12/17/21, 3:16 PM CURIA - Documents as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply; “refugee status” means the recognition by a Member State of a third country national or a stateless person as a refugee; “person eligible for subsidiary protection” means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country’. Articles 13 and 18 of the Directive provide that the Member States are to grant refugee status or subsidiary protection status to third country nationals who qualify as refugees in accordance with Chapters II and III or Chapters II and V of that directive respectively. Chapter III of the Directive on qualification for being a refugee includes, under the heading ‘Exclusion’, Article 12(1)(a) which provides: ‘A third country national or a stateless person is excluded from being a refugee, if: he or she falls within the scope of Article 1D of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely 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 Directive’. Article 13 of the Directive provides: ‘Member States shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III.’ Chapter VII of the Directive, entitled ‘Content of International Protection’, includes Article 21(1) which provides: ‘Member States shall respect the principle of non-refoulement in accordance with their international obligations.’ In accordance with Articles 38 and 39, the Directive entered into force on 20 October 2004 and had to be transposed by 10 October 2006 at the latest. National legislation Article 3(1) of Law No CXXXIX of 1997 on asylum (Magyar Közlöny 1997/112 (XII.15.); ‘the Law on Asylum’), provides: ‘Subject to the exception provided for in Article 4, the refugee authority shall, upon application, recognise as a refugee a foreigner who proves or provides prima facie evidence that the provisions of the Geneva Convention apply to him under Article 1A and B(1)(b) of the Geneva Convention, and Article 1(2) and (3) of the Protocol.’ Pursuant to Article 38(2) of the Law on Asylum, in a decision refusing an application for asylum, the competent authority is to confirm whether there is a prohibition against refoulement and/or expulsion. Article 51(1) of Law No II of 2007 on the Entry and Stay of third country nationals (a harmadik országbeli állampolgárok beutazásáról és tartózkodásáról szóló 2007. évi II. törvény, Magyar Közlöny 2007/1 (I.5.)) provides: ‘Third country nationals may not be returned or expelled to the territory of a country that fails to satisfy the criterion of safe country of origin or safe third country in respect of the person in question, in particular where the third country national is likely to be persecuted for reasons of race, religion, nationality or membership of a particular social group, nor to the territory or border of a country where there is good reason to believe that the expelled third country national is likely to be subjected to torture or cruel, inhuman or degrading treatment or punishment.’ The dispute in the main proceedings and the questions referred for a preliminary ruling It is clear from the order for reference that Ms Bolbol, after having left the Gaza Strip in the company of her husband, arrived in Hungary with a visa on 10 January 2007. There, she subsequently obtained a residence permit from the immigration authority. On 21 June 2007, in case her residence permit was not extended, she submitted an application for asylum to BAH, citing the unsafe situation in the Gaza Strip caused by the daily clashes between Fatah and Hamas. Ms Bolbol based her application on the second subparagraph of Article 1D of the Geneva Convention, pointing out that she was a Palestinian residing outside UNRWA’s area of operations. Of her family members, only her father remained in the Gaza Strip. According to the order for reference, Ms Bolbol has not availed herself of the protection or assistance of UNRWA. She claims however to be entitled to such protection and assistance, relying in support of that claim on a UNRWA registration card issued to the family of her father’s cousins. In the absence of any documentary evidence, the defendant in the main proceedings disputes the family connection on which Ms Bolbol relies. In addition, despite the steps taken by Ms Bolbol at UNRWA, it has been unable to confirm her right to be registered on the basis of her family connections. In its decision of 14 September 2007, the defendant in the main proceedings refused Ms Bolbol’s application for asylum, but at the same time found that she could not be expelled. The refusal of Ms Bolbol’s application for asylum is based on Article 3(1) of the Law on Asylum. According to the grounds for refusal of the application, the second subparagraph of Article 1D of the Geneva Convention does not require unconditional recognition as a refugee but defines the category of persons to whom the provisions of the Geneva Convention apply. It follows that Palestinians must also be given access to the asylum procedure and that it is necessary to examine whether they meet the definition of ‘refugee’ for the purposes of Article 1A of that convention. According to that decision, it is not possible to grant Ms Bolbol refugee status because Article 1A of the Geneva Convention does not apply to her, since she did not leave her country of origin owing to persecution for reasons of race, religion, nationality or because of political persecution. https://curia.europa.eu/juris/document/document.jsf;jsessionid=DF0BA87C25590D7EDAB2C5BE0DF67C8B?text=&docid=82833&pageIndex=0&… 3/6