X, of Palestinian origin, has been rejected international protection based on the exclusion ground contained by Article 1D Geneva Convention. He contested the decision and invoked that UNRWA protection has ceased in the Gaza Strip.
The Council has analysed the case in accordance with the CJEU caselaw, namely EL Kott in order to determine if UNRWA assistance has ceased. The applicant requested an oral hearing which was held on 9 March 2021 when he claimed that UNRWA is not able to offer effective assistance in Gaza and submitted recent statements, including from the UN General Assembly.
Based on recent country of origin information (COI Focus of 1st February 2021), CALL held that despite the information available on its website and that it continues to offer services, UNRWA faced significant budgetary cuts that lead to important reductions of expenses and realocation of ressources, all emasures having impacted the assistance provided, especially with regard to essential services, including medical treatment, basic food and financial assistance as weel as a safe and dignified living environment.
The CALL concluded that only minimal services are maintained by UNRWA in Gaza, that UNRWA is facing deteriorating working conditions, and is facing financial difficulties due also to the COVID-19 pandemic. The CALL ruled that UNRWA assistance ceased to be effective and its duration is impredictible.
The applicant was granted refugee status.
The CALL has previously ruled similarily in a case from 24 February and 25 February 2021.
X, Palestinian applicant, appealed against CGRS negative decision by which he was exluded from refugee protection based on Article 1 D of the Geneva Convention.
The CALL overturned the decision and granted refugee status by holding that UNRWA assistance has ceased to be effective in the Gaza strip and that COVID-19 pandemic is adding more difficulties. On the allegations raised by CGRS that an international conference will be held in April, that US will resume its financial support and an end of the pandemic would improve the situation in the future, the CALL stated that these events have no impact on the assessment of the case, which has to eb done based on the actual and current situation in that area, not on future improbable events.
The CALL also based its decision on the CJEU El Kott case.
Similar case was dealth with by the CALL on 24 February 2021 and 11 March 2021.
X, staleless Palestinian, appealed against a negative decision issued by the CGRS and invoked that UNRWA protection has ceased in the Gaza Strip.
The CALL assessed whether, in compliance with the CJEU caselaw, if an event directly concerning UNRWA can place the later generally in the impossibility of fulfilling its mandate for the Palestinian refugees under its assistance. The CGRS argued that UNRWA continues its activities, that the mandate was extended until 2023 and has not ceased to offer protection and assistance. On the contrary, based on recent country of origin information (COI Focus of 1st February 2021), CALL held that despite the information available on its website and that it continues to offer services, UNRWA faced significant budgetary cuts that lead to important reductions of expenses and realocation of ressources, all emasures having impacted the assistance provided, especially with regard to essential services, including medical treatment, basic food and financial assistance as weel as a safe and dignified living environment.
The CALL reiterated the interpretation made by the CJEU in El Kott with regard to the cessation of protection or assistance. Since the article 1 D of the Geneva Convention indicates that the cessation may intervene for any reason, the CALL estimated that along with teh financial difficuleties faced by UNRWA, the consequences of the COVID-19 pandemic have to be taken into consideration when evaluating if the assistance is still effective.
As it results from the documents submitted, the COVID-19 pandemic has a significant impact on the already financial difficult situation of UNRWA, thus teh current pandemic can not be excluded from the analysis since it affects so many countries in the world. The CALL held that the current cessation of UNRWA assistance is of an impredictible duration and no prediction can be made if it will improve in the future.
Consequently the CALL assessed that the fonctionning conditions of UNRWA have deteriorated to such a level that, even if officially it did not cease to be present in the Gaza Strip, however the difficulties it faces are of a serious nature and the Palestinian refugees cannot, in a general manner, rely on its assistance in this area of operations.
In the absence of other reasons for exclusion, refugee status was granted to the applicant.
The applicant, a Tunisian national, arrived in Italy on 4 November 2020. A refusal of entry was ordered against him and he was placed in detention, where he remained without a hearing for a month due to COVID-19 restrictions and although he declared that he was a minor. Following age assessment, he was released and brought to a reception centre. The applicant complained that his mobile phone was confiscated in Rome and he was unable to communicate with family members and with a legal counsel.
