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Opinion of Advocate General Hogan delivered on 6 October 2021

Opinion of Advocate General Hogan delivered on 6 October 2021

Data

Court
Court of Justice
Case date
6 oktober 2021

Opinion of advocate general hogan

delivered on 6 October 2021(*)

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)"

Introduction

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

Legal framework

International law

The Convention relating to the Status of Refugees

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’). 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.’

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

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. 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.

EU law – Directive 2004/83

Recital 3 to Directive 2004/83 states that the Geneva Convention provides the cornerstone of the international legal regime for the protection of refugees. 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. Recitals 16 and 17 of Directive 2004/83 are worded as follows:

  • 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.

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

    • 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’. 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:

    …

    1. 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.

    …’

    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:

    1. 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.’

    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.’

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 Directive 2004/83 continued, however, to apply to the United Kingdom despite the fact that it was repealed and replaced by Directive 2011/95.

    National law

    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(*) and the Immigration Rules (‘the 2006 Regulations’).(*) 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 falls within the scope of Article 1D, 1E or 1F of the Geneva Convention.’ Paragraph 339AA of the Immigration Rules is headed ‘Exclusion from the Refugee Convention’. It provides that:

    ‘This paragraph applies where the Secretary of State is satisfied that the person should have been or is excluded from being a refugee in accordance with regulation 7 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006.

    …’

