A LEGAL ANALYSIS OF THE EXCLUSION CLAUSE IN DUTCH LAW IN RELATION TO ARTICLE 12(1)(A) QUALIFICATION DIRECTIVE AND ARTICLE 1D OF THE REFUGEE CONVENTION
Author: I. Slimi
University of Amsterdam / Faculty of Law Master Public Law 2017/2018
ABSTRACT
The law appears unambiguous; if you fall within the scope as defined in Article 1A of the Refugee Convention, you are a refugee. Should one take a closer look, you might stumble on the so-called exclusion clauses. The latter means that one might be a refugee, however, for a reason mentioned in the Articles 1D to 1F, that person is excluded from a refugee status. For Palestinian refugees from an UNRWA operational area, Article 1D is applicable. This means exclusion because these persons are expected to benefit from the protection or assistance the other United Nations refugee agency provides. This research concentrates on the legal procedures for Palestinian refugees that fled an UNRWA area and that apply for asylum in the Netherlands. How is their claim for a refugee status assessed in Dutch law? More specifically, to what extent is the exclusion clause implemented by the Dutch government in conformity with European Union law, and subsequently, with international law? The Palestinian refugee situation is to be considered critical if not alarming considering it has been over 70 years after the Palestinian exodus that occurred with the creation of the state of Israel, and that neither a just nor durable solution is in sight yet. Especially in a time when UNRWA is experiencing economic and political complications, it is evidently of importance for a myriad of reasons to address the situation of Palestinian refugees seeking asylum in European countries and to assess the lawfulness of the legal procedure maintained by national authorities in relation to Article 1D of the Refugee Convention.
TABLE OF CONTENTS
CHAPTER I: INTRODUCTION 2
§ 1.1 WHY? 2
§ 1.2 OUTLINE LEGAL FRAMEWORK 3
§ 1.3 METHODOLOGY & STRUCTURE 5
CHAPTER II: BACKGROUND PALESTINE AND UNRWA 6 § 2.1 THE PALESTINIAN DIASPORA 6 § 2.2 UNRWA AND ITS CONTEMPORARY MANDATE 7 CHAPTER III: ARTICLE 1D OF THE REFUGEE CONVENTION 9 § 3.1 APPLICATION AND INTERPRETATION ARTICLE 1D 10
CHAPTER IV: EUROPEAN MIGRATION LAW AND ARTICLE 1D 15
§ 4.1 INTERPRETATION AND APPLICATION OF ARTICLE 1D BY THE CJEU 16
§ 4.2 THE EL KOTT CASE 16
§ 4.3 THE ALHETO CASE 18
CHAPTER V: DUTCH MIGRATION LAW AND ARTICLE 1D 19
§ 5.1 LEGAL FRAMEWORK DUTCH IMMIGRATION POLICY 20
§ 5.2 DUTCH JURISPRUDENCE ON ARTICLE 1D 22
CHAPTER VI: OBSERVATIONS 24
§ 6.1 OBSERVATIONS ARTICLE 1D OF THE REFUGEE CONVENTION 24
§ 6.2 OBSERVATIONS EUROPEAN MIGRATIONS LAW AND ARTICLE 1D 25
§ 6.3 OBSERVATIONS DUTCH MIGRATION LAW AND ARTICLE 1D 26
CHAPTER VII: CONCLUSION 29
BIBLIOGRAPHY 32
ANNEX I Paragraph C2/3.2 Vc 2000 36
CHAPTER I INTRODUCTION
§ 1.1 WHY?
At the beginning of 2018, I spent several days in Palestinian refugee camps Chatila and Sabra, adjacent to Beirut in Lebanon. These refugee camps have a reputation of violence and poverty due to a myriad of restrictions and exclusions established by the Lebanese government for Palestinian refugees. It is furthermore the place where the notorious Chatila and Sabra Massacre took place on the night of 14/15 September 1982.1 My experience was a rather special one: I was invited by a family residing in the camp to have dinner, go to a local wedding and to sleep at their home. The family consisted of two relatively young parents with two adorable daughters. I was introduced to them when I visited a local NGO at the heart of the Chatila camp and, after dancing Dabkeh – a traditional Palestinian dance – and talking to the children and NGO staff, I was supposed to sleep at the ‘hostel’ inside the NGO for visitors. However, because of the unusual frequency of power cuts that day and the fact that I was the only visitor, the mother Malek suggested I spend the night at their home. Illustrations are needed to provide an appropriate idea of the conditions in which the people in this camp live. The physical conditions are however a minor detail compared to the daily mental struggle faced by the inhabitants of not only this camp, but also the other 11 Palestinian refugee camps in Lebanon.2 This mental struggle is best reflected through a conversation I had with one of the young girls, age 12. She explained in all simplicity why she was so realistic about her future: “I am born here in the camp, I wish to one day become a pilot or even a stewardess, but we don’t get a passport so we cannot travel and we are not allowed to study for and work in most of the well-paid jobs according to the Lebanese law, and even if I fight for it (red: request permission from the Lebanese government) I am not allowed to work for any airline because I am a Palestinian refugee”. The reality is surely more complicated than her explanation, although it would be an understatement to say that the vicious
1 Seth Anziska, ‘A Preventable Massacre’, New York Times (New York, 16 September 2012)
<https://www.nytimes.com/2012/09/17/opinion/a-preventable-massacre.html> accessed on 10 May 2018; Interview with Noam Chomsky, Rashid Khalidi and Ellen Siegel, ‘Noam Chomsky: Sabra & Shatila Massacre That Forced Sharon’s Ouster Recalls Worst of Jewish Pogroms’, Democracy Now, 14 January 2014) <https://www.democracynow.org/2014/1/13/noam_chomsky_sabra_shatila_massacre_that> accessed on 10 May 2018.
2 UNRWA, ‘Where We Work: Lebanon’, <https://www.unrwa.org/where-we-work/lebanon> accessed on 5 May
cycle for the ordinary Palestinian refugee in Lebanon is disquieting. To hear from a 12 year old that she knows what kind of fate awaits her and her future children, namely the unlikelihood to escape the life in the camps because of her nationality (or rather statelessness), kept me awake all night. It is from this point on that I started to question the exact protection or assistance the United Nations Relief Works Agency for Palestine Refugees in the Near East (UNRWA) is providing that, supposedly, replaces the need for Palestinian refugees to claim international protection elsewhere, whilst there is no foresight of entitlement to all the rights a nationality offers in the UNRWA operational areas.
With my story, I hope to have introduced the problem connected to the exclusion of the benefits in the Refugee Convention.3 The prospect of living an entire life as refugee and passing this strain on to your children is detrimental and demeaning for any human being. This inspired me to evaluate the application of the exclusion clause phrased in Article 1D of the Refugee Convention in the country where I live: the Netherlands. The ambiguity is that a person born refugee, by accepting and availing UNRWA’s protection or assistance, is excluded from the benefits of the Refugee Convention. Thus, the reality is that a Palestinian refugee is not considered a Convention Refugee and that therefore cannot in principle acquire a refugee status outside the UNRWA territory because of the exclusion clause. This contradiction initiated my curiosity for the subject and explains why I chose it.
