discontinuation of UNRWA’s activities, or any other objective reason outside the control of
the person concerned such that the person is (un)able to (re)avail themselves of the protection
or assistance of UNRWA.379 It follows that the prevalent interpretation amongst host states
dictates that Palestinian refugees must not be receiving any benefits from a UN organ or
agency in order to be eligible for Refugee Convention coverage.
The CJEU’s Interpretations of Article 1D380
The Court of Justice of the European Union (CJEU) has considered the application of
Article 1D to Palestinian refugees in several cases. However, the CJEU’s jurisprudence
has never recognized the cessation of the UNCCP and its inability to fulfil its protection
mandate as grounds to trigger Article 1D’s inclusion clause, and instead has largely
adopted the false assumption that UNRWA is, in theory, capable of providing protection
to Palestinian refugees.
The first CJEU case to consider Article 1D was Bolbol v Hungary in 2010, in which the
Court found that those who are registered with, or otherwise avail themselves of assistance
provided by UNRWA, come within Article 1D and are therefore excluded from refugee
status under the Refugee Convention.381 As argued by BADIL, however, the application
of Article 1D to Palestinian refugees should be determined on the basis of Palestinian
origin and experience of displacement, regardless of their use or non-use of services
provided by UNRWA. In 2012, the CJEU upheld Bolbol in the El Kott v Hungary case,
adding a restriction at variance with a good-faith interpretation of the plain language of
the Refugee Convention. In El Kott, the Court specified that the phrase “for any reason” in
Article 1D means a reason “beyond the control” and “independent of the volition” of the
applicant,382 an interpretation which leaves a high evidentiary burden on the applicant to
prove the existence of extreme and exceptional circumstances, and disregards the fact that
“the key consideration should be whether a Palestinian refugee is able to access effective
protection”.383
The CJEU in Serin Alheto v Bulgaria in 2018 found that Palestinians cannot benefit from
the inclusion clause in Article 1D if they could be admitted to any area in which UNRWA
operates.384 Similarly, the Court found in Germany v XT in 2021 that when determining
379
UNHCR, ‘Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention relating
to the Status of Refugees to Palestinian Refugees’ (December 2017) HCR/GIP/17/13 <https://www.refworld.org/
pdfid/5a1836804.pdf> accessed 3 October 2022; UNHCR, ‘Note on UNHCR's Interpretation of Article 1D of the
1951 Convention relating to the Status of Refugees and Article 12(1)(a) of the EU Qualification Directive in the context
of Palestinian refugees seeking international protection’ (2013) <https://www.refworld.org/docid/518cb8c84.html>
accessed 3 October 2022.
380
For more information, see Orchard, Search for Protection (n 171).
381
Court of Justice of the European Union (CJEU) Case C-31/09 Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal
[2010] ECR I-05539.
382
CJEU Case C‑364/11 Mostafa Abed El Karem El Kott and Others v Bevándorlási és Állampolgársági Hivatal [2012].
383
Orchard, Search for Protection (n 171), 38.
384
CJEU Case C-585/16 Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite [2018].
82
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