    The main proceedings and the questions referred for a preliminary ruling

    NB, her husband and four of her children (including her son AB) arrived in the United Kingdom on 11 October 2015. Their fifth child, H, was subsequently born in the United Kingdom. All save H are UNRWA-registered Palestinian refugees. They were living in the Al Bass refugee camp in Sour in southern Lebanon until they left Lebanon in 2015. As I have already indicated, AB is a disabled child with severe and complex needs. He suffers from hydrocephalus; cerebral palsy affecting his trunk, legs and left arm, which means that he is not able to walk; scoliosis; severe learning difficulties; optic atrophy and nystagmus in both eyes (he is registered sight impaired); intermittent seizures (which are treated with emergency medication); and double incontinence. NB and AB made an asylum claim in 2019 in the United Kingdom. That claim was rejected by the Secretary of State by decision dated 3 September 2019. NB and AB appealed against that decision before the referring court. According to the referring court, it is common ground that the outcome of their appeal turns principally on the situation of AB and whether ‘it can be shown that the reason why protection or assistance from UNRWA ceased was for reasons unconnected with his will’. If that is the case, then NB and AB stand to benefit from the inclusionary (‘ipso facto’) provisions of the second subparagraph of Article ID of the Geneva Convention and the second sentence of Article 12(l)(a) of Directive 2004/83. It should be borne in mind that, in the context of a reference for a preliminary ruling, it is for the national court to establish the facts. The referring court has indicated, however, that it has not made a definitive finding in respect of many of the crucial facts in the case before it concerning the treatment of NB and AB in Lebanon. It considered instead that it was more convenient that the case should first be adjourned for the purposes of making a request for a preliminary ruling to the Court. It would appear from the request for a preliminary ruling that NB and AB claim that they come within the scope of that inclusionary clause in the second sentence of Article 12(l)(a) of Directive 2004/83 on the basis that their departure from the Al Bass camp in Lebanon was justified by objective reasons beyond their control and independent of their volition inasmuch as ‘UNRWA is not able to fulfil the conditions of its mandate in respect of severely disabled children’ and because AB faced (and still faces) ‘severe discrimination’ on the grounds of his disability.(*) The Secretary of State contends that NB and AB cannot succeed on this basis because AB received sufficient assistance with his disability when he lived in Lebanon and would also do so if he were returned to that State.(*) In addition, NB and AB claim that in its judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826 ), the Court left open the question of whether severe discrimination could constitute a reason for being forced to leave the UNRWA territory. In that regard, they submit that in southern Lebanon, the Lebanese authorities discriminate against stateless Palestinians in various areas of life, including education, employment, social services and the treatment of the disabled. The Secretary of State’s position is broadly similar although she does not accept that there is severe discrimination. Despite the fact that the referring court did not proceed to make findings either in respect of the general circumstances of UNRWA-registered stateless Palestinians in southern Lebanon or, for that matter, the particular circumstances of NB and AB, it nonetheless noted that ‘following the resignation of Prime Minister Hariri in October 2019 there continue to be mass protests in Tyre, Saida and Beirut and the situation is unstable. The Lebanese government made severe funding cuts to the budget for social affairs in 2019, adversely affecting services for disabled people. In July 2019 the Lebanese government introduced employment restrictions negatively impacting on all non-Lebanese nationals including UNRWA registered Palestinian refugees’. Moreover, the referring court considered that, as matters stand presently, NB and AB have not established that the family was unable for good reasons to access sufficient education and assistance from –NGOs such as the Early Intervention Centre. The referring court considers that there is a lack of clarity as to whether the test in the second sentence of Article 12(1)(a) of Directive 2004/83 is a purely historic (or ex tunc) test, involving an assessment of the circumstances which forced the person concerned to leave the UNRWA area of operations when he or she did or whether it is a test that additionally or alternatively involves an ex nunc assessment. In that regard, the referring court notes that the wording of the second sentence of Article 12(l)(a) of Directive 2004/83 and the second subparagraph of Article ID of the Geneva Convention, is in the past tense which suggests a purely historic test. Moreover, there are a number of passages in the judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826 ) which use a back-ward looking assessment.(*) According, however, to the referring court, it is also possible to construe the second sentence of Article 12(l)(a) of Directive 2004/83 as interpreted by the Court in the judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826 ) as applying an ex nunc test. Moreover, ‘in terms of object and purpose, it is possible to argue that not to apply an ex nunc test would create a protection gap since it would mean that persons who had left the area of operations voluntarily but would presently face denial of protection or assistance would face exclusion’. The referring court also considers that it is necessary to seek guidance from the Court on the relevance of the state-based territorial framework in which UNRWA conducts its operations. According to that court, if the quality of UNRWA’s protection or assistance is in question, that may require consideration not just of UNRWA’s operations in isolation but also how it is able to operate within the wider framework of the state concerned (in this case, that being Lebanon). In addition, the referring court is unclear when assessing whether protection and assistance on the part of UNRWA has ceased, and thus whether that protection and assistance is effective or not, account may be taken of the protective functions performed by civil society actors. Thus, if the protective functions of such civil society actors are relevant to whether UNRWA as an actor of protection is effective, it is possible that the referring court may decide that NB and AB cannot succeed in showing that there has been or would be a cessation of protection and assistance for objective reasons. On the other hand, if the role of such actors was irrelevant to the effectiveness of UNRWA protection and assistance, the referring court may well conclude that such protection and assistance, in NB and AB’s case, is ineffective (especially in the light of the fact that the Secretary of State’s submissions have centred on the existence of NGO sources of assistance in the Al Bass camp). In those circumstances, the First-tier Tribunal (Immigration and Asylum Chamber) (United Kingdom) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    ‘In assessing whether there has been a cessation of protection or assistance from UNRWA within the meaning of the second sentence of Article 12(1)(a) of [Directive 2004/83] to a UNRWA-registered stateless Palestinian in respect of the assistance afforded to disabled persons:

    1. Is the assessment purely an historic exercise of considering the circumstances which are said to have forced an applicant to leave the UNRWA area of operations when he [or she] did, or is it also an ex nunc, forward-looking assessment of whether the applicant can avail himself [or herself] of such protection or assistance presently?

    2. If the answer to Question 1 is that assessment includes a forward-looking assessment, is it legitimate to rely analogically on the cessation clause in Article 11, so that where historically the applicant can show a qualifying reason as to why he or she left the UNRWA area, the evidential burden falls upon the Member State to show that such reason no longer holds?

    3. In order for there to be justifiable objective reasons for the departure of such a person related to UNRWA’s provision of protection or assistance, is it necessary to establish intentional infliction of harm or deprivation of assistance (by act or omission) on the part of UNRWA or the state in which it operates?

