Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention and the 1954 Stateless Convention

 The 1951 Convention relating to the Status of Refugees (1951 Convention) provides Palestinian refugees seeking protection in third countries with the right to” ipso facto” refugee recognition under certain circumstances (Article 1D). The 1954 Convention relating to the Status of Stateless Persons (1954 Stateless Convention) also provides Palestinian refugees with a right to protection, based on their status as stateless persons. BADIL is currently conducting research on national practice with a view to analysing whether Palestinian refugees are granted those rights. This article presents the initial findings of the ongoing research.

To date, research has been completed on 20 countries: Australia, Canada, Mexico and United States and 16 European countries: Belgium, Croatia, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Latvia, Netherlands, Poland, Portugal, Sweden, Switzerland, United Kingdom. Four of these countries (Croatia, Estonia, Iceland and Portugal) had no Palestinian asylum seekers, and one, Latvia, had only one case leaving 15 countries which have been researched in detail.

Article 1D of the 1951 Convention

Article 1D refers to Palestinians who became in refugees (sui generis)following the creation of the State of Israel in 1948 or the subsequent 1967 Arab-Israeli war, as well as their descendants. Article 1D (see box) contains an exclusion clause (paragraph one) and an inclusion clause (paragraph two). The exclusion clause stipulates that as long as the refugees receive protection or assistance from agencies of the United Nations, they shall not fall within the scope of the 1951 Convention. Palestinian refugees who live in UNRWA’s area of operations and receive assistance from the Agency are therefore not entitled according to current UNHCR practice to the benefits of the 1951 Convention. The inclusion clause stipulates that once “such protection or assistance has ceased for any reason”, the refugees become entitled to those benefits provided that Article 1C, 1E and 1F (i.e., cessation clauses) are not applicable.

UNHCR has published guidelines on the proper interpretation of Article 1D.(¹) The Refugee agency noted with regard to the inclusion clause that:

“If, however, the person is outside UNRWA’s area of operations, he or she no longer enjoys the protection or assistance of UNRWA and therefore falls within paragraph 2 of Article 1D, providing of course that Article 1C, 1E and 1F do not apply. Such a person is automatically entitled to the benefits of the 1951 Convention and falls within the competence of UNHCR” (paragraph 7).

UNHCR recognises that Article 1D ensures the continuity of protection of Palestinian refugees by providing them with ipso facto or prima facie recognition of refugee status once they leave UNRWA’s area of operations provided that Article 1C, 1E and 1F are not applicable. Palestinian refugees do not need to prove individual persecution in order to be protected under the 1951 Convention (i.e., fulfil the criteria set out in Article 1A(2) of the 1951 Convention).(²) The Note does not recommend whether national authorities should granted Palestinian refugees protection in their own countries (e.g., in the form of asylum or a complementary form of protection on humanitarian or other grounds) or return them to their country of former habitual residence. That is a matter for the national authorities to decide according to national legislation.

If, however, national authorities decide to return a Palestinian refugee to his or her country of former habitual residence, return should only be carried out if the refugee is ensured “effective protection” in that country. The level of protection available in the country is a matter of assessment by national authorities. According to UNHCR’s guidelines on “effective protection”(³), the following elements, inter alia, are critical factors for the appreciation of “effective protection”:the person has no well-founded fear of persecution in the third State on any of the 1951 Convention grounds; there will be respect for fundamental human rights in the third State in accordance with applicable international standards; the third State has explicitly agreed to readmit the person as an asylum-seeker or, as the case may be, a refugee; and, the person has access to means of subsistence sufficient to maintain an adequate standard of living.

If, for example, as it often happens, the country of former habitual residence will not accept to readmit a former Palestinian resident, then he or she should, according to UNHCR, be granted the benefits of the 1951 Convention in the country of asylum.

National Practice

The following section provides a review of selected national practice. A complete review will be available in the forthcoming Handbook.

Australia: Australian authorities and courts have consistently rejected that Article 1D contains an inclusion clause which would automatically confer refugee status upon Palestinian refugees. The second paragraph simply entitles Palestinians to apply for recognition of refugee status under the criteria set out in Article 1A(2) of the 1951 Convention, if they are not excluded to do so by the exclusion clause of Article 1D. The interpretation of that clause has been a source of ongoing debate. The leading case is Waqb (November 2002) in which the Full Federal Court (three judges) concluded that Article 1D referred to a class of persons and not to individual persons. The central issue would therefore not be whether a Palestinian was actually receiving protection or assistance, but rather whether that person was within the class of persons to which Article 1D applies, that is to say the class of persons who are at present receiving assistance or protection from an agency of the United Nations.

