(1)(a) of Directive 2004/83, excluded from refugee status under the terms of that directive unless such protection or assistance ceases, in accordance with the second sentence of Article 12(1)(a) of Directive 2004/83.

4. The case before the referring court accordingly concerns the issue, inter alia, of whether there has been a cessation of protection or assistance from UNRWA in respect of AB within the meaning of the second sentence of Article 12(1)(a) of Directive 2004/83. In the event that such protection or assistance was found to have ceased, AB would ipso facto be entitled to the benefits of Directive 2004/83 by reason of his status qua stateless Palestinian refugee without necessarily having to demonstrate, for example, a well-founded fear of persecution within the meaning of Article 2(c) of that directive. (3)

5. Before considering the questions referred, it is, however, first necessary to set out the relevant legal provisions.

II. Legal framework

A. International law

1. The Convention relating to the Status of Refugees

6. The Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), entered into force on 22 April 1954. It was supplemented and amended by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Geneva Convention’).

7. Article 1D of the Geneva Convention, which introduces exceptional legal status for certain groups of persons, is worded as follows:

‘This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees [HCR] protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.’

2. United Nations Relief and Works Agency for Palestine Refugees in the Near East

8. UNRWA was established by virtue of a United Nations General Assembly resolution No 302 (IV) of 8 December 1949, concerning assistance to Palestine refugees. Its task is to serve the well-being and human development of Palestine refugees. UNRWA’s area of operations covers Lebanon, Syria, Jordan, the West Bank (including East Jerusalem) and the Gaza Strip. The mandate of UNRWA was extended until 30 June 2023 by United Nations General Assembly resolution A/RES/74/83 on 13 December 2019.

9. At present UNRWA constitutes the only United Nations organ or agency (other than the HCR) which is referred to in the first sentence of Article 12(1)(a) of Directive 2004/83 and in the first subparagraph of Article 1D of the Geneva Convention.

B. EU law – Directive 2004/83

10. Recital 3 to Directive 2004/83 states that the Geneva Convention provides the cornerstone of the international legal regime for the protection of refugees.

11. As is apparent from recital 10 of Directive 2004/83, read in the light of Article 6(1) TEU, that directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, the directive seeks to ensure, on the basis of Articles 1 and 18 of the Charter, full respect for human dignity and the right to asylum of applicants for asylum.

12. Recitals 16 and 17 of Directive 2004/83 are worded as follows:

‘(16) Minimum standards for the definition and content of refugee status should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention.

(17) It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention.’

13. Recital 38 of Directive 2004/83 states that ‘in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified, by letter of 28 January 2002, its wish to take part in the adoption and application of this directive’.

14. Article 11, which is in Chapter III of Directive 2004/83 (‘Qualification for being a refugee’), is entitled ‘Cessation’, and is worded as follows:

‘1. A third-country national or a stateless person shall cease to be a refugee if:

…

(f) being a stateless person with no nationality, he or she is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to the country of former habitual residence.

…’

15. Article 12 of Directive 2004/83, which is also in Chapter III, and is entitled ‘Exclusion’, provides in paragraph 1(a) thereof – a provision comprising two sentences which reflect the two subparagraphs of Article 1D of the Geneva Convention – as follows:

‘1. A third-country national or a stateless person is excluded from being a refugee if:

(a) he or she falls within the scope of Article 1D of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, those persons shall ipso facto be entitled to the benefits of this Directive.’

16. Article 13 of Directive 2004/83, in Chapter IV (‘Refugee status’), is entitled ‘Granting of refugee status’, and is worded as follows:

‘Member States shall grant refugee status to a third-country national or a stateless person who qualifies as a refugee in accordance with Chapters II and III.’

17. Directive 2004/83 was repealed with effect from 21 December 2013 by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. (4) In accordance, however, with recital 50 of the latter directive, the United Kingdom of Great Britain and Northern Ireland did not take part in the adoption of that directive and is not bound by it or subject to its application.

18. Directive 2004/83 continued, however, to apply to the United Kingdom despite the fact that it was repealed and replaced by Directive 2011/95.

C. National law

19. The key provisions of UK law transposing Directive 2004/83 are contained in The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (5) and the Immigration Rules (‘the 2006 Regulations’). (6)

20. Pursuant to regulation 2 of the 2006 Regulations, ‘refugee’ means a person who falls within Article 1(A) of the Geneva Convention and to whom regulation 7 does not apply. Regulation 7(1) provides that ‘a person is not a refugee, if he...