§ 1.2 OUTLINE LEGAL FRAMEWORK
Pursuant to international refugee law, Article 1A of the Refugee Convention defines the criteria for acquiring the status of a refugee. However, the legal regime regulating the definition and benefits of a refugee status contains a clause that affects in particular Palestinian refugees. According to Article 1D of the Refugee Convention and further mentioned in paragraph 7(c) of the UNHCR Statute:4
3 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS
137 (Refugee Convention).
“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 protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively 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.”
Today, the application of Article 1D of the Refugee Convention is confined to one group of refugees. Namely, the Palestinian refugees that are registered under the UNRWA in the operational areas of Jordan, Lebanon, Syria, the Gaza Strip and the West Bank including East-Jerusalem. An exception to the exclusion is incorporated in the second paragraph, thus resulting in Article 1D consisting of both an exclusion clause (paragraph 1) of a refugee status as determined in Article 1A of the Refugee Convention and an inclusion clause (paragraph 2) from the exclusion to the refugee status. The Article is mirrored in European Union law as Article 12(1)(a) of the Qualification Directive (QD) and is consequently to be implemented by the European Union Member States into their national laws.5 The interpretation of the text in Article 1D remains a topic of debate under academics and legal practitioners, in particular the meaning of ‘for any reason’ in the second paragraph as it suggests an extensive scope of possibilities for cessation. A consequence of this language, is that compliance with international refugee law and European Union law becomes challenging to examine and enforce, whereas compliance is of such crucial importance for the future of over a 5 million Palestinian refugees considered to avail protection or assistance from UNRWA.6 This evaluative research concentrates on the compliance by the Netherlands, a European Union Member State, regarding the implementation of Article 12(1)(a) Qualification Directive in its Immigration Policy Guidelines formulated in paragraph C2/3.2 Vreemdelingencirculaire 2000. The central research question therefore is:
5 Council 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 a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) [2011] OJ L 337/9-337/26 (Council Directive 2011/95/EU).
To what extent is the Dutch exclusion policy with regard to Palestinian refugees from an UNRWA operational area, seeking asylum in the Netherlands, in conformity with Article 12(1)(a) of the Qualification Directive and Article 1D of the Refugee Convention?
§ 1.3 METHODOLOGY & STRUCTURE
The most important concepts focused on in this thesis are firstly, the position of Palestinian refugees from UNRWA operational areas that seek asylum in the Netherlands and secondly, the application of the exclusion clause for Palestinian refugees in international and European migration law. The research tools used are primarily literature, guidelines, jurisprudence and exchange of knowledge with the Palestinian Mission in The Hague and Lex Takkenberg, author of ‘The Status of Palestinian Refugees in International Law’. The two most influential CJEU cases, El Kott and Alheto, legal opinions, and their relevance for the Dutch practice will be discussed extensively considering their actuality and in-depth analysis. The goal of this research is twofold. Firstly, the aim is to evaluate whether the assessment of the exclusion clause by Dutch authorities complies with international as well as European migration law. Secondly, the aim is to add to the body of academic literature on Palestinian refugeehood by shedding light on their situation and hopefully provide clarity for Dutch authorities and legal practitioners.
This thesis is a comparative law study. It aims to describe a multilayered normative framework by the interpretations and applications adopted by the international community, the European Union and the Netherlands. In addition, it aims to evaluate similarities and differences between the vertical legal systems. The research is conducted with an internal legal and an external perspective with the far-reaching normative aim of harmonization of law. The research includes a descriptive study of the legal regime for Palestinian refugees, and can highlight idiosyncrasies on different levels (international, European Union and Dutch law). Prescriptive elements are present as well in the sense that the aim is to – in case of discrepancy with international law – advise on improvement of the application more effectively and justly within the legal order related to Article 1D of the Refugee Convention. The normative principles will be discussed thoroughly, yet the preference for reading the first paragraph of Article 1D is by way of a restrictive interpretation, and the preference for reading the second paragraph of Article 1D is by way of
teleological interpretation, meaning that it is essential to comprehend the raison d’être of the paragraph with the peculiar situation of Palestinian refugees in mind.
The thesis structure is as follows. Firstly, relevant background information on the research object will be discussed in chapter II. Chapter III covers the history, scope and current application and interpretation of Article 1D of the Refugee Convention according to authoritative sources such as the United Nations High Commissioner for Refugees (UNHCR) Guidelines. The application and interpretation by the Court of Justice of the European Union (CJEU) on the exclusion clause are covered in chapter IV. Chapter V focuses on application and interpretation by the Dutch authorities with regard to the exclusion clause as implemented in their Immigration Policy Guideline. Chapter VI reflects my observations thus far and, finally, chapter VII concludes my research.
CHAPTER II
BACKGROUND PALESTINE AND UNRWA
Two different United Nations refugee agencies: one for Palestinian refugees, this is the UNRWA, and one for ‘regular’ refugees, the UNHCR. Both agencies are operating in similar states, such as for instance in Jordan and Lebanon, but under different mandates. This might at first glance sound excessive and curious; why would the United Nations empower two agencies with different legal regimes for refugees, and why are Palestinian refugees so exceptional that the international community accorded them a distinct refugee agency? Answering these questions to a certain extent is essential to comprehend the exclusion clause enclosed in the Refugee Convention central to this thesis.
§ 2.1 THE PALESTINIAN DIASPORA
Since the Nakba in 1948, known as the Palestinian exodus, when 700,000 Palestinians were forced to flee their country of origin by the occupier Israel, a significant amount of the population
sought refuge in the neighboring countries such as Lebanon, Jordan and Syria.7 In all probability it did not cross the minds of these new refugees that their own generation, and generations to come, would remain labeled refugees until today. At present, as a result of the uprising and followed internal armed conflict in Syria since March 2011, Palestinian refugees fled Syria to for instance Lebanon. So far UNRWA has recorded over 32,000 Palestinian refugees from Syria in Lebanon alone.8 Unlike Syrian refugees, Palestinian refugees are required to remain with UNRWA and not to register with the UNHCR, even though this particular group is considered to be as, if not more, vulnerable and dependent on humanitarian aid.9
§ 2.2 UNRWA AND ITS CONTEMPORARY MANDATE
Before the establishment of UNRWA, the Conciliation Commission on Palestine (UNCCP) was called into existence by the United Nations to provide diplomatic and legal protection to Palestinian refugees, including facilitation of durable solutions on their behalf.10 UNRWA was established by the General Assembly on the 8th of December 1949 in resolution 302 (IV), with the initial mandate to provide for ‘direct relief and works programmes in order to prevent conditions of starvations and distress… and to further conditions of peace and stability’.11 The General Assembly has repeatedly renewed the mandate of UNRWA, with a current extension until 30 June 2020.12 Over the years, the mandate underwent changes and is nowadays no longer limited to the text of resolution 302 (IV).13 The development of the agency’s mandate is notably a result of the discontinuation of the UNCCP by 1950. The first mandate adopted by the General Assembly concerning UNRWA at first covered assistance alone, as Article 1D implies that either protection or assistance has to be provided by a United Nations refugee agency for the exclusion
7 Lex Takkenberg, The Status of Palestinian Refugees in International Law (Clarendon Press, Oxford 1998) 53-65;
Eugene Rogan, The Arabs: A History (Penguin 2009) 311-348.