    4. Is it relevant to take into account the assistance provided to such persons by civil society actors such as NGOs?’

    The procedure before the Court

    The United Kingdom left the European Union at midnight (CET) on 31 January 2020. In accordance with Article 86(2) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’), the Court remains competent to rule on requests for a preliminary ruling lodged by courts and tribunals of the United Kingdom before the transition period as defined in Article 126 of that agreement ended on 31 December 2020. Moreover, pursuant to Article 89 of the Withdrawal Agreement, any judgment of the Court which will be handed down at a future date will have binding force in its entirety on and in the United Kingdom. The present request for a preliminary ruling was lodged at the Registry of the Court on 29 July 2020. The Court thus remains competent to rule on the present request for a preliminary ruling and the First-tier Tribunal (Immigration and Asylum Chamber) is bound by the judgment to be handed down by the Court in the present proceedings. Written observations on the questions referred by the First-tier Tribunal (Immigration and Asylum Chamber) were lodged by NB and AB, the United Nations High Commissioner for Refugees (UK), who was an intervenor in the action before the referring court, the German Government and the European Commission. On 25 May 2021, the Court addressed a question to the parties and other interested persons for the purposes of Article 23 of the Statute of the Court of Justice of the European Union in which they were invited to set out their views on the effect, if any, of the judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3 ) for the purposes of the answer, in particular, to the first question referred for a preliminary ruling. Replies to this question were submitted by NB and AB, the Secretary of State, the United Nations High Commissioner for Refugees (UK) and the Commission. On 25 May 2021, the Court also addressed a question to the United Nations High Commissioner for Refugees (UK) concerning the legal obligations of UNRWA with regard to providing assistance to disabled children and measures actually put in place, particularly in Lebanon.(*) The United Nations High Commissioner for Refugees (UK) and NB and AB replied to this question.

    Analysis

    Preliminary remarks

    It must be noted that while the request for a preliminary ruling also refers to claims made by NB and AB under Article 1A(2) of the Geneva Convention(*) and Articles 3 and 8 of the European Convention on Human Rights (ECHR),(*) the referring court clearly states that it seeks an interpretation only of Article 11 and Article 12(1)(a) of Directive 2004/83. In that regard, and as the Commission rightly points out, no question of interpretation of Articles 4 and 7 of the Charter or of the non-refoulement principle has been submitted by the referring court. As the Commission has moreover observed, the referring court has not sought the Court’s guidance on the severity of the difficulties faced by a disabled child like AB such as would enable the referring court to find that such a child is ipso facto entitled to refugee status under the second sentence of Article 12(1)(a) of Directive 2004/83 due to the cessation of protection or assistance from UNRWA. In its answer to a question put by the Court on the legal obligations of UNRWA with regard to providing assistance to disabled children, the United Nations High Commission for Refugees (UK) included as an annex a letter from UNRWA(*) in which the latter indicated, inter alia, its legal obligations with regard to providing assistance to disabled Palestinian refugee children and the measures actually put in place for disabled children in Lebanon. In that letter UNRWA stated that ‘it has an obligation to act in good faith to consider, as part of its planning process, how to make progress in addressing the needs, rights, and protection of persons with disabilities, including children. It is not, however, obliged to fulfil any element of its mandate to any particular level or standard. As set out above, the extent to which UNRWA is able to provide those services is largely determined by the amount of funding that it receives’.(*) While no question has been addressed to the Court on the specific standard of care to be provided to disabled children such as AB and even though no question in respect of Articles 4 and 7 of the Charter has been specifically addressed by the referring court, this does not mean that Article 12(1)(a) of Directive 2004/83 must not be interpreted in the light of those provisions and, more importantly, Article 1 of the Charter, which provides that human dignity is inviolable. It is apparent from recitals 16 and 17 of Directive 2004/83 that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of that directive for determining who qualifies for refugee status and the content thereof were adopted in order to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria. Directive 2004/83 must, for that reason, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU, even if that convention is not, as such, part of EU law. As is apparent from recital 10 thereto, Directive 2004/83 must also be interpreted in a manner consistent with the rights recognised by the Charter.(*) In addition, Article 12(1)(a) of Directive 2004/83 corresponds, in substance, to Article 12(1)(a) of Directive 2011/95, with the result that the case-law concerning the latter provision is relevant to the interpretation of the former.(*)

