This case concerns a stateless woman from Palestine who is registered as a refugee with the UNRWA and whose application for asylum in Bulgaria was denied on grounds that she had not proven any risk of persecution under Article 1(A) of the 1951 Refugee Convention. The applicant later appealed this decision to the Administrative Court of Sofia.
The Administrative Court, doubting whether the asylum application should have rather fallen within the scope of Article 1D of the 1951 Convention as well as the scope of judicial review under Article 46(3) of the Asylum Procedures Directive, referred, on 18 November 2016, preliminary questions to the Court of Justice on the interpretation of Art 12(1)a) of the Qualification Directive (Directive 2011/95/EU) and the Procedures Directive (Directive 2013/32/EU). In sum, the Sofia Administrative Court asks whether it follows from Article 12(1)a) of the Qualification Directive that it is permitted to examine an application for international protection under Article 1A Refugee Convention (as was done in this case) instead of Article 1D second sentence, where the application is made by a stateless person of Palestinian origin who is registered as a refugee with the UNRWA and who was resident in that agency’s area of operations before making that application. Moreover, it requested whether a person registered with UNRWA who has fled the Gaza Strip and stayed in Jordan before travelling to the EU must be considered to be sufficiently protected in Jordan with the result that the application must be declared as inadmissible. Lastly the Sofia Administrative Court asked whether, after the annulment of a decision rejecting an application for international protection, the court may, or must, itself adopt a decision on the application for international protection.
The Court first provides its preliminary observations on the temporal applicability of the 2013 Asylum Procedures Directive to the case at hand. It notes that whilst the APD came into effect after the date in which the applicant had lodged her application for international protection the EU legislature allowed Member States to use their discretion as to whether the 2013 APD applied to applications lodged before the APD’s entry into force. For the sake of clarity and noting that the Bulgarian legislature had since 2007 legislation on the requirement of a full and ex nunc examination, thus reflecting Article 46(3) APD, the Court notes that it is necessary to interpret Article 46(3) in respect of the questions referred by the Sofia Administrative Court. This ratione temporis argument is also applied by the Court in relation to Articles 33(2)(b) and 35 APD.
In respect of the first question, the Court finds that where a person is registered with UNRWA and then later applies for international protection in a European Union Member State, the provisions set out in the first and second sentences of Articles 12(1)(a) of the Qualification Directive (QD) (which reflects Article 1D of the 1951 Geneva Convention) are lex specialis. Thus, such persons are in principle excluded from refugee status in the European Union unless it becomes evident, on the basis of an individualised assessment of all relevant evidence, that their personal safety is at serious risk and it is impossible for UNRWA to guarantee that the living conditions are compatible with its mission and that due to these circumstances the individual has been forced to leave the UNRWA area of operations. In these circumstances, then, the individual is ipso facto entitled to refugee status in the respective EU Member State unless they have been previously rejected on the basis of another exclusion ground or of inadmissibility. This same procedural order is to be applied regardless of whether the application relates to international or subsidiary protection.
Second, and according to the above, the Court finds Article 12(1)(a) QD to be violated where a national law fails to transpose both the ground for exclusion and the exception to said exclusion ground. The Court thus finds Bulgarian law to have incorrectly transposed Article 12(1)(a) QD. In addition, the Court states that both sentences in Article 12(1)(a) have direct effect since they set out content which is unconditional and sufficiently precise for an individual to rely upon it and for it to be applied by court and this is regardless of whether the applicant in the main proceedings explicitly referred to the second sentence of Article 12(1)(a) or not.
Third, and in respect of the interpretation of Article 46(3) of the APD when read in conjunction with Article 47 of the Charter, the Court notes that a full and ex nunc examination of both facts and points of law requires national legislation to provide for appeals where the court or tribunal takes into account all the facts and points of law necessary to make an up-to-date assessment of the case, including, where applicable, new evidence which has to come to light after the adoption of the decision under appeal. This means that the Court or Tribunal is required to examine evidence which the determining authority took into account or could have take into account following the adoption of a decision but said determining body. Moreover, and in line with Article 47 Charter, the relevant court or tribunal must interview the applicant unless it is in a position to carry out the examination solely on the basis of a case file before it. Where new evidence does come to light, the court or tribunal is to offer the applicant an opportunity to express his or her views when the evidence could affect them negatively. Yet, such full and ex nunc examination may solely relate to the admissibility of the claim where this is applicable. In addition, the Court notes that from the scheme of the APD determining bodies must have specific resources and specialised staff and the applicant must also cooperate with said body.