8 Lebanon: Protection at UNRWA in 2017 (2018),
https://www.unrwa.org/sites/default/files/2018.2_unrwa_lfo_protectionin-factsheet_2017_vf.pdf (accessed on the 29th of May 2018).
9 UNHCR, ‘International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic Update
IV’ (Update IV, November 2015); Noura Erakat, ‘Palestinian Refugees and the Syrian Uprising: Filling the Protection Gap during Secondary Forced Displacement’ [2014] 26 IJRL, 583-584,
10 Terry Rempel, ‘The United Nations Conciliation Commission for Palestine, Protection, and a Durable Solution for
Palestinian Refugees’ [2000] 5 BADIL.
11 UNGA Res 302 (IV) (8 December 1949); Erakat, ibid 581-584;
12 UNRWA website, https://www.unrwa.org/who-we-are (accessed on the 30th of May 2018). 13 Lance Bartholomeusz, 'The Mandate of UNRWA at Sixty' [2009] 28 RSQ 452, 473-474.
to be applicable.14 With the UNCCP being defunct, the mandate of UNRWA however evolved into providing forms of protection.15 The evolvement and expansion of responsibilities of the UNRWA is furthermore because of General Assembly resolutions, along with requests from other organs as a response to the frequent developments in political, operational and financial context in the Middle East.16
Currently, UNRWA focuses on services encompassing education, health care, relief and social services, camp infrastructure and improvement, microfinance and emergency assistance in the areas of operation.17 The operational definition of ratione personae used to be limited to Palestine refugees and descendants of Palestine refugee males, including legally adopted children.18 The personal scope of Article 1D was addressed and actualized by the UNHCR in its recently published guidelines concerning Article 1D.19 Today, three categories of Palestinian refugees are distinguished:
The first group includes Palestine refugees: these are persons who are “Palestine refugees” in the sense of Resolution 194 (III) as defined above. This group covers in essence those that were displaced from that part of Mandate Palestine which became Israel and were unable to return as a result of the 1948 Arab-Israeli conflict.
The second group includes Displaced persons: these are the persons in the sense of Resolution 2552 (ES-V) who have been displaced from the Palestinian territory occupied by Israel since
14 UNGA Res 302 (IV) (8 December 1949).
15 Brailsford, ibid 2-6, 24; Bartholomeusz, ibid 469-473; Inter-Agency Standing Committee, Growing the Sheltering Tree: Protecting Rights through Humanitarian Action [2002]; James Hathaway, The Law of Refugee Status (second
edition, Cambridge University Press 2014) 520-521; Akram S, Closing Protection Gaps: Handbook on Protection of
Palestinian Refugees in States Signatories to the 1951 Convention (second edition, Badil Resource Center for
Palestinian Residency & Refugee Rights 2015) 51-53 ‘due to overlaps between some forms of assistance activities may be considered types of protection because they relate to securing the basic rights of refugees’.
16 UNGA Res 194 (III) (11 December 1948); Bartholomeusz, ibid 452, 473-474.
17 Operational areas are Jordan, Lebanon, Syria, the Gaza Strip and the West Bank, including East-Jerusalem;
Bartholomeusz, ibid; Mark Brailsford, 'Incorporating Protection into UNRWA Operations', conference paper, 'Relief and Works to Human Development: UNRWA and Palestinian Refugees After 60 Years' [2010]; UNRWA, https://www.unrwa.org/who-we-are?tid=93 (accessed on the 29th of May 2018).
18 Report of former Secretary General Dag Hammarskjöld, ‘On the Continuation and Improvement of UNRWA’
(1959) UN Doc A/4121 available on http://www.un.org/depts/dhl/dag/time1959.html; Takkenberg, ibid (no. 7) 49-45 and 68–83; UNRWA, ‘Consolidated Eligibility and Registration Instructions’ (latest version issued in 2009);
19 UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention
1967 and have been unable to return as a result of the 1967 conflict. It also includes those persons displaced by subsequent hostilities.20
The third group includes Descendants: these are all persons born to Palestine refugees or displaced persons.21 Descendants are no longer confined to those descending from the male line, adhering to the principles of gender equality and non-discrimination.
The term “Palestinian refugee” is used in this thesis and encompasses all three categories discussed above.
In conclusion, the initial mandate of UNRWA was limited to that of a subsidiary organ next to the UNCCP. Today however, UNRWA evolved into being the primary agency for Palestinian refugees in its operational areas whilst covering assistance as well as forms of protection.
CHAPTER III
ARTICLE 1D OF THE REFUGEE CONVENTION
Prior to the creation of the new legal refugee regime following the establishment of the UNHCR, the Refugee Convention and the UNHCR Statute, the final exclusion clause in Article 1D had largely been considered.22 The distinction between Palestinian refugees and ‘regular’ refugees was supported by nearly all drafters to preserve a heightened attention for the Palestinian situation. The distinction is moreover related to the fact that Palestinian refugeehood arose from a decision taken by the United Nations. Unlike the situation where a person becomes a refugee pursuant to an incident contradictory to the general principles of the United Nations, Palestinian
20 UNGA Res. 2552 (ES-V), 4 July 1967; The resolution that extended UNRWA’s mandate to those displaced by
subsequent hostilities is UNGA Res. A/RES/37/120, 16 December 1982.
21 UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention
relating to the Status of Refugees to Palestinian Refugees’ (December 2017) 6.
22 Erakat, ibid 585-587; UNGA, Fifth Session, Official Records, Third Committee, 328th Meeting (27 November
1950) UN doc. A/C.3/SR.328 (Mr. Baroody, Saudi Arabia) paras 52-55; Takkenberg, ibid (no. 7) 62; Brenda Goddard, ‘UNHCR and the International Protection of Palestinian Refugees’ [2009] 28 RSQ 482-489; Takkenberg, ibid (no. 7) 65-67; UNHCR, ‘Revised Note on the Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestinian Refugees’ (October 2009).
refugeehood was the direct consequence of the 1948 Partition Plan for Palestine, introduced by the United Nations itself.23 In the following paragraph I will address the application and interpretation of Article 1D as upheld today in international refugee law.
