However, there has been a change in the reasoning of the asylum authorities on
the application of the second paragraph of Article 1D after the El Kott judgment.
According to the CGRA, two cumulative conditions must be fulfilled in order
for the second paragraph of Article 1D to apply. First, the applicant must have fled
because his “personal safety was at serious risk.” The CGRA considers “Persecution”
in the sense of Article 1A(2) Refugee Convention and “serious harm” in the sense of
Article 15 of the Qualification Directive as a situation where “personal safety was at
serious risk.” Socio-economic difficulties are not considered to constitute this kind of
situation unless they reach the threshold of persecution or serious harm. Secondly, it
must be established that it was impossible for UNRWA to fulfill its mission towards
the applicant – that is, UNRWA could not provide any assistance.466
The CGRA had stated that in applying El Kott, it was not necessary to examine
whether return to the UNRWA area of operations is possible.467 However, this statement
was overruled by the Aliens Litigation Council – Case No. 108.154468 (8 August 2013);
Case No. 100.713469 (10 April 2013); and Case No. 96.372470 (31 January 2013).
“The Council points out that the question, if the possibility of return in order
to avail himself again of UNRWA assistance is an essential part of article 1 D,
was not answered in the jurisprudence of the European Court of Justice, more
in particular in the judgment El Kott. The question was treated in the opinion
of the advocate general, but was not relevant to answer the questions referred
for a preliminary ruling because in the cases that were the object of it, it was
not disputed that the departure of the concerned persons is justified because
of reasons beyond their control and independent of their volition, which have
forced the persons concerned to leave the UNRWA area of operations and in
that way prevent them to enjoy the UNRWA delivered assistance.”471
The Advocate General of the CJEU states in his conclusion in El Kott that when it
is not possible to return to the area where UNRWA assistance was received, it has to
be accepted that the reason why assistance has ceased is beyond the person’s control
and independent of their volition:
“82. Second, it is quite conceivable, as has been pointed out to the Court, that
a person in receipt of UNRWA assistance may voluntarily leave the UNRWA
area on a temporary basis – for example, in order to visit a relative elsewhere
Luc Leboeuf, La Réception de La Directive Qualification En Droit Belge - Rapport Intermédiaire
2013 (Equipe droits européens et migrations (EDEM), 2013), 52, javascript:download_alfresco_
doc(’3ad9c396-5446-47ec-b63f-8a29348abe43’,’L.LEBOEUF, La r%C3%A9ception de la directive
qualification en droit belge, rapport interm%C3%A9diaire 2013.pdf’).
467
Ibid., 53.
468
Conseil du Contentieux des Étrangers, “Case 108154 [Dutch],” August 8, 2013, http://www.rvv-cce.
be/sites/default/files/arr/A108154.AN.pdf.
469
Conseil du Contentieux des Étrangers, “Case 100713 [Dutch],” April 10, 2013, http://www.rvv-cce.
be/sites/default/files/arr/A100713.AN.pdf.
470
Conseil du Contentieux des Étrangers, “Case 96372 [Dutch],” January 31, 2013, http://www.rvvcce.be/sites/default/files/arr/A96372.AN.pdf.
471
Conseil du Contentieux des Étrangers, “Case 108154 [Dutch],” 9.
466
Survey of Protection at the National Level
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