Office français de protection des réfugiés et apatrides, OFPRA v SW (C-294/22)

Contents

Judgment of the Court (Fourth Chamber)5 October 2023^note(Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Directive 2011/95/EU — Article 12 — Exclusion from being a refugee — Person registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) — Conditions for that person to be entitled ipso facto to the benefits of Directive 2011/95 — Cessation of UNRWA protection or assistance — Failure to provide medical care — Conditions)In Case C‑294/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, France), made by decision of 22 March 2022, received at the Court on 3 May 2022, in the proceedingsOffice français de protection des réfugiés et apatrides,vSW,THE COURT (Fourth Chamber),composed of C. Lycourgos, President of the Chamber, L.S. Rossi (Rapporteur), J.‑C. Bonichot, S. Rodin and O. Spineanu-Matei, Judges,Advocate General: N. Emiliou,Registrar: M. Siekierzyńska, Administrator,having regard to the written procedure and further to the hearing on 26 January 2023,after considering the observations submitted on behalf of:– SW, by P. Spinosi, avocat,– the French Government, by J.‑L. Carré and J. Illouz, acting as Agents,– the Belgian Government, by M. Jacobs and M. Van Regemorter, acting as Agents,– the European Commission, by A. Azéma and J. Hottiaux, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 May 2023,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 12(1)(a) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

2The request has been made in proceedings between SW and Office français de protection des réfugiés et apatrides (French Office for the Protection of Refugees and Stateless Persons, France; ‘OFPRA’) concerning the latter’s rejection of SW’s application to be granted refugee status or, failing that, subsidiary protection.

Legal context

International law

The Geneva Convention

3The Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), entered into force on 22 April 1954. It was supplemented and amended by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (that convention, as supplemented and amended, being referred to hereinafter as ‘the Geneva Convention’).

4Article 1(D) of the Geneva Convention provides:‘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 [(HCR)] 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.’

United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)

5United Nations General Assembly Resolution No 302 (IV) of 8 December 1949, concerning assistance to Palestine refugees, established the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

6UNRWA has an area of operation that covers five fields: the Gaza Strip, the West Bank, Jordan, Lebanon and Syria.

7According to Resolution No 74/83 of the General Assembly of the United Nations of 13 December 2019, on assistance to Palestine refugees (‘Resolution No 74/83’), which was applicable when the Director-General of OFPRA adopted the decision at issue in the main proceedings:‘The General Assembly,…Acknowledging the essential role that [UNRWA] has played for over 65 years since its establishment in ameliorating the plight of the Palestine refugees through the provision of education, health, relief and social services and ongoing work in the areas of camp infrastructure, microfinance, protection and emergency assistance,…Taking note also of the report of the Commissioner-General of 31 May 2019, submitted pursuant to paragraph 57 of the report of the Secretary-General, and expressing concern regarding the severe financial crisis of the Agency and the negative implications for the continued delivery of core programmes to the Palestine refugees in all fields of operation,…Expressing grave concern at the especially difficult situation of the Palestine refugees under occupation, including with regard to their safety, well-being and socioeconomic living conditions,…1. Notes with regret that repatriation or compensation of the refugees, as provided for in paragraph 11 of General Assembly resolution 194 (III), has not yet been effected, and that, therefore, the situation of the Palestine refugees continues to be a matter of grave concern and the Palestine refugees continue to require assistance to meet basic health, education and living needs;…3. Affirms the necessity for the continuation of the work of [UNRWA] and the importance of its unimpeded operation and its provision of services, including emergency assistance, for the well-being, protection and human development of the Palestine refugees and for the stability of the region, pending the just resolution of the question of the Palestine refugees;…7. Decides to extend the mandate of [UNRWA] until 30 June 2023, without prejudice to the provisions of paragraph 11 of General Assembly resolution 194 (III).’

8By Resolution No 77/123 of the General Assembly of the United Nations of 12 December 2022, the mandate of UNRWA was extended until 30 June 2026.

European Union law

9Recitals 15 and 35 of Directive 2011/95 state as follows:(15) Those third-country nationals or stateless persons who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds fall outside the scope of this Directive.…(35) Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.’

10Article 2 of that directive, headed ‘Definitions’, provides:‘For the purposes of this Directive the following definitions shall apply:…(d) “refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;…’

11Article 3 of Directive 2011/95, headed ‘More favourable standards’, provides:‘Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.’

12Article 4 of that directive, headed ‘Assessment of facts and circumstances’, provides, in paragraph 3:‘The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied;(b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;(d) whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country;(e) whether the applicant could reasonably be expected to avail himself or herself of the protection of another country where he or she could assert citizenship.’