In this case the court held that the restriction of access to an applicant's mobile phone constitutes a limitation of the right to freedom of communication and it has no basis in the Italian Constitution. The limitation of communications with the outside world, which results from the impossibility of accessing the mobile phone, constitutes also a violation of the detainee's right to access legal safeguads. The Court ordered the Prefecture, the Milan Police Headquarters (questura) and the centre's managing authorithy to allow the applicant to use his mobile phone as provided by Article 7 of the Return Centres Regulation (Ministerial Regulation October 20, 2014) for organising visits inside the center, based on daily shifts, in respect of privacy and for a sufficient timeframe (at least 2 hours).
The applicant submitted a request for international protection in 2012 and declard that he was born in Benghaz/Libya and left the country with his faimily and moved to Egypt. Upon termination of his secondary studies, the applicant moved to Turkey, using a registration document for Palestinian refugees and a study visa for Turkey, visa which allegedly expired in 2003. Following the investigations on the case, the Turkish authorities submitted that the applicant was legally staying with a visa up until his departure in 2012.
His application for international protection was rejected by the Ministry, for not fulfilling the requireements for international protection and he appealed against.
The Court confirmed the Ministry decision and held that the credibility of the applicant can not be contested, having been proved that he is of Palestinian origin and he possesses a document issued by UNRWA. However, the Court did not find any evidence as for an impossibility for the applicant to return to his country of origin. Moreover, the Court found that the applicant disposes of a special status, being registered as Palestinian refugee with UNRWA and benefiting of its assistance and protection. The Court did not find any reason for inclusion as per application of Article 12 (1)(a) second sentence. The Court also cited the CJEU case El Kott in its analysis. Subsequently, the application was analysed for subsidiary protetcion but in the absence of any jusitification, the claim was also dismissed under this matter.
The applicant, Palestinian refugee from Syria, and who resided in the Al Yarmouk refugee camp, has received assistance from UNRWA in that camp, prior to leaving the country. He applied for international protection in Slovenia by invoking risk of death penalty upon return for refusal to perform military service for Syrian authorities and the security situation due to the war in Syria, when the refugee camps was attacked several times. The Ministry of Interior granted the applicant subsidiary protection, and the Court of First instance confirmed the decision, after having relied on the fact that the applicant enjoyed UNRWA assistance and protection prior to leaving Syria.
The applicant appealed before the Supreme Court which annulled the contested decision and ruled that the lower court erroneously held that the applicant was excluded from refugee protection. The Supreme Court mentioned the CJEU case Mostafa Abed El Karem El Kott, Chadi Amin A. Radi and Hazem Kamel Ismail vs Bevándorlási és Állampolgársági Hivatal (Hungarian Immigration and Asylum Office) where the CJEU stated that the second sentence of Article 12 (1) (a) of the Qualification Directive should be interpreted as meaning that the cessation of protection or assistance of a United Nations body or agency other than the United Nations High Commissioner for refugees, "for whatever reason" also applies to the situation of a person who, after actually receiving this protection or assistance, ceases to receive it for a reason beyond his control and which does not depend on his will.
Consequently, the Supreme Court held that the facts were wrongly established in this case and that the determining authority should have established whether the applicant was forced to leave the UNRWA area of operations for his own safety and if UNRWA is still bale to offer assistance in accordance with its mandate in the Al Yarmouk refugee camp area. The Supreme Court referred the case back with clear guidance to analyse whether the condition relating to the cessation of protection or assistance within the meaning of the second sentence of Article 12 (1) (a) of the Qualification Directive is fulfilled, and if so, to grant refugee status within the meaning of Article 2 (c) of the Directive.
N.B.: The Supreme Court ruled similarly in another case, judgement of 14 February 2014.
The applicant applied for international protection on 13 January 2010, claiming to be a minor from Zimbabwe and by decision of 29 September 2010 the Federal Office for Asylum rejected the application as unfounded. Upon appeal, the Court of Asylum referred the matter back to the Federal Asylum Office for a new hearing and assessment. On 17 November 2011, the Federal Asylum Office rejected again the application, after having found also that the applicant was from Nigeria and ordered the return. A new appeal was lodged and rejected subsequently by Court of Asylum. In 2014 the applicant was sentenced to 15 months imprisonment for drug offence and in 2018 he was arrested for suspicion to have committed a drug offence and remained in custody till 14 January 2018. On 2 February 2018, the Nigerian embassy in Vienna issued a certificate of return. On 28 May 2018, the applicant was sentenced to 3 years and half imprisonment, and by letter of 21 November 2019 the applicant was informed that, due to his criminal conviction, a return order was to be issued and an unlimited entry ban, without setting a period for voluntary return.