    First Question

    By its first question, the referring court seeks to ascertain which point(s) in time is (are) of temporal relevance in assessing whether applicants such as NB and AB are ‘ipso facto’ entitled to refugee status pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 due to the cessation of protection or assistance from UNRWA. It therefore asks whether only past or historic circumstances may be considered, namely, the circumstances which prevailed at the time when applicants such as NB and AB actually left the UNRWA area of operations in 2015, or whether the circumstances currently prevailing in Lebanon must additionally or alternatively be taken into account.(*) In that regard, the referring court asks whether an ex nunc assessment should (also) be performed.(*) The referring court has not indicated whether its question is directed at the standard of assessment applicable before the competent national authorities(*) and/or the standard of review before a court or tribunal such as the referring court itself. I consider that as neither Article 12(1)(a) of Directive 2004/83 nor, indeed, Article 1D of the Geneva Convention makes any distinction on the matter, the standard which I will now indicate is applicable in both instances.(*) It must also be noted that the question appears to be raised in the light of the alleged deteriorating circumstances faced by UNRWA-registered stateless Palestinians in southern Lebanon in general and those faced by disabled applicants in particular. In that regard, there is no suggestion in the file before the Court that such circumstances may have improved since NB and AB left Lebanon. If, moreover, the circumstances in Lebanon have deteriorated in the meantime, these would appear to be circumstances independent of the control or volition of NB and AB.(*) I propose therefore to answer the present question with that context in mind. The first sentence of Article 12(1)(a) of Directive 2004/83 provides that a third-country national or a stateless person is excluded from being a refugee if ‘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 [HCR].’ Article 1D of the Geneva Convention, to which the first sentence of Article 12(1)(a) of Directive 2004/83 refers, excludes from the scope of that convention those persons who are ‘at present receiving’ protection or assistance from an organ or agency of the United Nations other than the UNHCR.(*) Article 1D further states that when such protection or assistance ‘has ceased for any reason’,(*) these persons shall ipso facto be entitled to the benefits of that convention.(*) This essentially corresponds to the second sentence of Article 12(1)(a) of Directive 2004/83. The phrase ‘at present receiving’ represents the present continuous tense which, according to standard English usage, refers to actions which are either happening right now (as in ‘he is at present receiving a visitor from abroad’) or around now, both in the past, present or immediate future (as in ‘she is at present receiving many letters of congratulations’). It is clear, therefore, that the use of the present continuous tense captures both immediate past as well as present events. Yet quite independently of any fine linguistic or grammatical exegesis, it is also clear, in this particular context, that the use of the present continuous tense was designed to capture both immediate past and present events, thus underscoring the dual legitimacy of both the ex tunc and ex nunc approaches.(*) What is, in any event, decisive, is whether the relevant protection or assistance has actually ceased for any reason.(*) While Article 1D of the Geneva Convention – and, indeed, Article 12(1)(a) of Directive 2004/83 – does not specifically indicate what point in time is relevant for the assessment of cessation by the competent national authorities or courts, the use of the phrase ‘are at present receiving’(*) in the first subparagraph of that provision and ‘has ceased’ in the second subparagraph(*) all favour a dynamic assessment which looks at the situation in the UNRWA area of operations at the time of an applicant’s departure(*) and additionally requires an ex nunc assessment. This approach is borne out by the case-law of the Court. In that regard, it is clear from the judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826, paragraphs 61, 63, 64 and 65 ), that the Court considered that for the purpose of determining whether assistance or protection has actually ceased within the meaning of Article 12(1)(a) of Directive 2004/83, it is for the competent national authorities and courts to ascertain whether the departure of the person concerned may be justified by reasons beyond their control and independent of their volition which forced them to leave the area of operation of the UNRWA in question and thus prevent them from receiving UNRWA protection or assistance.(*) The Court thus considered that the situation prevailing in the relevant territory at the time when the person in question left was relevant.(*) The question remains, however, whether all the facts necessary in order to make an up-to-date assessment of the case at hand – in particular, any new evidence or factors which may have arisen since applicants such as NB and AB left a UNRWA area of operations – may/must also be taken into account by the competent national authorities or ultimately by a court or tribunal on appeal. It is clear from the recent judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3, paragraphs 51 to 67 ), that the question of cessation of protection or assistance by UNRWA pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 must be based on an assessment, on an individual basis, of all the relevant evidence or factors of the situation in question at the time of the applicants’ departure from UNRWA’s area of operations and at the time the court or tribunal rules on the appeal brought against a decision refusing to grant refugee status. Thus in paragraph 59 of that judgment the Court specifically refers to the time of departure from UNRWA’s area of operation and in paragraph 56 of that judgment the Court specified that the competent administrative or judicial authorities are required to verify whether a stateless person of Palestinian origin is able to receive protection or assistance from UNRWA.(*) While the case giving rise to the judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3 ) concerned the geographic scope of the field of UNRWA’s area of operations rather than the time when cessation of protection or assistance by UNRWA must be assessed, I see no valid reason to depart from the approach adopted in that judgment in the present case. Indeed, to find otherwise might lead to the adoption of decisions and rulings which do not correspond to the prevailing reality confronted by applicants. As the United Nations High Commissioner for Refugees (UK) observed, such an approach would be artificial. It is therefore for the competent national authorities and courts or tribunals to conduct, on an individual basis, an assessment of all the relevant factors in order to ascertain not only whether the departure from the UNRWA area of operations of applicants for refugee status pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 may be justified by reasons beyond their control and independent of their volition (and thus prevented them from receiving UNRWA protection or assistance), but also whether they are currently prevented from receiving such protection or assistance due to the alleged deteriorating situation in the area of operation in question for reasons beyond their control and independent of their volition. In the light of the foregoing, I consider that an assessment, on an individual basis, of all the relevant factors of the situation in question must be conducted in order to ascertain whether there has been a cessation of protection or assistance from UNRWA within the meaning of the second sentence of Article 12(1)(a) of Directive 2004/83. This requires an assessment of the circumstances which allegedly forced an applicant to leave the UNRWA area of operations when he or she did so and also an ex nunc, forward-looking assessment of whether the applicant can avail himself or herself of such protection or assistance at the present time.