13Article 6 of Directive 2011/95, headed ‘Actors of persecution or serious harm’, provides:‘Actors of persecution or serious harm include:(a) the State;(b) parties or organisations controlling the State or a substantial part of the territory of the State;(c) non-State actors, if it can be demonstrated that the actors mentioned in points (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.’

14Article 12 of that directive, headed ‘Exclusion’, provides, in paragraph 1 thereof:‘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 [HCR]. 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, those persons shall ipso facto be entitled to the benefits of this Directive;(b) he or she is recognised by the competent authorities of the country in which he or she has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country, or rights and obligations equivalent to those.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

15SW, a stateless person of Palestinian origin, was born in 1976 in Lebanon, where he lived until he left that country in February 2019 and arrived in France on 11 August 2019. It is clear from the file available to the Court that, since birth, SW has suffered from a serious genetic disease which means that he requires care that UNRWA has been unable to provide him with due to a lack of funds.

16By decision of 11 October 2019, the Director-General of OFPRA rejected SW’s application to be granted refugee status or, failing that, subsidiary protection.

17By decision of 9 December 2020 by which the Cour nationale du droit d’asile (National Court of Asylum, France) annulled that decision and confirmed that SW had refugee status.

18OFPRA lodged an appeal on a point of law before the Conseil d’État (Council of State, France) against that decision.

19OFPRA claims that the Cour nationale du droit d’asile (National Court of Asylum) made a number of errors in law. First, it failed to research whether SW has been forced to leave the UNRWA area of operation due to threats to his security. Second, it held, incorrectly, that the fact that UNRWA was unable to fund tertiary healthcare appropriate to the state of health of a stateless person of Palestinian origin is a reason why the effective protection of that agency had ceased, thereby entitling that stateless person to claim protection under the Geneva Convention. Lastly, it held, incorrectly, that UNRWA had to be regarded as being unable to perform the mission entrusted to it of providing assistance, whereas paying for tertiary healthcare is not part of that mission and it was not established that SW could not be given appropriate treatment in Lebanon.

20The referring court notes that, under the terms of Resolution No 74/83, the operations of UNRWA were carried out ‘for the well-being, protection and human development of the Palestine refugees’ with a view to meeting ‘basic health, education and living needs’. Thus, in accordance with Article 1(D) of the Geneva Convention, that convention is not applicable to a stateless person of Palestinian origin where he or she is in fact benefiting from the assistance or protection of the UNRWA as thus defined.

21In its judgment of 19 December 2012, Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826), the Court held that the second sentence of Article 12(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12), the content of which was reproduced identically in the second sentence of Article 12(1)(a) of Directive 2011/95, must be interpreted as meaning that the cessation of protection or assistance from organs or agencies of the United Nations other than the HCR ‘for any reason’ 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. According to that judgment, it is for the competent national authorities of the Member State responsible for examining the asylum application made by such a person to ascertain, by carrying out an assessment of the application on an individual basis, whether that person was forced to leave the area of operations of such an organ or agency, which will be the case where his personal safety was at serious risk and it was impossible for that organ or agency to guarantee that his living conditions in that area would be commensurate with the mission entrusted to that organ or agency.

22In the present case, it is clear from the decision of 9 December 2020 of the Cour nationale du droit d’asile (National Court of Asylum) that, in order to reach its finding that the protection of SW or the assistance provided to him by UNRWA had ceased and that, consequently, he was fully entitled to claim refugee status, under the second sentence of Article 12(1)(a) of Directive 2011/95, that court took the view that it was established that UNRWA was unable to give SW sufficient access to the healthcare he needed in order to survive and, thus, to guarantee SW the living conditions that were commensurate with the mission entrusted to it of providing assistance, to the point that his personal safety was at serious risk and he was forced to leave Lebanon.

23In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer to the Court of Justice the following questions for a preliminary ruling:(1) Irrespective of the provisions of national law according to which, under certain circumstances, foreign nationals can be allowed to stay on account of their state of health, and which where necessary protect them from an expulsion order, must Article 12(1)(a) of [Directive 2011/95] be interpreted as meaning that where a sick Palestinian refugee, after actually availing himself of UNRWA protection or assistance, leaves the State or territory in the area of operations of that agency in which he had his habitual residence because he cannot have sufficient access there to the care and treatment required by his state of health and because that failure to provide care and treatment presents a genuine risk to his life or physical integrity, there is reason to consider that his personal safety is at serious risk and that he is in a situation in which it is impossible for UNRWA to guarantee that his living conditions will be commensurate with the mission entrusted to it?(2) If the answer is in the affirmative, what are the criteria for identifying such a situation, concerning for example the seriousness of the illness or the nature of the care needed?’

