Saleh Saleh v. Ministry of Internal Affairs and Administration
|Publisher||Poland: Refugee Board|
|Author||Polish Refugee Board|
|Publication Date||25 November 1999|
|Cite as||Saleh Saleh v. Ministry of Internal Affairs and Administration, Poland: Refugee Board, 25 November 1999, available at: http://www.refworld.org/cases,POL_PRB,3ae6b6f330.html [accessed 27 March 2017]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
As per article 32 and article 69 of the Foreigners Act of June 25, 1997 (Journal of Laws. 1997. No. 114. Item 739. Amended) and article 138 § 1 point 2 Administrative Proceedings Code (unified Wording, Journal of Laws. 1980. No. 9. Item 26. Amended) the Refugee Board:
Jacek JAGIELSKI - chairman
Jakub SKIBA - member
Adam BERNATOWICZ - member
after having reviewed Mr. Saleh Saleh's (DOB: 5/25/56, no country) appeal on November 25, 1999
to decision no. DMU-II-2071/SU/97 of January 18, 1999 published by the Ministry of Internal Affairs and Administration
regarding the rejections of granting refugee status in the Polish Republic
hereby lifts the contested decision and grants Mr. Saleh Saleh the status of refugee in Poland.
By way of a decision dated January 18, 1999 the Minister of Internal Affairs and Administration refused to grant Saleh Saleh refugee status in Poland. In a broad justification of its ruling, the first-level court analyzed the petitioner's situation in terms of meeting the Convention's requirements regarding refugee status dated July 28, 1951 (Journal of Laws. 1991. No. 119. Item 515) and concluded that the party has failed to meet those requirements. Therefore the Ministry refused to grant the Party status under the Convention.
The Party filed an appeal with the Minister's decision with the Refugee Affairs Council. In the appeal the plaintiff writes that he is a Palestine national refugee protected in the past by the United Nations Relief and Work Agency for Palestine Refugees in the Middle East (UNRWA). Although remaining under the care of the agency would disqualify the party from being granted refugee status based on the Geneva Convention (article 1D), the party believes that the provision of care has ceased (this in turn lifts the requirement).
A person cared for by the UNRWA is entitled to benefits offered under the Geneva Convention. The plaintiff has garnered this thesis from reports written by international law experts and interpretations accepted by the UNHCR. Hence the Party believes that the first court did not take into account those aspects of the party's situation and hereby petitions the authority to dismiss the original decision and grant refugee status.
The Council for Refugee Affairs assessed as follows after having reviewed the appeal:
The use of UNRWA care by the Party is the decisive factor in this matter. According to article 1D of the Geneva Convention the Convention fails to apply to people who currently take advantage of assistance provided by UN bodies or agencies other than the UNHCR. However at any point in time when the assistance ceases these people will automatically receive the benefits of the Convention even though their situation has not been settled once and for all by appropriate resolutions passed by the UN General Assembly.
In excluding the aforementioned persons from the Geneva Convention in connection with care provided by other UN bodies or agencies, the above clause calls for the actual provision of care. However if for any reason that care is in practical terms not available then, according to the accepted rules and the UNHCR, people subject to the care beforehand are automatically entitled to be treated as refugees under the Geneva Convention. In other words, if a given person was cared for under, for example, the UNRWA and that care for any reason whatsoever came to an end, that person has the right to be granted refugee status under the Geneva Convention without a need to receive refugee status based on article 1 A point 2 of said Convention (see G. Köftner and P. Nicolaus. An Introduction to Asylum Rights in Germany. Ch. Kaiser Verlag. Munich. 1986. point 126.96.36.199.3; Granting Refugee Status. Published by UNHCR. Geneva. 1992. Page 38). There are two decisive factors in this case: on the one hand the registration of the person covered by the care of a UN agency or body, such as the UNRWA, and on the other hand the practical end of that care for any reason whatsoever (for example leaving the area protected under the auspices of the UNRWA - see G.S. Godwin-Gill. The Refugee in International Law. Oxford. 1985. Page 57.)
Therefore in this case the answers to the following questions are key: Was the person registered as someone under the care of the UNRWA and whether or not this care came to an end. During the investigation it was learned that the Party was registered with the UNRWA and materials regarding the circumstances of the case indicate that the care has realistically come to an end. The latter argument is supported by the fact that UNRWA's care is restricted in terms of geographic range while the party has been abroad for more than a dozen years. The party was under the protection of the UNRWA because of his parents and left the country at a young age and therefore in reality never took advantage of the protection. The party is uncertain of his fate upon returning to his fatherland.
Therefore by meeting the UNRWA-registration requirement and practically speaking not being subject to the care of the UNRWA, the party is therefore entitled to refugee status under article 1 D section 2 of the Geneva Convention and the assessing doctrine.
The first court in this matter focused on having the party meet the requirements of refugee status listed under article 1 A point 2 of the Convention. However it failed to recognize the fact that formally speaking the party is protected by the UNRWA with the protection failing to exist. The Council believes that this is the determining issue.
Therefore the court decided to revoke the ruling.