    Second Question

    By its second question – which is only relevant in the event that the Court considers that the question whether there has been a cessation of protection or assistance from UNRWA within the meaning of the second sentence of Article 12(1)(a) of Directive 2004/83 requires an assessment of the circumstances which allegedly forced an applicant to leave the UNRWA area of operations when he or she did so and also an ex nunc, forward-looking assessment of whether the applicant can avail himself or herself of such protection or assistance at the present time – the referring court seeks to ascertain whether the evidential burden lies with the Member State to demonstrate that the reason why the applicant left the UNRWA area no longer prevails. In that regard, the referring court queries whether it is legitimate to rely by analogy on the cessation clause in Article 11 of Directive 2004/83, so that where historically the applicant can show a qualifying reason as to why he or she left the UNRWA area, the evidential burden then falls upon the Member State to show that such reason no longer holds.(*) In its judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826, paragraphs 76 and 77 ), the Court stated that a person who is ipso facto entitled to the benefits of Directive 2004/83 must submit an application for refugee status which must be examined by the competent authorities of the Member State responsible. In carrying out that examination, those authorities must verify not only that the applicant actually sought assistance from UNRWA, and that the assistance has ceased, but also that the applicant is not caught by any of the grounds for exclusion laid down in Article 12(1)(b) or (2) and (3) of the directive. In addition, the Court stated that Article 11(f) of Directive 2004/83, read in conjunction with Article 14(1) thereof, must be interpreted as meaning that the person concerned ceases to be a refugee if he or she is able to return to the UNRWA area of operations in which he or she was formerly habitually resident because the circumstances which led to that person qualifying as a refugee no longer exist. It is, in any event, clear from paragraph 71 of that judgment that the Court considered that the voluntary renunciation of UNRWA assistance could not trigger the application of Article 12(1)(a) of Directive 2004/83 (and, by extension, the first paragraph of Article 1D of the Geneva Convention) such as would enable such a person ipso facto to claim refugee status. This was because Article 1D of that convention was intended to exclude persons who were in a position to avail themselves of UNRWA assistance from the benefits of the Geneva Convention. The converse proposition – which is, at least, implicit in that judgment – is that persons who are no longer for ‘any reason’ able to avail themselves of UNRWA assistance (i.e., in circumstances other than voluntary renunciation) are entitled to be treated ipso facto as refugees for the purposes of these provisions. It follows from the judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3, paragraph 42 ), that Article 14 of Directive 2004/83 (and by implication Article 11 thereof) on the cessation of refugee status, specifically presuppose that that status has already been granted. Given that the applicants NB and AB have not yet been granted refugee status under national law transposing Directive 2004/83 and the possibility of granting that status is currently being assessed, neither Article 11 nor Article 14 of Directive 2004/83 are relevant. As regards the nature of the assessment of NB’s and AB’s application for refugee status, Article 13 of Directive 2004/83, which is entitled ‘Granting of refugee status’, provides that ‘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’. In order, therefore, to be entitled to refugee status in accordance with the second sentence of Article 12(1)(a) of Directive 2004/83 – which is contained in Chapter III of that directive – an assessment of facts and circumstances must be carried out in accordance with Article 4 of that directive (which is contained in Chapter II). Pursuant to Article 4(1) of Directive 2004/83, Member States may consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection. In cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.(*) It is settled case-law under Article 4(1) of Directive 2004/83 that although it is generally for the applicant to submit all elements needed to substantiate the application, the fact remains that it is the duty of the Member State to cooperate with the applicant at the stage of determining the relevant elements of that application.(*) This requirement that the Member State cooperate therefore means, in practical terms, that if, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, it is necessary for the Member State concerned to cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled. A Member State may also be better placed than an applicant to gain access to certain types of documents.