Consideration of the questions referred

24By its questions referred for a preliminary ruling, which it is appropriate to deal with together, the referring court asks, in essence, whether and, if so, in what circumstances the second sentence of Article 12(1)(a) of Directive 2011/95 must be interpreted as meaning that UNRWA’s protection or assistance ceased when that agency became unable to ensure that a stateless person of Palestinian origin enjoying such protection or assistance has access to the healthcare and medical treatment that his state of health requires.

25In order to answer those questions, it must be noted that, according to the first sentence of Article 12(1)(a) of Directive 2011/95, a third-country national or a stateless person is excluded from being a refugee ‘if 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 [HCR]’.

26The first paragraph of Article 1(D) of the Geneva Convention provides that that convention is not to apply to persons who ‘are at present receiving from organs or agencies of the United Nations other than the [HCR]’ protection or assistance.

27UNRWA is a United Nations agency which was set up to protect and assist Palestinians in their capacity as ‘Palestine refugees’. Its mandate covers its area of operations which consists of five fields, namely the Gaza Strip, the West Bank (including East Jerusalem), Jordan, Lebanon and Syria.

28As regards the mission entrusted to it, UNRWA must be regarded as an agency of the United Nations – separate from the HCR – offering protection and assistance within the meaning of Article 1(D) of the Geneva Convention.

29Specifically, any person, such as SW, who is registered with UNRWA, is eligible to receive protection and assistance from that agency in the interests of his or her well-being as a refugee (judgment of 3 March 2022, Secretary of State for the Home Department (Refugee status of a stateless person of Palestinian origin), C‑349/20, EU:C:2022:151, paragraph 47 and the case-law cited).

30On account of that specific refugee status established in those territories of the Near East for Palestinians, persons registered with UNRWA are, in principle, by virtue of the first sentence of Article 12(1)(a) of Directive 2011/95, which corresponds to the first paragraph of Article 1(D) of the Geneva Convention, excluded from refugee status in the European Union (judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin), C‑507/19, EU:C:2021:3, paragraph 49 and the case-law cited).

31However, it follows from the second sentence of Article 12(1)(a) of Directive 2011/95, which corresponds to the second paragraph of Article 1(D) of the Geneva Convention, that when UNRWA’s 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, those persons shall ipso facto be entitled to the benefits of Directive 2011/95 (see, to that effect, judgment of 3 March 2022, Secretary of State for the Home Department (Refugee status of a stateless person of Palestinian origin), C‑349/20, EU:C:2022:151, paragraph 49 and the case-law cited).

32It is not in dispute that the position of the persons receiving assistance from UNRWA has not to date been definitely settled, as is apparent, inter alia, from successive resolutions of the General Assembly of the United Nations.

33As regards the concept of the cessation of UNRWA’s protection or assistance, within the meaning of the second sentence of Article 12(1)(a) of Directive 2011/95, the Court notes that that provision corresponds, in substance, to Article 12(1)(a) of Directive 2004/83, with the result that the case-law concerning the latter provision is relevant to the interpretation of the former (see judgment of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin), C‑507/19, EU:C:2021:3, paragraph 37).

34In that regard, in the context of Directive 2004/83, the Court has indeed advised that the fact alone that the person concerned has departed from UNRWA’s area of operations cannot, regardless of the reasons for the departure, end the exclusion from refugee status laid down in the first sentence of Article 12(1)(a) of that directive and that, consequently, mere absence from such an area or a voluntary decision to leave it cannot be regarded as cessation of UNRWA’s assistance (see, to that effect, judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraphs 55 and 59).

35Nevertheless, that Court has held that, contrary to the position put forward by the Belgian Government in the context of the present reference for a preliminary ruling, the cessation of the protection or assistance provided by that organ or agency, such as UNRWA, can result not only from the abolition itself of that organ or agency, but also from the fact that it is impossible for that organ or agency to carry out its mission (see, to that effect, judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 56).

36If the person concerned has been forced to leave the UNRWA area of operation for reasons unconnected with that person’s will, such a situation may lead to a finding that the assistance from which that person benefited has ceased within the meaning of the second sentence of Article 12(1)(a) of Directive 2011/95 (see, by analogy, judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 59).

37That interpretation is consistent with the objective of the second sentence of Article 12(1)(a) of Directive 2011/95, which is, inter alia, to ensure that Palestine refugees, as such, continue to receive protection by affording them effective protection or assistance and not simply by guaranteeing the existence of a body or agency whose task is to provide such assistance or such protection until their position has been definitely settled in accordance with the relevant resolutions of the General Assembly of the United Nations (see, to that effect, judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraphs 60 and 62).

