prove anything with respect to other UNRWA areas, unless there is evidence in a particular case that the applicant has a continuing right of residence in more than one of UNRWA’s five fields of operation. In any other cases, if a government alleges that a Palestinian is able to access effective assistance or protection in an UNRWA area other than one in which they have previously resided, the burden of proof should be on the government to prove this. Despite the flawed approach taken on this issue in Serin Alheto and XT, in theory at least, there remains the possibility of an applicant showing that UNRWA assistance has ceased for reasons beyond their control and that they do not have permission to enter or reside, nor could they live in safety and dignity, in any UNRWA field of operation.128 However, Palestinian refugees generally are unlikely to be aware of the intricacies of judicial interpretations of Article 1D, and they often struggle to find competent legal assistance in countries of asylum. Further, as is illustrated in some of the cases discussed below, national authorities may lack training and up to date information about the assistance offered by UNRWA in each of its fields of operation and the conditions of entry to and residence in those territories. In practice, the approach of considering return to any part of UNRWA’s area of operation may mean that some Palestinian refugees will not present the evidence that would be required in relation to all of UNRWA’s fields of operation to sufficiently prove their eligibility for inclusion under Article 1D. The subsequent confirmation in NB and AB that governments have a duty to cooperate with applicants to assemble the relevant evidence is helpful, but it is likely to remain difficult for many stateless persons to access and submit all the documents needed to prove all elements of their claim. Although individual cases can still succeed under the XT approach (with good legal representation, solid evidence, and a decision-maker who has an adequate understanding of Article 1D and the circumstances in UNRWA’s area of operation), more broadly, this approach is problematic as it does not properly take into account the pre-existing refugeehood of Palestinians, the protective purpose of the inclusion clause of Article 1D, nor the restrictions on Palestinians’ entry and residence in UNRWA areas. XT’s holding that a Palestinian’s previous travel from one UNRWA field of operation to another is relevant to whether they should be excluded under Article 1D is also flawed. This approach means that some Palestinians may be denied refugee status but be unable to leave the country in which they have sought asylum, if circumstances at the time of status determination are such that they are excluded under Article 1D but cannot return to any part of UNRWA’s area of operation. However, the opinion of the Advocate General in NB and AB indicates that the more relevant consideration is whether the applicant could, at the time of refugee status determination, return to an UNRWA area of operation.129 UNHCR’s 2017 Guidelines also confirm that the reasons for leaving an UNRWA area (and by analogy, previous movement between UNRWA fields) are not determinative – it is the situation (and ability to return to UNRWA’s area of operation) at the time of refugee status determination that matters.130 The holdings in NB and AB that the burden of proof is shared and shifts to government decision-makers in certain circumstances is helpful, and the recognition that governments are sometimes better placed to obtain certain information or documents is particularly relevant in some cases. This judgment also makes appropriate holdings relating to intentionality of harm. The holding that potential assistance or protection by civil society or government actors must be formal, durable, and based on a right to access that assistance or protection may assist some applicants. The observation in NB and AB that UNRWA must be able to fulfil its mandate effectively is also helpful, and it is to be hoped that future jurisprudence will take this approach and recognise that UNRWA does not provide a protective legal status such as refugee status or statelessness status (meaning that any protection provided by UNRWA is not effective in terms of international protection for refugees and stateless persons). 128 See also UNHCR, Statement on the Interpretation and Application of Article 1D of the 1951 Convention and Article 12(1) (a) of the EU Qualification Directive Issued in the Context of the Preliminary Ruling Reference to the Court of Justice of the European Union from the Bundesverwaltungsgericht (Germany) lodged on 3 July 2019 – Federal Republic of Germany v XT (C-507/19) (18 Aug 2020) https://www.refworld.org/docid/5f3bdd234.html, Para 24. The statement asserts that applicants should be assessed with respect to UNRWA fields of operation in which they had previously lived, rather than all five fields. 129 NB and AB v Secretary of State for the Home Department (United Kingdom), Case C 349/20 (AG Opinion, 6 Oct 2021) https:// bit.ly/3LOPsP4 130 UNHCR, Guidelines on International Protection, No. 13, Para 19, n 6.. 23