asylum seeker finds himself in a situation where his personal safety is at serious
risk and if it is impossible for that agency to guarantee that his living conditions
in that area will be commensurate with the mission entrusted to that agency.
(HvJ 19 december 2012, C-364/11, El Kott v. Bevándorlási és Államolgársági
Hivatal, § 65). In this case the concerned person must automatically be granted
refugee status, unless he must be excluded because of the reasons mentioned
in article 1E and 1F of the Refugee Convention. (HvJ 19 December 2012,
C-364/11, El Kott v. Bevándorlási és Államolgársági Hivatal, § 81).477
If this is not the case, the Council examines the possibility of return to the
UNRWA area of operations.
There has also been an interesting judgment of the CCE regarding the application
of Article 1D in situations where the conditions to grant subsidiary protection
are fulfilled. In Case No. 120.586 (13 March 2014), the CGRA refused refugee
status and granted subsidiary protection status to a Palestinian refugee registered
with UNRWA in Gaza. The Palestinian refugee appealed this decision. The CCE
reasoned:
“The Council states that the conclusion of the disputed decision is not
correct. One cannot state that the applicant can return to the UNRWA area
of operations without any problems to avail himself of the protection of this
organization and subsequently grant him subsidiary protection based on
article 48/4, §2, c) of the Aliens Law, which would mean that in Gaza there
is a situation of indiscriminate violence due to an international or internal
armed conflict.”
The Council’s position is that it is contradictory to say, on one hand, that a person
can return (and therefore is not entitled to recognition under the second paragraph of
Article 1D), but to then grant him subsidiary protection, because this implies that the
CGRS is of the opinion that the ongoing violence is to such a degree that it would
make it improper to force the person to return.478
Palestinian refugees registered with UNRWA fleeing the armed conflict in Syria
have been ipso facto recognized as refugees in Belgium according to the second
paragraph of article 1D. As of October 2014, Palestinians registered with UNRWA in
Gaza,479 but other Palestinians may or may not be recognized as refugees.480
5. Refugee Status Determination Process: Outcome
Applicants granted either refugee status or subsidiary protection receive
residence permits. If granted refugee status, the residence permit is for an indefinite
477
Conseil du Contentieux des Étrangers, “Case 96656 [Dutch],” 5, item 2.8.
Information provided by Marjan Claes.
479
Belgian Refugee Council (CBAR-BCHV), “Verslag van de Contactvergadering [Report of the Contact
Meeting],” September 9, 2014, para. 14, http://www.cbar-bchv.be/LinkClick.aspx?fileticket=3fR0nr
De3do%3d&tabid=219&mid=1424&language=nl-NL.
480
Information provided by Marjan Claes.
478
Survey of Protection at the National Level
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