§ 3.1 APPLICATION AND INTERPRETATION OF ARTICLE 1D
In the context of international refugee law, guidelines issued by the UNHCR, although not binding, have acquired authoritative influence on the interpretation of clauses in the Refugee Convention.24 It is for this reason that the interpretation according to the UNHCR is used to analyze the contemporary application and interpretation of Article 1D in this thesis. There are essentially two purposes that guide the application and interpretation of Article 1D. The first purpose is to ensure that Palestinian refugees continue to be recognized as a special class of refugees and receive the protection and associated rights until their position has been definitively settled in accordance with the relevant resolutions of the United Nations General Assembly.25 The second purpose is to avoid duplicating and overlapping competencies between UNHCR and UNRWA; the responsibilities of the two agencies are intended to be complementary.26 I will now first address the application and interpretation of the exclusion paragraph, followed by the inclusion paragraph.
23 United Nations Department of Public Information ‘The United Nations and the Question of Palestine’ (November
2002) DPI/2157/REV.1; Marguerite Perin, ‘European and International Law and Palestinian Refugees: Bolbol, El Kott and the Application of Article 1D of the Geneva Convention’ [2014] 3 UCL Journal of Law and Jurisprudence 87–114.
24 Protocol Relating to the Status of Refugees (31 January 1967, entered into force 4 October 1967) 606 UNTS 267
(1967 Protocol); In December 2017, the UNHCR published ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees’. In this document the UNHCR replaces the UNHCR ‘Revised Note on the Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestinian Refugees’ (October 2009) and all previous relevant guidance. The ‘Note on UNHCR's Interpretation of Article 1D of the 1951 Convention relating to the Status of Refugees and Article 12(1)(a) of the EU Qualification Directive in the context of Palestinian Refugees seeking International Protection’ from May 2013 remains applicable.
25 General Assembly, Fifth Session, Official Records, Third Committee, 328th Meeting, 27 November 1950, paras
52, 55 (Mr. Baroody, Saudi Arabia), UN doc. A/C.3/SR.328; Case C-364/11 Mostafa Abed El Karem El Kott, Chadi
Amin A Radi, Hazem Kamel Ismail v Bevándorlási és Állampolgársági Hivatal [2012] ECLI:EU:C:2012:826 para
62-80.
26 Guy Goodwin-Gill & Jane McAdam, The Refugee in International Law (third edition, Oxford University Press
2007) 152; Goddard, ibid 482-494; Erakat, ibid 587-589; UNHCR, ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ (reissued in Geneva, December 2011) HCR/1P/4/ENG/REV. 3, 28.
Palestinian refugees receiving or eligible to receive protection or assistance of UNRWA are excluded from protection under the Refugee Convention. The latter is the essence of what is called the ‘exclusion clause’ pursuant to the first paragraph of Article 1D. Contrary to what the first phrase seems to imply, namely that persons within the scope of this clause are not to be considered refugees, Article 1D ensures continuity of protection for people who are already recognized as refugees by the international community. The Palestinians that fall within the scope of Article 1D are discussed in § 2.2. The words “at present receiving” are understood to mean those Palestinian refugees actually receiving and those eligible to receive the protection or assistance of UNRWA.27 In the view of the UNHCR, the continuing refugee character and entitlement to protection for Palestinian refugees is acknowledged and preserved through this interpretation.28
The second part of the Article covers an inclusion clause within the exclusion; it operates to include into the refugee definition those Palestinian refugees who no longer enjoy the protection or assistance from UNRWA. This part concerns the duration of the exclusion and the legal consequences once the exclusion ceases to apply.29 It must be noted that the first part is a sine qua non to the second part of Article 1D, and that thereupon the second part is inseparably linked to the first part.30 The UNHCR premise is that Palestinians refugees who previously fell under Article 1D were already recognized by the international community as refugees and, consequently, do not require a separate or additional assessment to be covered under the second paragraph of Article 1A for them to qualify as Convention refugees.31 The phrase “for any reason” leaves a broad possibility for circumstances other than the cessation of UNRWA’s
27 The contemporary interpretation of “at present receiving” significantly differs from the interpretation given in the
past. Hathaway and Takkenberg for example advocated a rather historically bound explanation (“at present” means the date on which the Convention was adopted; James Hathaway, The Law of Refugee Status (2nd edn, Cambridge
University Press 2014) 513-514).
28 UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention
relating to the Status of Refugees to Palestinian Refugees’ (December 2017) 6-7.
29 Takkenberg, ibid (no. 7) 106.
30 Case C-364/11 Mostafa Abed El Karem El Kott, Chadi Amin A Radi, Hazem Kamel Ismail v Bevándorlási és Állampolgársági Hivatal [2012] ECLI:EU:C:2012:826, Opinion of AG Sharpston, para 23; Case C-31/09 Nawras
Bolbol v Bevándorlási és Állampolgársági Hivatal [2010] ECR-I05539, Opinion of AG Sharpston, paras 48-56.
31 UNHCR (December 2017), No. 13: Applicability of Article 1D of the 1951 Convention relating to the Status of
mandate, which was primarily envisaged by the drafters of the Refugee Convention.32 The phrase is not to be construed restrictively and neither is exclusion of Palestinian refugees intended to be absolute and permanent, but instead conditional and temporary.33 In El Kott the Court of Justice of the European Union (CJEU) reasoned that objective reasons include those that are beyond the control of a person.34 Also, protection or assistance cannot be regarded as ceased within the meaning of the second paragraph of Article 1D when a Palestinian refugee can safely enter the UNRWA area of operation, provided that he or she has no objective reason for not benefitting from UNRWA’s protection or assistance. Thus, to properly carry out the inclusion assessment, UNRWA’s activity in the host country, individual circumstances of the applicant and up-to-date information of the situation in the host country must be examined.35 Objective reasons are considered to include the following categories:36
Termination of the mandate of UNRWA
Required for this objective reason is a resolution of the United Nations General Assembly terminating UNRWA’s mandate.37
Inability of UNRWA to fulfill its protection or assistance mandate
Determination of the discontinuation of UNRWA’s protection or assistance in an area of operations or on a country-wide basis would be needed. This determination would affect all Palestinian refugees. Inability occurs in the scenario that it becomes impossible for UNRWA to carry out its mission.38
32 AD (Palestine) [2015] NZIPT 800693-695, New Zealand: Immigration and Protection Tribunal, available at:
http://www.refworld.org/cases, NZ_IPT, 56b1bcc24.html [accessed 8 October 2018], para 99.
33 AD (Palestine), para 99f.
34 El Kott, para 58. The interpretation and application by the CJEU of article 1D is further discussed in § 4.
35 Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Researching Country of Origin Information: Training Manual, October 2013, available at: http://www.refworld.org/docid/5273a56b4.html [accessed 8 October 2018], 12-14.
36 UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention
relating to the Status of Refugees to Palestinian Refugees’ (December 2017) 9-13.
