On the 4th of May 2023, Avocate General (AG) Emiliou of the CJEU published its Opinion in the case C‑294/22. The case concerns SW, a stateless person of Palestinian origin, who lived until 2019 in Lebanon which is part of UNWRA’s area operations. He unsuccessfully applied for asylum in France. The applicant appealed stating that he had serious form of thalassemia, a genetic disorder. Subsequently, the domestic court (CNDA) granted SW refugee status on the ground that UNRWA is unable to provide him with sufficient access to medical care and appropriate living conditions. The French authorities appealed and the Conseil d’Etat submitted preliminary questions to the CJEU.
The AG Emilou first reiterated that persons falling within the scope of Article 1(D) of the Geneva Convention are excluded from being granted refugee status under Qualification Directive. Hence, the AG highlighted that such persons are not entitled to rely on Article 30 of Qualification Directive providing beneficiaries of international protection access to healthcare under the same eligibility conditions as nationals of the MS, unless and until it is established that UNRWA’s protection has ‘ceased’ within the meaning of Article 12(1)(a) of that Directive, or they are granted subsidiary protection. The AG stated that this cessation may occur for ‘any reason’ which refers to events affecting UNRWA directly but may also be attributable to circumstances which have forced a person to leave UNRWA’s area of operations. Regarding the latter, two criteria need to be individually assessed: a) serious risk to personal safety and b) whether UNRWA can guarantee appropriate living conditions. The AG held that these criteria may be satisfied when the applicant is faced with the impossibility of getting access to the medical treatment which his state of health requires in UNRWA’s area of operations. Consequently, the applicant might not be excluded from being a refugee as mentioned under Article 12 of the Qualification Directive.
Then, the AG stated that in such a situation it is necessary to establish that the person faces a serious risk of severe harm, and that it will be impossible for UNRWA to guarantee that that person’s basic medical and health needs will be met, if he is to remain in that agency’s area of operations. Both requirements are fulfilled where it is established that (i) he is at imminent risk of dying or (ii) there are substantial grounds for believing that he would face a real risk, on account of lack of access to appropriate medical treatment or care, of suffering a serious, rapid and irreversible decline in his state of health resulting in intense pain or a significant reduction in life expectancy.