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European Court of Justice clarifies test by which stateless persons of Palestinian origin should be granted refugee status


The European Court of Justice has handed down judgment in a claim referred to it by the First-tier Tribunal (Immigration and Asylum Chamber) raising four questions concerning the circumstances in which a stateless person of Palestinian origin should be afforded refugee status.

The underlying claim NB and AB v Secretary of State for the Home Department was brought by the family of a severely disabled child who had previously resided in the Al Bass refugee camp (Lebanon) under the auspices of the United Nations Relief and Works Agency (“UNRWA”). The claimants argued that they could not return to Al Bass because UNRWA was not capable of providing adequate support to the child and because the discriminatory treatment that he (and the family) had suffered there amounted to persecution.

Directive 2004/83/EU sets out the minimum standards for the qualification of stateless persons as refugees. In short, the claimants had to show that the protection and assistance of UNWRA had “ceased for any reason” (for the purposes of Article 1D of the Geneva Convention) in order to qualify for refugee status.

The referring court asked four questions concerning the proper test to be adopted, when assessing this question, and the evidence that might be relevant to the Court’s assessment. In summary, the European Court held that:

  1. When assessing whether assistance and protection has ceased, it is necessary to consider not only the reasons why the applicant left the UNRWA area of operations but also the current conditions in that area.
  2. Where an applicant can show that they left the UNRWA area of operations because protection has ceased, the burden lies on the Member State to show that those circumstances have changed in the meantime.
  3. It is not necessary to show that UNRWA, or the state in whose territory UNRWA operates, intended to inflict harm on the applicant, or intended to deprive him or her of assistance.
  4. The activities of locally situated NGOs may be taken into account, when determining whether or not protection and assistance has ceased but only if those NGOs are in a formal relationship with UNRWA, of a stable nature, in which they assist UNRWA in carrying out its mandate.

The Judgment is here.

Marie Demetriou QC and Tim Johnston were instructed to intervene in the reference by the United Nations High Commissioner for Refugees, acting pro bono.