37 Following the recent decision by the Trump administration to halt the funding for UNRWA and voices like Jared
Kushner, son-in-law of Donald Trump, on voting on the continuation of UNRWA’s mandate, questions have been raised to this possibility and the consequences thereof, see Francesca Albanese, ‘UNRWA and Palestine Refugee Rights: New Assaults, New Challenges’ [2018] Institute for Palestine Studies, accessed on the 26th of November
2018: https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:726b964e-e967-4cfd-9a91-6f81773a6fbc.
38 To determine the inability, evidence may be established with a resolution of the United Nations General Assembly,
Threat to the applicant’s life, physical integrity, security or liberty or other serious protection-related reasons
It is not required of Palestinian refugees to establish that their treatment constitutes persecution within the meaning of the second paragraph of Article 1A, bearing in mind that they are already internationally recognized refugees. According to the UNHCR, a range of threats can urge a Palestinian refugee to leave UNRWA’s area of operation.39 In this case protection and assistance cease for the applicant. For threats that arise from authorities of the host states, protection from UNRWA must be available to the applicant in order for the exclusion clause to apply. Where authorities of the host states are unable or unwilling to provide protection against threats arising from non-State actors, protection or assistance from UNRWA is not relevant for the assessment. The reason is that non-State actors, like UNRWA, lack the instruments and are not in a position to provide adequate protection and enforce the rule of law in a similar manner as a state.40 Consequently, the inclusion paragraph applies.
Practical, legal and/or safety barriers preventing an applicant from (re)availing him/herself of the protection or assistance of UNRWA
Practical barriers include obstacles which prevent access to the UNRWA area of operation, such as border closures. Legal barriers include absence of documentation allowing the individual to travel to, or transit through, or (re)enter and reside in the relevant UNRWA area of operation. This objective reason is not applicable if the applicant seeks to frustrate (re)admission and stay by for example refusing to co-operate in acquiring documents. Barriers relating to safety or personal security which prevent (re)availment could include dangers en route, such as minefields, factional fighting, threat of harassment, violence or exploitation preventing the applicant from being able to return safely. An abstract assessment of the situation is insufficient. The UNHCR recalls the significance of the situation in the host state, taking into consideration the fact that the forward by the applicant. The suspension of non-core services for a short period of time would however not suffice, as is explained in El Kott, para 56.
39 UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention
relating to the Status of Refugees to Palestinian Refugees’ (December 2017) 11.
40 An initiative from Oxford University suggests attributing statehood characteristic to a transnational polity named
‘Refugia’, creating a linked set of territories and spaces connecting refugees into a polity that is neither a new nation state nor simply an international organization, but has some characteristics of both. For more information:
host state will control the feasibility of (re)availment in an UNRWA area of operation. No assumption is to be made that a Palestinian refugee is able to access protection or assistance of UNRWA in an area of operation where they have never resided. As I will go on to show, the lack of up-to-date information in this respect becomes crucial when I discuss national case law.
One or more of the objective reasons may be present and bring the applicant within the scope of the second paragraph of Article 1D. It must be noted, however, that the reasons why one has left an UNRWA area of operation are not in itself determinative. It is pivotal whether protection or assistance of UNRWA has ceased due to one or more of the objective reasons for leaving or preventing the applicant from (re)availing him or herself of UNRWA’s protection or assistance.41
With regard to automatic entitlement to the benefits of the Refugee Convention, it is established that, once cessation of protection or assistance from UNRWA is determined in the case of the Palestinian refugee, he or she falls under the protection granted by the provisions pursuant to the Refugee Convention on the condition that the Articles 1C, 1E or 1F do not apply.42 The meaning of the ‘benefits of the Refugee Convention’ refer to the substantive rights provided in Article 2 to 34. 43
In sum, application of Article 1D requires an assessment in two steps. Primarily, it must be asserted whether the applicant falls within the category of Palestinian refugees who are receiving or eligible to receive the protection or assistance of UNRWA. Secondary, it must be asserted whether the protection or assistance of UNRWA has ceased for any reason. The competent national authority has the responsibility to assess the application on an individual basis and to consider all of the available evidence. Whether the applicant is unable to or unwilling to (re)avail himself or herself of the protection or assistance of UNRWA for a reason beyond his or her
41 Takkenberg, ibid (no. 7) 114-115.
42 James Hathaway, The Law of Refugee Status (2nd edn, Cambridge University Press 2014) 517-522; UNHCR,
‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees’ (December 2017) 14.
43 Takkenberg, ibid (no. 7) 123; UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D
control, should be an ex nunc assessment, examining the facts and circumstances of the case at the time the individual claim is considered.44
CHAPTER IV
EUROPEAN MIGRATION LAW AND ARTICLE 1D
The legal framework for refugees in general as well as for Palestinian refugees is included in Directive 2011/95/EU, also known as the Qualification Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection. The purpose of this specific directive is to ensure a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. For the Member States of the European Union, an Article similar to the exclusion clause of Article 1D of the Refugee Convention is reflected in Article 12(1)(a):45
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 1(D) 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;
In this chapter I will focus on the interpretation by the CJEU in respect to the exclusion clause.
44 UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention
relating to the Status of Refugees to Palestinian Refugees’ (December 2017) 16-20.
§ 4.1 INTERPRETATION AND APPLICATION OF ARTICLE 1D BY THE CJEU
Because of the inclusion of Article 1D in the Qualification Directive as Article 12(1)(a), the CJEU is assigned the difficult task of clarifying and, in the case of preliminary questions, interpret the reflection of the Article in European Union law. In interpreting Article 1D thus far, the CJEU signaled two contended points. The first one being whether refugees should automatically benefit from protection under the second paragraph of Article 1A of the Refugee Convention or whether they should meet additional requirements, once the protection or assistance previously provided by UNRWA has ceased.46 The second point is how to determine the conditions to be met in order for the exclusion clause to be applicable. The line of interpretation by the CJEU (formerly ECJ) is best demonstrated through two cases in which an in-depth analysis was carried out by the judges as well as the Advocates General, namely the El Kott and Alheto case.
