Scottish Court of Session Decisions

Act: Bovey, QC; Bryce; Drummond Miller LLP

Alt: Webster; Office of the Advocate General

14 January 2014

[1] In this case the applicant seeks leave to appeal from a decision of the Upper Tribunal dated 24 June 2013. Permission to appeal to the court was sought from the Upper Tribunal and was refused on 17 July 2013. Throughout the long history of proceedings, it is apparent that the interpretation of the applicable law is difficult and uncertain.

[2] At the heart of the present case is the question of the status of the applicant as a displaced Palestinian who sought asylum in the United Kingdom and the effect on his case of the recent ruling of the Court of Justice of the European Union (the "CJEU") in Abed El Karem El Kott v Bevandorlasi Es Allampolgarsagi Hivatal [2013] All ER (EC) 1176. In the El Kott case, the CJEU interpreted the Refugee Qualification Directive 2004/83/EC on minimum standards for the qualification and status of third county nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. This Directive in effect transposed into EU Law article 1D of the Refugee Convention (the convention on the status of refugees, signed at Geneva on 28 July 1951 as supplemented and amended by the protocol relating to the status of refugees, concluded in New York on 31 January 1967) ("the Geneva Convention"). The interpretation of the Directive is relevant to the interpretation of the equivalent provisions in the Geneva Convention.

[3] Article 1D of the Geneva Convention states:

"This Convention shall not apply to persons who are at present receiving from organs or agencies of United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention."

[4] The longstanding difficulties of interpretation related to article 1D of the Geneva Convention which are highlighted in the El Kott case and earlier case law are important to the understanding of the history of the applicant's case and the way in which it was originally presented and dealt with by the decision makers who decided the case prior to the ruling in El Kott in 2013.

[5] The applicant's case as originally presented was not founded on article 1D. The main claim was that the applicant was a refugee as defined in article 1A(2) of the Geneva Convention "...and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". It appears that prior to 2013, article 1D was not generally regarded as a sound legal basis for founding a claim for refugee status. Rather it was regarded as a hurdle to be overcome before an applicant could claim article 1A(2) protection. In considering the proper approach to interpretation the court in El Kott stated at paragraph 63:

"In the light of that objective, a Palestinian refugee must be regarded as having been forced to leave UNRWA's area of operations if his personal safety is at serious risk and if it is impossible for that agency to guarantee that his living conditions in that area will be commensurate with the mission entrusted to that agency."

Paragraph 65 stated:

"In the light of the foregoing considerations, the answer to question (2) is that the second sentence of Article 12(1)(a) of Directive 2004/83 must be interpreted as meaning that the cessation of protection or assistance from organs or agencies of the United Nations other than the HCR '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 responsible for examining the asylum application made by such a person 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."

[6] I understand that it is not disputed that the applicant is a Palestinian who last lived in the Nahr al-Bared refugee camp in Lebanon under the protection of the United Nations Relief and Works Agency for Palestinian refugees in the Near East ("UNRWA"). There has never been a dispute between the parties that said refugee camp was the scene of prolonged hostilities between Fatah al-Islam and the Lebanese army from around mid-May 2007, the fighting having been instigated by the former organisation. As a result of the fighting, some 30,000 Palestinians staying in the camp had to flee (paragraph 18 of the decision of Immigration Judge Forbes dated 17 October 2007). Said immigration judge also concluded that such protection as the appellant had prior to May 2007 "appears to me to have ceased". There was considerable dispute between the parties before me about what was meant by this finding. There are no findings in fact in this case about whether UNRWA was able at the time the applicant fled to guarantee that the applicant's living conditions "in that area" would be commensurate with the mission entrusted to that organ or agency. If the words "in that area" are a reference to the place where the applicant was actually availing himself of protection or assistance, namely, the said camp, it might not be difficult to infer that it was not possible for UNRWA, in the conditions which existed, to provide that assistance in the area of the camp. There are however various other possible interpretations about what is meant by "in that area". The interpretation is in dispute in the present case. All I can say is that there are no findings in fact about what UNRWA were able to do for the applicant either in Lebanon or in other countries where UNRWA operated at the time the applicant fled in May 2007.

[7] In refusing leave to appeal, the vice president of the Upper Tribunal stated;

"Undoubtedly there are questions still unanswered about the precise meaning of article 1D of the Refugee Convention, but it does not seem to me that it is arguable that the appellant in this case, with his history, is arguably likely to be able to benefit from any interpretation consonant with El Kott given that there is no evidence that UNRWA is not willing to recommence its assistance to him. However interesting the academic issues, therefore, I do not consider that this is an appropriate case for the Tribunal to grant leave to the Inner House."

[8] I consider that it is significant that there are no findings in fact about what UNRWA was able or willing to do for the applicant in May 2007 when the immigration judge concluded that UNRWA protection appears to have ceased. This issue is not addressed by the Upper Tribunal albeit it appears to be critical to the case following the El Kott ruling.

[9] The Upper Tribunal interpreted the El Kott ruling as referring to the wider areas of operation of UNRWA and proceeded on the basis that although the appellant might have been forced to leave the said camp, the applicant had not shown that he was compelled to leave the wider area of operations of UNRWA which the Upper Tribunal interpreted as extending to countries beyond Lebanon. They conclude, in paragraph 33 of the decision dated 24 June 2013, that the applicant's history

"demonstrates that he has no well-founded fear of persecution in Lebanon, and he has never claimed to have any fear in the other countries within UNRWA's area of operations. Others in Nahr al-Bared had relocated to other refugee camps; the applicant did not appear to have tried".

The Upper Tribunal appear to have concluded from the finding that the applicant lacked credibility about his fear of persecution that the applicant could not succeed. The Upper Tribunal concluded that the applicant had simply elected to dispense with UNRWA's assistance and voluntarily to leave UNRWA's areas of operations which area they defined very widely. The Upper Tribunal did not address the issue of whether when the applicant left the camp in circumstances where the UNRWA protection had failed not only in circumstances beyond the applicant's control but also beyond UNRWA's control, it could be inferred that it was impossible for UNRWA to guarantee that his living conditions in that area (however that area is to be properly defined) would be commensurate with the mission entrusted to that organ or agency. The situation in this case is that UNRWA protection broke down because of conflicting armed militia displacing some 30,000 people without UNRWA being able to prevent this.

[10] I consider that the law applicable to the factual circumstances of the applicant is difficult and uncertain and further complicated by the limited facts found in this case about matters which became important only after the El Kott ruling. I do not consider that one can draw conclusions of fact about the abilities of UNRWA in relation to the applicant from the adverse findings of his credibility re his fear of persecution. I consider that the appeal issues advanced on behalf of the applicant raise important points of principle about the interpretation and application of the El Kott ruling in a case such as this.

[11] For the reasons given I grant leave to the appellant to appeal the decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 24 June 2013.