Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

El Kott and Others

Case Number: C-364/11

Relevance of Decision

The Court of Justice referred in its reasoning to the Charter (Art 20).

Facts of the case

Three men had to leave United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) refugee camps in Lebanon based on threats to their security. In Hungary, their asylum applications were rejected. Mr. El Kott and Mr. Radi were ordered not to be returned to Lebanon whilst Mr. Ismail was granted subsidiary protection. The applicants sought recognition as refugees based on Art. 1D (2) Refugee Convention to which the second sentence of Art 12(1)(a) Qualification Directive refers.

Legal Questions

The Budapest Municipal Court stayed the proceedings and asked the CJEU the meaning of benefits of the Qualification Directive (recognition as a refugee; either of the two forms of protection covered by the Directive; or neither automatically but merely inclusion within the scope ratione personae of the Directive). The Court further asked the meaning of cessation of UNRWA’s protection or assistance (residence outside its area of operations; cessation of UNRWA and cessation of the possibility of receiving UNRWA’s protection or assistance; or an involuntary obstacle caused by legitimate or objective reasons such that the person entitled thereto is unable to avail himself of that protection or assistance).

Questions:

"For the purpose of Article 12(1)(a) of [Directive 2004/83]:

(1) Do the benefits of the Directive mean recognition as a refugee, or either of the two forms of protection covered by the Directive (recognition as a refugee and the grant of subsidiary protection), according to the choice made by the Member State, or, possibly, neither automatically but merely inclusion within the scope ratione personae of the Directive?

(2) Does cessation of the agency’s protection or assistance mean residence outside the agency’s area of operations, cessation of the agency and cessation of the possibility of receiving the agency’s protection or assistance or, possibly, an involuntary obstacle caused by legitimate or objective reasons such that the person entitled thereto is unable to avail himself of that protection or assistance?"


Court Findings

The CJEU answered that Article 12(1)(a) Qualification Directive had to be interpreted as meaning that the cessation of protection/assistance from UN organs/agencies other than UNHCR ‘for any reason’ would include the situation in which a person who, after actually availing him/-herself of such protection/assistance, ceases to receive it for a reason beyond his or her control and independent of his or her volition.

The second sentence of Article 12(1)(a) Qualification Directive had to be interpreted as meaning that, if national authorities have established that the condition relating to the cessation of the protection/assistance provided by UNRWA is satisfied, the fact that the person is ipso facto ‘entitled to the benefits of [the] directive’ means that that Member State must recognise him as a refugee within the meaning of Article 2(c) of the Qualification Directive and that person must automatically be granted refugee status (if he or she is not caught by Article 12(1)(b) or (2) and (3) of the directive). In its reasoning the CJEU referred also to the Charter: It held that “the interpretation of the words ‘shall ipso facto be entitled to the benefits of [the] Directive’ […] does not, contrary to what is maintained by a number of governments […], lead to discrimination, prohibited by the principle of equal treatment enshrined in Article 20 of the Charter”.

 

Operative part:

"1. The second sentence of Article 12(1)(a) of Council Directive 2004/83/EC […] must be interpreted as meaning that the cessation of protection or assistance from organs or agencies of the United Nations other than the [UNHCR] ‘for any reason’ includes the situation in which a person who, after actually availing himself of such protection or assistance, ceases to receive it for a reason beyond his control and independent of his volition. It is for the competent national authorities of the Member State […] to ascertain, by carrying out an assessment of the application on an individual basis, whether that person was forced to leave the area of operations of such an organ or agency, which will be the case where that person’s personal safety was at serious risk and it was impossible for that organ or agency to guarantee that his living conditions in that area would be commensurate with the mission entrusted to that organ or agency.

2. The second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as meaning that, where the competent authorities of the Member State […] have established that the condition relating to the cessation of the protection or assistance provided by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is satisfied as regards the applicant, the fact that that person is ipso facto ‘entitled to the benefits of [the] directive’ means that that Member State must recognise him as a refugee within the meaning of Article 2(c) of the directive and that person must automatically be granted refugee status, provided always that he is not caught by Article 12(1)(b) or (2) and (3) of the directive."

 

Reasoning:

"12 As is apparent from recital 10 in the preamble to Directive 2004/83, read in the light of Article 6(1) TEU, the 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.

43 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. As is apparent from recital 10 in the preamble thereto, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter (Joined Cases C‑71/11 and C‑99/11 Y and Z [2012] ECR, paragraph 48 and the case‑law cited).

78 Lastly, the interpretation of the words ‘shall ipso facto be entitled to the benefits of [the] Directive’ set out at paragraphs 70 to 76 above does not, contrary to what is maintained by a number of governments which have submitted observations to the Court in these proceedings, lead to discrimination, prohibited by the principle of equal treatment enshrined in Article 20 of the Charter."

Critical Assessment

European Court of Justice delivers mileston judgment on asylum claims by Palestinians, The Hungarian Helsinki Committee, available at: https://www.helsinki.hu/en/important-european-judgment-concerning-fleeing-palestinians/#

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