§ 4.2 THE EL KOTT CASE
In El Kott, the ECJ addressed the explanation of Article 12(1)(a) QD with regard to the phrasing “such protection or assistance has ceased for any reason”. In this case the ECJ examined the personal safety of refugees in the context of refugee camp violence as a motive for departure from their country of habitual residence. The three applicants left UNRWA refugee camps in Lebanon and based their claim on threats to their security by residing in these camps. All three Palestinians lodged asylum applications in Hungary but were refused refugee status. The ECJ found that the ground for exclusion under Article 1D Refugee Convention must be construed narrowly. The first part of the Article, the ECJ states, cannot be explained as meaning that mere absence or voluntary departure from UNRWA’s area of operations would be sufficient to end the exclusion from refugee status.47 The ECJ argues that it is necessary to view the ground for exclusion in the first sentence of Article 12(1)(a) QD as not only covering those that currently avail themselves of UNRWA’s protection or assistance, but also those who availed themselves thereof shortly before submitting an asylum claim in a Member State, provided that the second sentence of Article 12(1)(a) QD is not applicable. Furthermore, according to the ECJ, it is necessary to identify the conditions under which the protection or assistance provided by
46 Perin, ibid 91. 47 El Kott, paras 49-52.
UNRWA is to be regarded as ceased “for any reason”. A situation in which it is impossible for UNRWA to carry out its mission is moreover to be taken into consideration.48 The wording of Article 12(1)(a) QD “when such protection or assistance has ceased” is to be construed as that it is primarily the actual protection or assistance provided by UNRWA, not the existence of that agency itself which must cease in order for the inclusion of the second sentence to apply.49 It is for the national authorities to carry out an individual assessment of all relevant factors by analogy of Article 4(3) QD, bearing in mind the objective of Article 1D Refugee Convention, that a Palestinian refugee must be regarded as having been forced to leave UNRWA’s operational area if: his personal safety is at serious risk and if it is impossible for that agency to guarantee that his living conditions in that area will be commensurate with the mission entrusted to that agency.50 Similar questions on the interpretation arose in the previous Bolbol case, in which the applicant from the Gaza Strip had never availed of neither protection nor assistance by UNRWA before seeking asylum in Hungary.51 The ECJ clarified in particular the requirement of availment of protection and assistance by the agencies of the United Nations.
Advocate General Sharpston reflects in her Opinion of the El Kott case on the conclusions reached in the Bolbol case with regard to the guiding principles of the Refugee Convention, namely that (1) While receiving UNRWA assistance, a displaced Palestinian is excluded from the scope of the Convention (2) A displaced Palestinian not receiving UNRWA assistance is not excluded from that scope but must be treated like any other applicant for refugee status (3) A displaced Palestinian who has received UNRWA assistance but can no longer do so, ceases to be excluded from the scope of the Convention.52 According to the Advocate General, entitlement to the benefits of the Directive are triggered by way of cessation of protection or assistance in the case of (a) Cessation of UNRWA or some other event rendering it incapable of providing assistance; or (b) Any event beyond a beneficiary’s control or independent of his volition which means that he is unable to receive assistance. In the next paragraph I will discuss the application of these criteria in the most recent case of the CJEU with regard to the exclusion close: the Alheto case.
48 El Kott, para 56. 49 El Kott, para 57. 50 El Kott, paras 60-63.
51 Case C-31/09 Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal [2010] ECR-I05539. 52 El Kott, Opinion of AG Sharptson, para 23; Bolbol, Opinion of AG Sharpston, paras 48-56 and 90.
§ 4.3 THE ALHETO CASE
For the first time since the El Kott case from 2012, the CJEU recently elaborated on the approach in assessing an asylum application from a Palestinian refugee. On the 25th of July 2018, the CJEU delivered a judgment in the case of Serin Alheto.53 Ms. Alheto is a Palestinian and fled the Gaza strip, her habitual residence, for Jordan where she stayed for a short time before travelling to Bulgaria and applied for international and subsidiary protection. Her application was rejected, and Ms. Alheto brought an action before the Sofia Administrative Court. This court stayed the proceedings and asked the CJEU preliminary questions. In answering these questions, the CJEU stresses the importance of the national court or tribunal before which an appeal is brought to carry out a fully up-to-date examination of the case, taking into account all the facts and points of law which appear relevant, including those not in existence when the body in question adopted its decision.54 Hence, they require the courts to apply an ex nunc test and not defer to the administrations discretion. This is the explanation given by the CJEU for Article 46(3) of the Procedure Directive read in conjunction with Article 47 of the United Nations Charter.55 Nonetheless, the competence to adopt a new decision following the annulment by the court of the initial decision on a first application remains attributed to the appointed national authority.56 The CJEU furthermore recalls that individuals may only obtain asylum in the EU on the condition that the applicant is in a position in which his or her personal safety is at serious risk, seeking assistance from UNRWA has been unsuccessful, and when the applicant has been driven due to circumstances beyond his or her control to leave the UNWRA operational area.57 In this case the CJEU sets out the order of assessment:58
Firstly, to determine that the applicant belongs to the category of Palestinian refugees to which the Refugee Convention is not applicable according to the first paragraph of Article 1D.
53 Case C-585/16 Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite [2018]
ECLI:EU:C:2018:584.
54 Alheto, paras 66-70.
55 Council Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common
procedures for granting and withdrawing international protection (recast) [2013] OJ L 180/60 -180/95.
56 Alheto, para 149. 57 Alheto, para 42. 58 Alheto, para 40.
Secondly, to determine whether the second paragraph of Article 1D is applicable as a result of the cessation of protection or assistance provided by UNRWA, taking into consideration the declarations given by the applicant.
Advocate General Mengozzi recalls that it will not be necessary for the Palestinian refugee to prove a fear of persecution and it will suffice to prove that there has been discontinuity in the protection or assistance offered by UNRWA, that a situation of armed conflict prevails, or, more generally, that there is violence and a lack of security that render UNRWA’s protection or assistance ineffective or non-existent.59 With regard to the role of national courts, it is the view of Advocate General Mengozzi that ‘Article 12(1)(a) QD is a sufficiently precise and unconditional clause which can be directly relied upon before national courts’. Therefore, if a party concerned has not raised such a clause of direct effect during the court proceedings, the national judge may apply that clause nonetheless if deemed necessary.60
In conclusion, the discussed European Union case law has influenced national policies of Member States to a large extent, concerning the explanation of Article 1D of the Refugee Convention and subsequently Article 12(1)(a) QD. One might even say it were cases like Bolbol and El Kott that caused the UNHCR to adjust its view in previous guidelines, or perhaps it is more correct to speak of a correlation between case law and soft law. In the next chapter I will discuss how this CJEU case law is received in the Netherlands.
CHAPTER V
DUTCH MIGRATION LAW AND ARTICLE 1D
59 Case C-585/16, Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite, [2018]
ECLI:EU:C:2018:584, Opinion of AG Mengozzi, paras 44-48.
In Dutch migration law Article 29(1)(a) Vreemdelingwet (Alien Act) regulates the criteria for Convention refugees and determines the granting of asylum permits to applicants.61 The Secretary of State for Justice and Security is responsible for assessing and refusing or granting asylum applications. The execution of the assessment of asylum applications is mandated by the Secretary of State to the Immigration and Naturalization Service (IND). Following the Vreemdelingencirculaire 2000 (Dutch Immigration Policy), Article 1D of the Refugee Convention and Article 12(1)(a) QD are reflected in paragraph C2/3.2. This legal framework elaborates on the additional criteria that would exclude an applicant from receiving an asylum permit. The following paragraphs will discuss the different aspects of the Dutch Immigration Policy in respect to the exclusion for Palestinian refugees falling under UNRWA’s mandate.