The applicant contested the decision before the Federal Administrative Court which dismissed it as unfounded. The Court held, after thorough analysis of the situation in Nigeria, that the return of the applicant does not expose him to any threat and there is no evidence that rejected asylum applicants would state repression. Moreover, drug offenders are not likely to a second conviction and international actors are working to set up new returnee and migration counselling centres. The applicant did not claim any reason to be issued a residence permit of special protection and in addition, his conviction for drug offence in 2014 and 2018 demonstrates that he poses a threat to the public security and justifies the unlimited entry ban as well as because the Federal Administrative Court did not find any argument to suggest that the return would cause a violation of art. 8 ECHR.
The Federal Administrative Court mentions, inter alia, EASO - Country Guidance: Nigeria, EASO - Country of Origin Information Report - Nigeria - Security Situation, EASO – Country of Origin Information report – Nigeria – Targeting of individuals and EASO Country of Origin Information Report Nigeria Country Focus.
MM and F, nationals of Pakistan, applied for international protection on 4 October 2015, but it was rejected and the Federal Administrative Court confirmed it by decision of 22 October 2018, jointly with the issuance of a return order against the applicants. A subsequent application was submitted from detention centre by the second applicant, on 3 March 2020. On 18 March 2020, the Federal Office for Foreign Affairs and Asylum conducted the interview remotely, by video-conference tools, and with the assistance of an interpreter, present at the Office and a legal representative, present at the detention centre. The report of the interview, with signatures of the present parties, was exchanged via electronical means.
On 20 March 2020, the decision to repeal the protection against deportation was notified to the applicant, with the assistance of an interpreter by video-conference, but the applicant was not present at the announcement done by using technical tools. The minutes of the communication by electronic means was transmitted also remotely to the applicant. The applicant contested the decision and invoked that according to legal provisions, only the interview can be done remotely, but the notification of decision by electronic means is deprived of legal basis. By decision of 25 March 2020, the appeal was admitted by the Federal Administrative Court which reiterated that an oral communication of a decision must be conducted by a formal announcement of its content to parties present. When a party is not present, the decision could not be promulgated in accordance with paragraph 62 (2) of the Asylum Law. In the present case, the applicant was not present to the communication by videoconference, thus the contested decision was not duly adopted. The Federal Administrative Court held that according to national legislation and to the case law of the Supreme Administrative Court, the possibility of communicating decisions by use of technical means of transmitting words and images sis not provided.
The Supreme Administrative Court rejected as inadmissible the appeal submitted by the Federal Office for Foreign Affairs and Asylum and confirmed the decision of the Federal Administrative Court from 25 March 2020.
According ELENA Legal weekly update:
"The case concerns G, an eight-year-old national of South Africa whose mother applied for international protection in the UK listing G as a dependent and whose father had brought international child abduction proceedings for under the Hague Convention the breach of his right to custody of his child.
In its analysis, the Supreme Court reiterated, inter alia, that under the 1951 Geneva Convention, the recognition of an of refugee status as a declaratory act. It emphasised that the obligation not to refoule an individual arises due to their circumstances meeting the definition of “refugee” rather than because of the recognition of a Contracting State that the definition is met. Despite this, the Court also highlighted that the Convention has not been incorporated into UK domestic law and instead, UK legislation has closely assimilated to the Convention.
The Court confirmed that an application for international protection made by a parent which includes a child should be considered as an application by the child “if objectively it can be understood as such”. It stated that it is inherently likely that any fear of persecution experienced by the parent will also apply to the child and that this understanding would protect the interests of the child. Secondly, the Court considered that the child applicant for international protection is protected from refoulement while the determination of an application for international protection is still pending and until such a determination is made, a return order under the 1980 Hague Convention cannot be implemented. Nevertheless, it further considered that, while a return is not enforceable, the proceedings under the Hague Convention should continue or at least not wait until the asylum claim has been determined"
The case concerned a request from the applicant for interim measures to be applied in the hypothetical situation of being ordered to leave the country, based on a potential risk of being subject to treatment contrary to Article 3 of the ECHR.
The court dismissed such request since no expulsion order has been issued against the applicant and it is not apparent from the case that he would be at risk of torture or inhuman or degrading treatment. The civil court concluded that there was no irremediable risk for the applicant and for interim measures to be adopted, there should be a prima facie case of a breach of a fundamental right.