38It that context, the Court notes that, contrary to what is proposed by the Belgian and French Governments, in order to determine whether UNRWA’s protection or assistance has ceased, within the meaning of the second sentence of Article 12(1)(a) of Directive 2011/95, because a person who has applied for international protection has been forced to leave that agency’s area of operations, it is not necessary to establish that UNRWA or the State in whose territory it operates intended to inflict harm on that person or to deprive him or her of assistance, by act or omission. It is sufficient to establish that UNRWA’s assistance or protection has in fact ceased for any reason, with the result that that agency 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 (see, to that effect, judgment of 3 March 2022, Secretary of State for the Home Department (Refugee status of a stateless person of Palestinian origin), C‑349/20, EU:C:2022:151, paragraph 72).

39In that regard it is clear, inter alia, from Resolution No 74/83 that UNRWA is providing health assistance to Palestine refugees because, since their position is yet to be definitely settled, as was pointed out in paragraph 32 of the present judgment, they continue to require aid to meet basic health needs.

40Providing health assistance to Palestine refugees to meet their basic needs therefore forms part of the mission of UNRWA, with the result that if it becomes impossible for the latter, for any reason, to guarantee that health assistance, UNRWA’s assistance within the meaning of the second sentence of Article 12(1)(a) of Directive 2011/95 ceases also.

41In that regard, as the Advocate General held, in essence, in points 50, 61 and 62 of his Opinion, UNRWA’s mission in the field of health is to provide care and medication to meet the basic needs of the persons requiring UNRWA’s assistance, whatever the nature of the care or medication needed for those purposes. That mission cannot therefore be dependent on its operational capacity to provide such care and medication.

42As the Commission observed, the interpretation proposed by the Belgian and French Governments, according to which, where specific assistance is not provided by UNRWA, such provision must be regarded as falling outside of the mission of UNRWA, with the result that the failure to provide the assistance cannot mean that that agency has ceased to provide assistance, would be tantamount to limiting the concept of UNRWA’s ‘mission’ solely to assistance actually provided by UNRWA to the exclusion of assistance that, despite falling within the mandate of that agency, has not been given due to, inter alia, budgetary constraints. Such an interpretation would put interested persons at risk of being unable, in practical terms, to benefit from any effective international protection taking into account, first, the limitations of UNRWA and, second, their being excluded, in principle, from having refugee status.

43That said, the fact that it is impossible to provide specific care or treatment does not, in itself, substantiate the conclusion that UNRWA’s protection or assistance has ceased, within the meaning of the second sentence of Article 12(1)(a) of Directive 2011/95.

44According to case-law, in order to be able to find that UNRWA’s protection or assistance has ceased and, consequently, that the person concerned has been forced to leave the area of operation of that agency, that person’s personal safety must be at serious risk and it must be impossible for that agency to guarantee that that person’s living conditions in that area will be commensurate with the mission entrusted to that agency (judgment of 19 December 2012, Abed El Karem El Kott and Others, C‑364/11, EU:C:2012:826, paragraph 63).

45It follows from the foregoing that, first, the fact that the healthcare guaranteed by UNRWA is inferior to that from which a person could enjoy if he or she were granted refugee status in a Member State is not sufficient to conclude that that person has been forced to leave UNRWA’s area of operation.

46Second, as the Advocate General proposed, in essence, in points 80 and 81 of his Opinion, a stateless person of Palestinian origin must be regarded as having been forced to leave that area in cases where the fact that UNRWA is unable to provide the care necessary for his or her state of heath means that that stateless person is exposed to a real risk of imminent death or to a real risk of suffering a serious, rapid and irreversible decline in his or her state of health or a significant reduction in life expectancy.

47It is for the national court to examine whether there is such a risk on the basis of an assessment, on an individual basis, of all the relevant evidence (see, to that effect, judgment of 3 March 2022, Secretary of State for the Home Department (Refugee status of a stateless person of Palestinian origin), C‑349/20, EU:C:2022:151, paragraph 50 and the case-law cited).

48In the light of the foregoing, the answer to the questions referred is that the second sentence of Article 12(1)(a) of Directive 2011/95 must be interpreted as meaning that UNRWA’s protection or assistance must be regarded as having ceased when that agency becomes unable to ensure that a stateless person of Palestinian origin enjoying such protection or assistance has access to the healthcare and medical treatment without which that person is exposed to a real risk of imminent death or to a real risk of suffering a serious, rapid and irreversible decline in his or her state of health or a significant reduction in life expectancy. It is for the national court to ascertain whether there is such a risk.

Costs

49Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fourth Chamber) hereby rules: The second sentence of Article 12(1)(a) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection grantedmust be interpreted as meaning that the protection or assistance of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) must be regarded as having ceased when that agency becomes unable to ensure that a stateless person of Palestinian origin enjoying such protection or assistance has access to the healthcare and medical treatment without which that person is exposed to a real risk of imminent death or to a real risk of suffering a serious, rapid and irreversible decline in his or her state of health or a significant reduction in life expectancy. It is for the national court to ascertain whether there is such a risk.