§ 5.1 LEGAL FRAMEWORK DUTCH IMMIGRATION POLICY
The Dutch Immigration Policy concerning the exclusion clause comprises several criteria connected to the text and interpretation of the first and second paragraph of Article 1D, as well as Article 12(1)(a) QD and the reviewed guidelines published by the UNHCR in December 2017. I therefore discuss the outline of the exclusion clause according to the structure of paragraph C2/3.2 below. The original Dutch version of the document is attached as Annex I.
Paragraph C2/3.2 describes two situations for which the second paragraph of Article 1D applies, essentially mirroring the inclusion clause in the exclusion clause. The first situation is when protection or assistance from a United Nations refugee agency other than the UNHCR has ceased for any reason, and the second situation being that the position of the alien has not been definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations. Protection or assistance is not to be considered as having ceased on the sole fact that the applicant finds himself or herself outside UNRWA’s area of operation or in the case of voluntary departure from UNRWA’s area of operation. In these two cases exclusion is applied by the IND.
61 Convention Refugee or ‘Verdragsvluchteling’ is considered a refugee in conformity with the definition of a
The IND considers protection or assistance to have ceased in three circumstances. The first situation is in the case of termination of the mandate of UNRWA. The second situation is in the case of inability of UNRWA to fulfill its mandate. The third situation is in the case of inability to invoke protection or assistance from UNRWA due to reasons beyond the control of the applicant and independent of his or her volition, that force the applicant to leave the area and, as a consequence, prevent him or her from availing UNRWA’s protection or assistance. As you can see, these clearly echo the UNHCR most recent guidelines and CJEU case law.
On departure for reasons beyond the control of the applicant and independent of his or her volition, paragraph C2/3.2 mentions two conditions and requires the applicant to fall under one of them in order for the exclusion clause to no longer apply. The first condition is described as the case in which there is a threat to the applicant’s life, physical integrity, security or liberty or other serious protection-related reasons. The second condition is described as practical, legal and/or safety barriers preventing an applicant from (re)availing him/herself of the protection or assistance of UNRWA.
The assessment for threat to the applicant’s life, physical integrity, security or liberty or other serious protection-related reasons, requires the IND to adopt an assessment on an individual basis. The first examination includes whether the applicant has a well-founded fear of persecution or a real risk of suffering serious harm inside the UNRWA area of operation. The followed examination includes whether the applicant is able to invoke or receive protection from UNRWA against the actors causing a well-founded fear or real risk. In the case that this particular condition is met, subsidiary protection is granted to the applicant in conformity with Dutch law in Article 29(1)(b) of the Alien Act and in conformity with European Union law in Article 15 Qualification Directive.
Once the exclusion clause pursuant to Article 1D is no longer applicable, and if the applicant is not excluded through Article 1F Refugee Convention, the applicant becomes automatically entitled to the benefits of the Refugee Convention. The IND provides the applicant thereupon with an asylum permit for a definite period of time on the ground of Article 29(1) (a) Alien Act.
The application of this legal framework by the IND and the competent Dutch courts will be analyzed in the next paragraph, based on Dutch case law and legal opinions.62
§ 5.2 DUTCH JURISPRUDENCE ON ARTICLE 1D
The CJEU confirms in the Alheto case that the national judicial instance is in the position to assess the facts of the asylum claim and present its own judgment based on that information, despite previous procedures.63 The CJEU forces an alternation of the course taken by the Afdeling Bestuursrechtspraak van de Raad van State (ABRvS), the Netherlands Council of State, for example in its case of 13 April 2016.64 The ABRvS ordered that it is for the competent national authority to assess and judge the merits of the case, not for the national court in first instance. The task for the national courts is to assess whether the IND established a decision according to the principle of carefulness and motivation.65 From the Alheto judgment it becomes clear that the national court can and must give an independent judgment on the basis of the declarations from the applicant, regardless of whether evidence was provided by him or her to uphold their claim. Consequently, this development in assessing asylum claims requires an intensified examination from the national judges.
In recent cases brought before the court of Roermond and Arnhem on 3 July 2018 resp. 11 July 2018, the judge appears to correct the IND by referring to the guidelines for application of Article 1D for Palestinian refugees as set out in paragraph C2/3.2.66 In the case before the court of Roermond, the judge reminds the IND to follow its own policy, namely the Dutch Immigration Policy, once an applicant is considered a stateless Palestinian refugee.67 The court reiterates that the first step is to assess whether the applicant falls under the scope of UNRWA’s mandate. If this is the case, the IND should assess whether the protection has ceased. In the case that protection has ceased, the court requires the IND to assess whether or not the position of the
62 The data used in the following paragraph is collected through www.rechtspraak.nl and www.vluchtweb.nl. For the
purpose of this analysis I used the search terms ‘UNRWA’, ‘Palestijn’ and ‘Artikel 1D’. The relevant cases found are categorized in Annex 2 and provided with commentaries.
63 Alheto, paras 102-118; Alheto, Opinion of AG Mengozzi.
64 Council of State (ABRvS), 13 April 2016, ECLI:NL:RVS:2016:890, paras 5.2-5.4; Annotation from M. Reneman
in ECLI:NL:RVS:2016:890, AB 2016/195, paras 6-7 (especially 7 and 7.1).
65 Council of State (ABRvS), 13 April 2016, ECLI:NL:RVS:2016:890, para 13.1 – 13.2; Annotation from M.
Reneman in ECLI:NL:RVS:2016:890, AB 2016/195, paras 8-10.
66 District Court of Roermond, 3 July 2018, NL18.6615; District Court of Arnhem, 11 July 2018, NL18.9544. 67 District Court of Roermond, 3 July 2018, NL18.6615, para 14.1.
applicant has been definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations. Should it appear that the answers to the mentioned questions result in the applicant no longer being confined to the exclusion clause of Article 1D and that the applicant is not excluded because of a 1F-act, it is to be assumed by the IND in line with the Dutch policy that the provisions in the Refugee Convention are applicable and that the IND grants an asylum residence permit to the applicant. The court, in this case, uses clear language on the procedure for Palestinian refugees lodging asylum applications. However, the judgment remains superficial and simply reminds the national authority to follow the prescribed order and procedure. The court of Arnhem also sets out the procedure and policy concerning Article 1D and restricts itself too by solely referring to paragraph C2/3.2, and reminds the IND of the need for sufficient substantiation of its conclusions.68 In the latter judgment an assessment by the court concerning whether the applicant might have been forced to leave the UNRWA operational area is however initiated, in which the court examines the points made by the IND opposing that the applicant found himself in a situation of facing a risk of a serious and individual threat to his life or person by reason of indiscriminate violence in situations of international or internal armed conflict. The court concludes its assessment by stating that the IND has insufficiently motivated the lack of credibility of the applicant’s situation.69 If, given the facts in these cases, the new decisions to be taken by the IND will result in the Dutch offering protection is (yet) unknown.