(*) In effect, applicants such as NB and AB can only be required under Article 4(1) of Directive 2004/83 to produce evidence which is reasonably available to them. There may therefore be information, data, documentation, etc., relating in particular to the circumstances prevailing since their departure from a UNRWA area of protection which they cannot reasonably access or produce. In such instances, it is the duty of the Member State in question actively to cooperate with the applicants in obtaining and assessing such up-to-date information, data, documentation, etc., on the situation there. I therefore consider that an assessment of whether an applicant is entitled to refugee status pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 must be carried out in accordance with Article 4 of that directive and the case-law thereon. While it is generally for the applicant to submit all elements needed to substantiate the application, it is the duty of the Member State to cooperate with the applicant at the stage of determining the relevant elements of that application. If, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, the Member State concerned must cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled.

    Third question

    By its third question, the referring court seeks to ascertain in essence whether in order to determine whether applicants seeking refugee status pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 are forced to leave a UNRWA area of protection, it is necessary to establish intentional infliction of harm or deprivation of assistance (by act or omission) on the part of UNRWA or the State in which it operates, in this case, Lebanon. In that regard, the referring court cites the judgments of 18 December 2014, M’Bodj (C‑542/13, EU:C:2014:2452 ) and of 24 April 2018, MP (Subsidiary protection of a person previously a victim of torture) (C‑353/16, EU:C:2018:276 ), both of which concern the criteria of eligibility for subsidiary protection and the concept of serious harm pursuant to Article 15(b) of Directive 2004/83 in respect of seriously ill persons. In those cases, the Court held in effect that in accordance with Article 15(b) of Directive 2004/83, a person may rely on the lack of appropriate medical treatment or facilities in their country of origin in order to establish serious harm only where that person is intentionally deprived of health care. General deficiencies or shortcomings will not suffice. I consider as a preliminary matter that the second sentence of Article 12(1)(a) of Directive 2004/83 – which concerns the very specific circumstances in which persons falling within Article 1D of the Geneva Convention may be granted refugee status under that directive - is not related to the circumstances in which subsidiary protection may be granted under Article 15(b) of that directive. Moreover, in my view, the third question should be answered in the negative as an interpretation of the second sentence of Article 12(1)(a) of Directive 2004/83 which would require the intentional infliction of harm or deprivation of assistance on the part of UNRWA or the State in which it operates would be contra legem, as it runs counter to the clear and mandatory wording of that provision and, indeed, that of Article 1D of the Geneva Convention. Both provisions unequivocally provide that when protection or assistance from UNRWA has ceased for any reason, the persons in question shallipso facto be entitled to the benefits of that directive and convention. Moreover, the Court in its judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826, paragraph 65 ), confirmed that the second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as meaning that cessation of protection or assistance from UNRWA ‘for any reason’ includes the situation in which a person who, after actually availing himself or herself of such protection or assistance, ceases to receive it for a reason beyond his or her control and independent of his or her volition. As the Commission rightly observes, there is no requirement that UNRWA or, indeed, the State in which UNRWA operates(*) act intentionally or in a discriminatory manner. All that is required is that the persons have ceased to obtain assistance or protection from UNRWA for reasons beyond their control and independently of their volition.(*) If it were established that UNRWA or the State in which it operates intentionally inflicted harm or deprived persons of assistance or protection (by act or omission), such evidence would naturally be particularly pertinent. It is, however, not necessary to demonstrate an intention of this nature for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83. As the Court stated in its judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3, paragraph 67 ), all relevant factors must be taken into account. I therefore consider that in order to determine whether applicants seeking refugee status pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 are forced to leave a UNRWA area of protection, it is not necessary to establish intentional infliction of harm or deprivation of assistance (by act or omission) on the part of UNRWA or the State in which it operates. It is instead necessary to determine whether, as the Court observed in its judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826, paragraph 65 ), such applicants have ceased to obtain assistance or protection from UNRWA for reasons beyond their control and independently of their volition. Moreover, such assistance or protection must be effective.

