with UNRWA. AB is severely disabled and has complex medical issues and other needs, and he, his
parents, and siblings all suffered in Lebanon as a result of his disability. In its judgment of March 2022, the
CJEU held that:
1) To properly assess whether UNRWA assistance had ceased for reasons beyond the control of
the applicant, the deciding authority of the country of asylum must consider both the situation at
the date the applicant departed from UNRWA’s area of operation and the situation at the date of
decision. Even if UNRWA assistance had not been available in the past, the applicant should be
excluded from protection under Article 1D (and its EU law equivalent) if, by the date of decision,
it had “become possible for UNRWA to guarantee him or her living conditions commensurate
with its mission.”115 However, the burden of proof shifts to the deciding authority with respect to
proving a resumption of UNRWA services, as set out below.
2) The burden of proof is shared between the applicant and the government and shifts to the
deciding authority in certain circumstances. The applicant must submit information and
documents needed to substantiate the application, and the deciding authority “must, if necessary,
cooperate actively with him or her in order to determine and supplement the relevant elements
of the application, those authorities indeed often being better placed than an applicant to gain
access to certain types of documents.”116 The Court goes on to find that: “the burden of proof
lies with the applicants to prove that they have actually had recourse to UNRWA’s protection
or assistance and that that protection or assistance has ceased.” If they demonstrate this,
but the deciding authority considers that the applicant could now return and access adequate
protection or assistance from UNRWA, it is for that authority “to demonstrate, as the case may
be, that the circumstances have in the meantime changed in the area of operations concerned,
so that those persons may once again receive protection or assistance from UNRWA.”117
3) The applicant does not need to prove that there was any intentional infliction of harm or intentional
failure of assistance or protection by UNRWA or the government of a state or territory in which
UNRWA operates. “[I]t is sufficient to establish that UNRWA’s assistance or protection has in
fact ceased for any reason, so that that body [UNRWA] is no longer in a position, for objective
reasons or reasons relating to the person’s individual situation, to guarantee him or her living
conditions commensurate with its mission.”118
4) With respect to possible assistance from civil society or governments actors, “there can be no
question of treating … [UNRWA] in the same way as civil society actors such as NGOs, which
are quite different entities from UNRWA and … cannot provide ‘assistance’ or ‘protection’ for
the purposes of the [1951 Refugee] Geneva Convention.”119 However, if UNRWA cooperates
with a civil society or host government agency or actor to fulfil its mission, and there is a stable
and formal relationship between the organisations, and the applicant has a durable right to
such services, then their services are relevant to considerations of whether UNWRA can provide
adequate assistance or protection.
The Court also observes, as indicated by the Advocate General in his 2021 Opinion in this case, that
UNRWA must be able “to fulfil its mandate effectively and ensure that the persons concerned live in
dignified conditions” (with reference to Germany v XT).120
115 NB and AB (2022), 7.
116 NB and AB (2022), 8.
117 NB and AB (2022), 8.
118 NB and AB (2022), 8.
119 NB and AB (2022), 9.
120 NB and AB (2022), 9 (emphasis added); and see NB and AB v Secretary of State for the Home Department (United Kingdom),
Case C349/20 (AG Opinion, 6 Oct 2021) https://bit.ly/3sV8uwB
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