An example of the application of the Dutch legal regime for Article 1D after the Alheto judgment by the CJEU is in the case of 12th of September 2018 at the District Court of Den Haag.70 In this case, the court acknowledges that the IND did not incorrectly conclude that the problems with Hamas, described by the applicant, lacked credibility. The court affirms that this conclusion signifies the failure of the applicant to prove that his departure out of Gaza was involuntarily, and, as a consequence Article 1D becomes applicable.71 The court proceeds by stating that the applicant moreover failed to demonstrate the impossibility of invoking protection from UNRWA.
68 District Court of Arnhem, 11 July 2018, NL18.9544, paras 10-11. 69 District Court of Arnhem, 11 July 2018, NL18.9544, para 11.
70 District Court of Den Haag, 12 September 2018, ECLI:NL:RBDHA:2018:10949.
An overview of relevant decisions by Dutch courts published to the public is attached in Annex II. In § 6.3 of the next chapter, I will elaborate on the development that were apparent, in my opinion, with regard to how the Dutch courts assess and apply Article 1D.
CHAPTER VI OBSERVATIONS
Before drawing my conclusions, and after a thorough analysis of the interpretation and application of Article 1D as it is used today in the Member States of the European Union and in the Netherlands, I elaborate here on my observations prior to the closing paragraph.
§ 6.1 OBSERVATIONS ARTICLE 1D OF THE REFUGEE CONVENTION
For Palestinian refugees, as discussed in chapter II, it has already been decided by the international community over half a century ago that, as long as no durable solution to their situation has been established, this particular group of refugees should enjoy an international status. The contention thereupon is the ambiguity that a Palestinian refugee for whom UNRWA provided protection or assistance in its area of operation, is in practice not always automatically entitled to the benefits of the Convention, although they are internationally recognized refugees.
I first of all observe that the contention above has been acknowledged to a further extent in legal literature as well as by the CJEU and in soft law via the UNHCR. What I furthermore notice, is the extended development of additional criteria with respect to the interpretation of “for any reason”. The clarified procedure and development of criteria facilitate preparation of asylum claims for applicants and legal practitioners, and simultaneously shed a light on the appropriate assessment of asylum claims to adopt for national authorities and the courts. It sets an example to follow by individual states and contributes to harmonization of law concerning Palestinian refugees.
In the second place, I observe the unavoidable difficulty that remains in assessing whether UNRWA provides protection or not and whether it is sufficient. As discussed in § 2.2, UNRWA is considered today to provide, in addition to assistance, to a certain extent forms of protection. However, the protection available depends considerably on the circumstances in the host state. States hold the primary responsibility to protect and UNRWA has not the attributes nor mandate to interfere in situations such as domestic violence or protection against gender-based violence.72 UNRWA remains a non-state actor and lacks the instruments to provide protection and enforce the rule of law as a State would, a discrepancy often referred to as a “protection gap” in the academic world.73 I believe it is noteworthy to bear in mind that protection is related to the motives used by an applicant in his or her asylum claim. A case-by-case assessment therefore continues to be necessary for determination of whether a Palestinian refugee can invoke and receive protection.
Lastly, I notice that the accepted interpretation of for any reason has developed into reason beyond his or her control. From a perspective of avoiding abuse of the “benefits” of being an internationally recognized refugee in terms of automatic entitlement to the provisions of the Refugee Convention, I would like to recall the almost absurdity of the situation for Palestinian refugees up until today, and that, in addition, it is essentially impossible to speak of “voluntary” departure for this group of people. Hence, I argue that after 70 years of living in an unresolved political void, leaving that void should no longer be considered “voluntary” in the first place and I argue furthermore that UNRWA’s protection or assistance cannot replace international protection as granted by the Refugee Convention.
§ 6.2 OBSERVATIONS EUROPEAN MIGRATION LAW TOWARDS ARTICLE 1D
The CJEU seems to acknowledge to a broad extent the last guidelines issued by the UNHCR with regard to Article 1D in the Alheto case by demonstrating the order of assessing the legal framework of the exclusion clause. That is to, in the first place, examine whether the applicant falls within the scope of the Article and, in the second place, examine whether protection or
72 Skype interview with Lex Takkenberg on the 8th of November 2018.
73 UNRWA ‘Report by consultant Nicolas Morris: ‘What Protection means for UNRWA in Concept and Practice’
(31 March 2008) available on https://www.unrwa.org/userfiles/20100118155412.pdf; Lex Takkenberg, ‘UNRWA and the Palestinian Refugees After Sixty Years: Some Reflections’ [2009] 28 RSQ 253-259.
assistance from UNRWA has ceased. The affirmation and further interpretation of the CJEU in respect to ex nunc examination for national courts has had a considerable influence on national jurisprudence in Member States.74 Advocate General Mengozzi recalls the objective reasons as set out by the UNHCR. The CJEU emphasizes the fact that a Palestinian refugee is an internationally recognized refugee and is not required once more to prove a fear of persecution; the Palestinian refugee will directly be examined on the basis of the exclusion clause following Article 12(1) QD. In comparison to the El Kott case from 2012, a significant improvement occurred with regard to the approach by the CJEU in the sense that the criteria for cessation were at the time of the El Kott case less developed, and that the arguments put forward by Advocate General Sharpston were focused on comparison to the Bolbol case. The definition of “for any reason” has since El Kott seen a substantial elaboration, developed through the years of increased migration, resulting in further developed jurisprudence, literature and renewed guidelines from the UNHCR on the subject. And finally, in Alheto, the CJEU and Advocate General Mengozzi gradually and extensively set out the procedure of assessment in relation to applications from Palestinian refugees.
§ 6.3 OBSERVATIONS DUTCH LAW TOWARDS ARTICLE 1D
My first observation is, to begin with, the absence of the implementation of Article 1D Refugee Convention and Article 12(1)(a) QD in the Alien Act (Vreemdelingenwet) or subordinate legislation. Directives are to be implemented in national law, and, although the Vreemdelingencirculaire (or: Dutch Immigration Policy) falls under Dutch migration law, it remains omitted from formal legislation. Instruments of implementation require more authority than policy guidelines can offer. An exclusion clause that is part of the international and European legal regime with regard to the determination of an applicants’ status in international law deserves to be included in the Dutch Alien Act.
My second observation with regard to the assessment is the emphasis placed on the aspect of voluntary departure. It seems as if the Dutch Immigration Policy accords significant importance
74 For an elaborate interpretation given by the CJEU with regard to ex nunc examinations, Article 46(3) of the
Procedure Directive 2013/32 and the effect on national jurisprudence, see responses in (national) literature e.g. for the Netherlands: Karin Geertsema, ‘Alheto en de betekenis van volledig ex nunc rechterlijk onderzoek’ [2018] 9 A&MR. This aspect however falls outside the scope of this thesis and will therefore not be discussed into details.
