Konferanse om palestinske asylsøkere

1. Konferanse om palestinske asylsøkere 12. februar 2013 Litteraturhuset, Wergelandsalen.Arrangører: Palestinerleir, Antirasistisk Senter, Norsk Folkehjelp og Foreningen av tolvte januar

2. Article 1 D of the 1951 Convention: • This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. • When such protection or assistance has ceased for any reason, without the position of such persons being definitively 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 Convention.

3. 1951 Convention relating to the Status of Refugees recognizes three categories of refugees in Article 1 • “Statutory refugees” recognized under Article 1A(1), who had been recognized as refugees under preexisting arrangements at the time of the entry into force of the 1951 Convention • Refugees with a well-founded fear of being persecuted on a Convention ground in Article 1A(2). • Refugees under Article 1D, only a sub-set of whom are recognized as falling within the Refugee Convention protection scheme.

4. Objectives of Article 1D • to avoid overlapping competencies between UNHCR and other organs or agencies of the United Nations, including UNRWA for Palestinian refugees, through the exclusion clause contained in first paragraph of Article 1D, and • to ensure the continuity of protection and assistance for refugees whose refugee character has already been established, in circumstances where that protection or assistance has ceased in accordance with paragraph 2 of Article 1D

5. EU Qualification Directive Article 12(1)(a) • 1. A third country national or a stateless person is excluded from being a refugee, if: • (a) he or she falls within the scope of Article 1 D 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.”

6. EU Court of Justice caseson the interpretation of Art 12(1)(a) in the EU Qualification Directive • Bolbol v. Bevándorlási és Állampolgársági Hivatal • El Kott and Others

7. Bolbol – Article 1D (para. 1): Interpretation of persons receiving “protection or assistance from organs or agencies of the UN other than UNHCR” • UNHCR: Palestinian refugees (1948) and Palestinian displaced persons (1967), and their descendants • Being registered and/or recorded by UNRWA may help an individual prove that he/she falls within the scope of Article 1D, but is not conclusive – need to look at UNRWA CERI & determine eligibility • UNHCR considers the above persons who are inside the area of operations of UNRWA to be “ at present receiving protection or assistance” whether or not they are actually in receipt of such assistance (eligibility is sufficient) • CJEU: a person receives protection or assistance from a UN agency other than UNHCR, when that person has actually availed himself of that protection or assistance. It does not cover persons who are or have been eligible to receive protection or assistance from that agency (without having been in actual receipt). • While registration with UNRWA is sufficient proof of actually receiving assistance from it, because UNRWA assistance can be provided even in the absence of such registration, beneficiaries must be permitted to adduce evidence of that assistance by other means.

8. Palestinian refugees falling within the scope of Article 1D • Palestinians who are “Palestine refugees” within the sense of UN General Assembly Resolution 194 (III) of 11 December 1948 and subsequent UN General Assembly Resolutions, and who, as a result of the 1948 Arab-Israeli conflict, were displaced from that part of Mandate Palestine which became Israel, and who have been unable to return there; • Palestinians not falling within paragraph (a) above who are “displaced persons” within the sense of UN General Assembly Resolution 2252 (ES-V) of 4 July 1967 and subsequent UN General Assembly resolutions, and who, as a result of the 1967 Arab-Israeli conflict, have been displaced from the Palestinian territory occupied by Israel since 1967 and have been unable to return there. • Includes descendants of persons displaced at the time of the 1948 and 1967 hostilities.

9. Persons falling within Articles 1C, 1E or 1F of the 1951 Convention do not fall within the scope of Article 1D, even if they remain “Palestine refugees” or “displaced persons” whose position is yet to be definitively settled in accordance with the relevant UN General Assembly resolutions. • Palestinians who do not fall within the scope of Article 1D may nevertheless qualify as refugees if they fulfill the criteria of Article 1A(2) of the 1951 Convention.

10. El Kott – Article 1D (para. 2): Interpretation of “shall ipso facto be entitled to the benefits of this Convention” • UNHCR: the person must automatically be granted the substantive benefits that are attached to refugee status in the 1951 Convention, unless the exclusion or cessation clauses are applicable. • No separate determination of well-founded fear is required. • CJEU: the person must automatically be granted refugee status (MS must recognize him/her as a refugee), provided they are not caught by the exclusion or cessation clauses. • The person is “not necessarily required to show that they have a well-founded fear of being persecuted” within the meaning of Article 1A(2), BUT, the person must apply for refugee status & the MS must assess whether they actually received assistance from UNRWA, the assistance of UNRWA has ceased, and the cessation and/or exclusion clauses do not apply • MS must assess all relevant factors why it is no longer possible for the person to benefit from UNRWA assistance, with reference to the provisions of the QD regarding assessment of facts & circumstances applicable to all applications for refugee status

11. El Kott – Article 1D (para. 2): Interpretation of “when such protection or assistance has ceased for any reason” • UNHCR: Includes the situation where the person is outside of the UNRWA area of operations and cannot re-avail him/herself of UNRWA’s protection or assistance for objective reasons outside of his/her control • CJEU: Includes the situation in which a person who, after actually availing himself of such protection or assistance, ceases to receive it for a reason beyond his control and independent of his volition. MS must ascertain, by carrying out an individual assessment, whether that person was forced to leave the UNRWA area of operations, which will be the case where their personal safety was at serious risk & it was impossible for UNRWA to guarantee his living conditions in the UNRWA area of operations In keeping with UNRWA’s mandate • Outstanding question: Does the CJEU interpretation include persons who voluntarily depart, but who cannot re-avail themselves of UNRWA’s protection or assistance?

12. UNHCR positions on interpretation of Article 1D • UNHCR Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, October 2009, available at: http://www.unhcr.org/refworld/docid/4add77d42.html • UNHCR Revised Statement on Article 1D of the 1951 Convention Issued in the context of the preliminary ruling reference to the Court of Justice of the European Communities from the Budapest Municipal Court regarding the interpretation of Article 12(1)(a) of the Qualification Directive in the case Bolbol v. Bevándorlási és Állampolgársági Hivatal, available at: http://www.unhcr.org/refworld/docid/4add79a82.html • UNHCR Observations in the case C-364/11 El Kott and Others regarding the interpretation of Article 1D of the 1951 Convention and Article 12(1)(a) of the Qualification Directive, 27 October 2011, available at: http://www.unhcr.org/refworld/docid/4eaa95d92.html • UNHCR's Oral Intervention at the Court of Justice of the European Union- Hearing of the case of El Kott and Others v. Hungary (C-364/11), 15 May 2012, available at: http://www.unhcr.org/refworld/docid/4fbd1e112.html