The Netherlands: Council of State rules on the case of a Palestinian asylum applicant
On the 3 January 2022, the Dutch Council of State released its decision in the case of a stateless asylum applicant of Palestinian origin. The asylum applicant concerned was born in Iraq and moved to Egypt in 2006 before leaving and applying for asylum in the Netherlands in 2014. His application was rejected by the Secretary of State, firstly on the basis that Article 1(D) of the Refugee Convention applied to him and finally on the basis that this provision did not apply to him, but that nevertheless he could be expected to return to Egypt without a risk of serious harm or persecution. This decision was quashed by the District Court who held that the Secretary of State had failed to provide adequate grounds that the applicant did not fall within the scope of Article 1(D) of the Refugee Convention and had not substantiated the reversal of their initial decision.
On appeal, the Council of State noted that the first sentence of Article 12(1)(a) of the Qualification Directive (QD) contains a ground for exclusion for stateless Palestinians who receive protection and assistance from UNRWA, whereas the second sentence provides a ground for inclusion if the applicant has requested UNRWA's assistance and UNRWA is not in a position to provide support in that area. The Council of State furthermore elaborated that this determination is not so much on whether the applicant was registered with UNRWA but whether they actually received assistance from UNRWA after registration. The Council referred to AG Mengozzi's Opinion in the Alheto case which interpreted the UNHCR Guidelines on International Protection No. 13 that Palestinians who are eligible for UNRWA's assistance fall within the scope of Article 1(D) of the Convention. In light of this, the Council determined that it does not attribute significance to this interpretation, as it would result in the exclusion from the scope of the Qualification Directive of all Palestinians who were theoretically entitled to the protection and assistance of UNRWA but who did not invoke or receive this assistance. The Council regarded that this would be inconsistent with the purpose of Article 12(1)(a) of the QD to offer Palestinian refugees permanent, effective protection and referred to paragraph 60 of the El Kott judgment in this analysis.
In relation to the applicant involved, the Council of State noted that he had never received protection or assistance from UNRWA and had not resided in any of the sectors of UNRWA's operation so Article 12(1)(a) of the QD did not apply to him. The Council determined that the Secretary of State's initial position in the first asylum procedure that the applicant should not be entitled to refugee status on the basis of Article 12 QD does not stand in the way of its following view that the applicant does not fall within the scope of this provision. The Council continued that the Secretary of State's view was properly substantiated and so the judgment of the District Court is to be set aside and the case must be remanded to this Court for it to assess the merits.
Based on an unofficial translation from within the ELENA team, weekly legal update - 7 January 2022
Decision in Dutch
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