based and individualised threats would qualify as circumstances beyond the
applicant’s control. Examples of group‑based threats would include armed
conflict or other situations of violence, such as civil unrest, widespread
insecurity or events seriously disturbing public order.46 Threats of a more
individualised nature, which could also compel a Palestinian to leave an
UNRWA area for reasons beyond his or her control, would include sexual or
gender‑based violence, torture, inhuman or degrading treatment or
punishment, human trafficking and exploitation, forced recruitment, severe
discrimination,47 or arbitrary arrest or detention.
f. Where any of these above-mentioned threats emanate from the authorities,
protection under Article 1D would be required. Similarly, where the
authorities are unable or unwilling to provide protection against threats
emanating from non-State actors, protection under Article 1D(2) would also
apply. A case-by-case assessment is necessary to determine the application
of Article 1D in these cases.48
(iv) Practical, legal and/or safety barriers preventing an applicant from
(re)availing him/herself of the protection or assistance of UNRWA
g. Practical barriers include obstacles which prevent access the UNRWA area
of operation, for example, because of border closures.
h. Legal barriers would include absence of documentation allowing the
individual to travel to, or transit through, or (re)enter and reside in the
relevant UNRWA area of operation. Where the authorities refuse
(re)admission or the renewal of travel or other requisite documents, the
second paragraph of Article 1D would be satisfied. An applicant would not,
however, benefit from protection under the 1951 Convention pursuant to
Article 1D(2) if he or she were to seek to frustrate his or her (re)admission
and stay by refusing to co-operate, for example, in acquiring documents.49
i.
Barriers relating to safety or personal security which prevent (re)availment
could include dangers en route such as minefields, factional fighting, shifting
46 See, UNHCR, Guidelines on International Protection No. 12: Claims for refugee status related to
situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967
Protocol relating to the Status of Refugees and the regional refugee definitions, 2 December
2016, HCR/GIP/16/12, http://www.refworld.org/docid/583595ff4.html.
47 This would often but not always include systematic or a pattern of consistent discrimination. See
UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April
2001, http://www.refworld.org/docid/3b20a3914.html, at para. 17. It also includes measures of
discrimination which “lead to consequences of a substantially prejudicial nature [… for example,] serious
restrictions on the right to earn a livelihood, the right to practise religion, or access to normally available
educational facilities.” UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees,
December 2011, HCR/1P/4/ENG/REV. 3, http://www.refworld.org/docid/4f33c8d92.html, (“UNHCR
Handbook”) para. 54.
48 The provision of services by UNRWA is not relevant for this assessment. Non-state actors, including
international organisations, do not have the attributes of a State, and are not in a position to provide
protection and enforce the rule of law in the same fashion as a State.
49 Article 2 of the 1951 Convention notes that every refugee has duties to the country in which he or she
finds himself or herself, which require in particular that he or she conform to its laws and regulations as
well as to measures taken for the maintenance of public order.
11
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