    Fourth question

    By its fourth question, the referring court seeks to ascertain whether assistance provided to persons such as the applicants by civil society actors such as NGOs is relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83. In this context the role of the State in which UNRWA operates must also be examined. It is clear from the wording of these provisions that both Article 1D of the Geneva Convention and Article 12(1)(a) of Directive 2004/83 currently envisage only one single actor of protection or assistance, namely, UNRWA.(*) It is settled case-law that Article 12(1)(a) of Directive 2011/95 applies where it becomes clear, based on an assessment, carried out on an individual basis, of all the relevant evidence, that the personal safety of the stateless person of Palestinian origin concerned is at serious risk and that, despite a request by that person, it is impossible for UNRWA to guarantee that the living conditions of that individual would be compatible with its mission, and that the person in question is accordingly forced to leave the UNRWA area of operations owing to circumstances beyond his or her control.(*) The Court has also indicated that effective protection or assistance from UNRWA in an area covered by that agency’s mandate must enable the person in question to reside there in safety, under ‘dignified living conditions’.(*) While Article 1D of the Geneva Convention, Article 12(1)(a) of Directive 2004/83 and the case-law of the Court refer in, essence, only to protection or assistance by UNRWA, I consider that the role of the State in which UNRWA operates cannot be ignored in this context. It is clear that UNRWA does not operate in a vacuum and the State in question has a determining role in enabling UNRWA to fulfil its mandate effectively and ensuring that the persons in question live in dignified conditions.(*) This means that both the positive and negative impact of the actions of that State and the general safety and living conditions of Palestinian refugees, such as the applicants, residing in Lebanon must be taken into account in any global assessment of all the relevant circumstances conducted pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83. Thus, for example, where Palestinian refugees have a real legal entitlement to access, on a durable basis, to education and medical care provided by the State in question, I consider that that situation should be taken into consideration in a global assessment of all relevant circumstances under the second sentence of Article 12(1)(a) of Directive 2004/83. It would naturally be artificial to focus exclusively on protection or assistance provided by UNRWA, as the adequacy of the scope of practical protection or assistance depends on the context in which that agency operates. In that regard, it would, however, appear from the file before the Court (and subject to verification by the referring court) that Palestinian refugees in Lebanon face legal or other de facto restrictions in accessing State services, such as medical treatment and education. If this is indeed found by the referring court to be the case, then in those circumstances it would be unrealistic to suppose that any alleged deficiencies in the scope of such protection or assistance would not have a greater impact on Palestinian refugees than on the rest of the population. Furthermore, I consider that (as I have already indicated) where UNRWA’s mission is hampered or undermined due to the deteriorating political and economic situation in the State in question rather than by direct State action, such circumstances are also highly relevant in respect of any assessment of whether the second sentence of Article 12(1)(a) of Directive 2004/83 is applicable. In addition, the important role of civil society actors such as NGOs(*) in this context cannot be ignored. Thus, for example, where NGOs act under the auspices of UNRWA or are legally subcontracted by UNRWA to provide protection or assistance on its behalf, such action must be taken into consideration in order to assess the efficacy of the protection or assistance provided by UNRWA. In such circumstances, NGOs act, to all intents and purposes, as agents of UNRWA. Moreover, I consider that assistance provided by NGOs which act under the auspices of the State in which UNRWA operates where such assistance is legally subcontracted to NGOs by that State must also be taken into account, provided – and this is a critical proviso – that Palestinian refugees have a legal right to access the protection or assistance provided by the NGOs in question and such protection or assistance is effective and durable. Mere ad hoc or temporary protection or assistance will not suffice. All other assistance provided to persons such as the applicants by NGOs which are either not acting under the auspices of UNRWA/the State in which UNRWA operates or which are not legally subcontracted by UNRWA/the State in which UNRWA operates to provide protection or assistance on their behalf is not relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83, as the accessibility, effectiveness and durability of such assistance cannot be guaranteed or, indeed, validly assessed. Such assistance – while doubtless valuable – is by its very nature unstable and precarious. As such, it cannot determine a person’s legal rights pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83. I therefore consider that protection or assistance provided to Palestinian refugees by civil society actors such as NGOs is relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83 where they act under the auspices of UNRWA or are legally subcontracted by UNRWA to provide protection or assistance on its behalf. Protection or assistance provided to Palestinian refugees by civil society actors where they act under the auspices of the State in which UNRWA operates or are legally subcontracted by that State to provide protection or assistance on its behalf is also relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83, provided that the refugees in question have a legal right to access the protection or assistance provided by those actors, NGOs and such protection or assistance is effective and durable. On the other hand, mere ad hoc or temporary protection or charitable assistance will not suffice. All other assistance provided by civil society actors is not relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83, as the accessibility, effectiveness and durability of such assistance cannot be guaranteed or, indeed, validly assessed.