Fourth, and as said before, the Court notes that the full and ex nunc examination of an appeal may solely concern the admissibility of an international protection application. In that respect, Articles 35 and 38 APD may apply which would, thus, require a court or tribunal to rigorously examine whether the respective conditions of either article have been met, inviting, where applicable, the determining authorities to produce any documentation or factual evidence where relevant. Such rigorous examination means that the applicant has had the opportunity to set out his or her views in person on the applicability of the ground of inadmissibility, which can take the form of a hearing unless the ground of inadmissibility has already been examined by the determining authority and unless the court or tribunal judges otherwise. If a hearing is undertaken the applicant must be accompanied by an interpreter. Moreover, the Court finds that Article 18 and 19 of the Charter do not offer any additional guidance on the meaning of a full and ex nunc examination of both facts and points of law.
Fifth, the Court examines the facts of the case at hand, notably whether sufficiency of protection under Article 35 APD covers a person registered with UNRWA but a beneficiary of protection of the agency in a third country which is not the same as the territory of habitual residence, in Ms Alheto’s case – Jordan. The Court finds persons registered with UNRWA have the the status of Palestine refugees in the Near East and they do not benefit from refugee status linked to Jordan. Thus, the mere fact of their registration and protection or assistance given by UNWRA cannot mean that Article 35(a) APD applies. However, a Palestinian registered with UNWRA residing Jordan, according to the Court, must be regarded as enjoying sufficient protection if he is guaranteed readmission there, he benefits from effective protection of assistance from UNRWA which is recognised or regulated by Jordan and the Member State examining the claim for protection is certain that the applicant would be able to stay in Jordan in safety under dignified living conditions. In such a case of readmission and recognition of the protection provided by UNRWA and adherence to the principle of non-refoulement, the Court notes that Jordan would constitute a State actor of protection, within the meaning of Article 7(1)(a) QD.
Last, the Court notes in respect of the powers of a court or tribunal to rule on an application for international protection itself in an appeal, that the APD did not introduce any rule concerning the deprivation of determining authorities of their competence to make asylum decisions. Thus, Member States may legislate on courts or tribunals referring a file back to the determining authority. However, the Court notes that Article 46(3) would be deprived of practical effect if after an appeal, the determining authority made a decision which countered the assessment of the court or tribunal. Thus, both Articles 46(3) APD and 47 Charter require national legislation to be structured in a way that following a decision by a court or tribunal on appeal and upon remittance of the case to the determining authority, said authority adopts a decision within a short period of time and complies with the assessment of court or tribunal in its annulment of the initial decision.
1. Article 12(1)(a) of Directive 2011/95/EU 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, read in conjunction with Article 10(2) of 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 must be interpreted as meaning that the processing of an application for international protection lodged by a person registered with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) requires an examination of the question whether that person receives effective protection or assistance from that agency, provided that that application has not been previously rejected on the basis of a ground of inadmissibility or on the basis of a ground for exclusion other than that laid down in the first sentence of Article 12(1)(a) of Directive 2011/95.
2. 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 and the second sentence of Article 12(1)(a) of Directive 2011/95 must be interpreted as:
– precluding national legislation which does not lay down or which incorrectly transposes the ground for no longer applying the ground for exclusion from being a refugee contained therein;
– having direct effect; and
– being applicable even if the applicant for international protection has not expressly referred to them.
3. Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a court or tribunal of a Member State seised at first instance of an appeal against a decision relating to an application for international protection must examine both facts and points of law, such as the applicability of Article 12(1)(a) of Directive 2011/95 to the applicant’s circumstances, which the body that took that decision took into account or could have taken into account, and those which arose after the adoption of that decision.
4. Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that the requirement for a full and ex nunc examination of the facts and points of law may also concern the grounds of inadmissibility of the application for international protection referred to in Article 33(2) of that directive, where permitted under national law, and that, in the event that the court or tribunal hearing the appeal plans to examine a ground of inadmissibility which has not been examined by the determining authority, it must conduct a hearing of the applicant in order to allow that individual to express his or her point of view in person concerning the applicability of that ground to his or her particular circumstances.
5. Point (b) of the first paragraph of Directive 2013/32 must be interpreted as meaning that a person registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) must, if he or she is a beneficiary of effective protection or assistance from that agency in a third country that is not the territory in which he or she habitually resides but which forms part of the area of operations of that agency, be considered as enjoying sufficient protection in that third country, within the meaning of that provision, when it:
– agrees to readmit the person concerned after he or she has left its territory in order to apply for international protection in the European Union; and
– recognises that protection or assistance from UNRWA and supports the principle of non-refoulement, thus enabling the person concerned to stay in its territory in safety under dignified living conditions for as long as necessary in view of the risks in the territory of habitual residence.
6. Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights, must be interpreted as meaning that it does not establish common procedural standards in respect of the power to adopt a new decision concerning an application for international protection following the annulment, by the court hearing the appeal, of the initial decision taken on that application. However, the need to ensure that Article 46(3) of that directive has a practical effect and to ensure an effective remedy in accordance with Article 47 of the Charter of Fundamental Rights requires that, in the event that the file is referred back to the quasi-judicial or administrative body referred to in Article 2(f) of that directive, a new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision.
From the European Database of Asylum Law (EDAL), available here