    Conclusion

    I would accordingly propose that the questions referred by the First-tier Tribunal (Immigration and Asylum Chamber) (United Kingdom) be answered as follows:

    1. An assessment, on an individual basis, of all the relevant factors of the situation in question must be conducted in order to ascertain whether there has been a cessation of protection or assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) within the meaning of the second sentence of 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. This requires an assessment of the circumstances which allegedly forced an applicant to leave the UNRWA area of operations when he or she did so and also an ex nunc, forward-looking assessment of whether the applicant can avail himself or herself of such protection or assistance at the present time.

    2. An assessment of whether an applicant is entitled to refugee status pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 must be carried out in accordance with Article 4 of that directive and the case-law thereon. While it is generally for the applicant to submit all the elements needed to substantiate the application, it is the duty of the Member State to cooperate with the applicant at the stage of determining the relevant elements of that application. If, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, the Member State concerned must cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled.

    3. In order to determine whether applicants seeking refugee status pursuant to the second sentence of Article 12(1)(a) of Directive 2004/83 are forced to leave a UNRWA area of protection, it is not necessary to establish intentional infliction of harm or deprivation of assistance (by act or omission) on the part of UNRWA or the State in which it operates. It is instead necessary to determine whether such applicants have ceased to obtain assistance or protection from UNRWA for reasons beyond their control and independently of their volition. Moreover, such assistance or protection must be effective.

    4. Protection or assistance provided to Palestinian refugees by civil society actors such as non-governmental organisations (NGOs) is relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83 where they act under the auspices of UNRWA or are legally subcontracted by UNRWA to provide protection or assistance on its behalf. Protection or assistance provided to Palestinian refugees by civil society actors where they act under the auspices of the State in which UNRWA operates or are legally subcontracted by that State to provide protection or assistance on its behalf is also relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83 provided that the refugees in question have a legal right to access the protection or assistance provided by those actors, NGOs and such protection or assistance is effective and durable. On the other hand, mere ad hoc or temporary protection or charitable assistance will not suffice. All other assistance provided by civil society actors is not relevant for the purposes of the second sentence of Article 12(1)(a) of Directive 2004/83, as the accessibility, effectiveness and durability of such assistance cannot be guaranteed or indeed validly assessed.