This “class of persons” approach to interpreting Article 1D has been followed by the Refugee Review Tribunal in subsequent cases. The three judges disagreed, however, when it came to determination of when the exclusion clause is no longer applicable (i.e., the wording of the second paragraph “when such protection or assistance has ceased for any reason []”). One judge concluded that given the inability of UNCCP to carry out its mandate, it would be a question whether UNCCP had provided protection at the time of the ratification of the 1951 Convention. The two other judges disagreed by stating that the question to be answered was not whether UNCCP had, as a matter of fact, provided protection, but whether the protection provided by UNCCP had ceased. The implications of cessation of UNCCP’s protection would be that the exclusion clause was not applicable and that the Palestinian asylum seeker therefore would be entitled to apply for asylum. This question was sent back to the Refugee Review Tribunal.(⁴)

Detention is used pending return of unsuccessful asylum seekers to their country of former habitual residence and when asylum seekers enter Australia illegally. A Kuwaiti-born Palestinian asylum seeker, Mr. Aladdin Sisalem was detained for ten months on the off-shore detention centre on Papua New Guinea’s Manus Island. In December 2002, he arrived in Saibai Island in the northern part of Australia, so he was inside the Australian migration zone when he applied for refugee status. According to the authorities, however, he did not properly apply for refugee status while on Australian soil because he did not ask for a form X. They then put him on a plane and sent him off to Manus Island. He was released in June this year and granted a five-year humanitarian visa following a request by UNHCR.

Although Australia has signed and ratified the 1954 Stateless Convention, the convention has not been incorporated into domestic law. So Palestinian refugees enjoy no protection under that convention.

Denmark: Palestinians from Lebanon are recognised as refugees in Denmark. The essential question in such cases is whether the applicant can obtain the necessary protection in Lebanon. If the Danish authorities find that Lebanon cannot offer the necessary protection, Denmark is obliged to grant protection and a residence permit to the asylum seeker.

According to the practice by the Danish Refugee Board, three criteria have to be fulfilled to establish the necessary level of protection: 1) It should be feasible for the Palestinian refugee to return in a legal manner to Lebanon; 2) His or her future continued stay in Lebanon should be legal; and, 3) The prospects are that the refugee is able to “continue living in peace in such a way that his or her personal integrity is protected”.

The Refugee Board has stated that the threshold for establishing that Lebanon cannot offer adequate protection and serve as a “country of first asylum” is in principle lower than the threshold for establishing persecution under Article 1A(2). Moreover, the burden of proof to establish “necessary protection” lies with the Danish authorities, whereas the burden of proof in cases examined under Article 1A lies with the applicant. Palestinians from other countries are recognised as refugees if they fulfil the criteria set out in Article 1A(2).

Finland: The leading case on Article 1D is the decision by the Supreme Administrative Court of 31 October 2002.(⁵) The case involved a Palestinian refugee from Lebanon who had been receiving assistance from UNRWA. The Court stated that although the Finnish Aliens Act does not contain provisions specific for Palestinians, such provisions are contained in the 1951 Convention and they may be applied in an asylum case because Finland is bound by the 1951 Convention. The Court concluded that Article 1D was applicable in the case because the applicant was a stateless Palestinian registered with UNRWA in Lebanon. The Court then analysed whether the applicant could return to Lebanon stating that:

“According to the available information there are no legal obstacles to A´s return. Upon return to Lebanon he can benefit further from the possibilities of resorting to the assistance of UNRWA. Therefore it does not follow from the rules of Article 1D that A would in this respect directly, pursuant to Article 1D, enjoy the benefits of the 1951 Geneva Convention”.

“[] [T]here have been no such reasons relating to A´s security or basic livelihood shown in the case that would hinder him from returning to his country of habitual residence Lebanon. Therefore it cannot be considered in this respect that his possibilities to further receive assistance from UNRWA have ceased as meant in Article 1D paragraph 2. Based on the above mentioned reasons A does not have ipso facto a right to the benefits granted in the 1951 Geneva Convention [].”

The Court’s argumentation appears to follow UNHCR’s guidelines from October 2002, although it would have been more correct to say that the refugee was entitled to the benefits of the 1951 Convention, but that fact did not mean that he could not be returned to Lebanon.

France: The French authorities have concluded that Article 1D, second paragraph, is applicable only when UNRWA stops its functions. As long as UNRWA exists, Palestinian refugees may obtain asylum only if they fulfil the criteria of Article 1A(2). Palestinians have been recognised as stateless persons and are granted the benefits of the 1954 Stateless Convention.

Germany: There is elaborate case law on Article 1D with a precedent-setting ruling by the Federal Administrative Court in Berlin from 4 June 1991.(⁶) The Court concluded that Article 1D contains an inclusion clause, so that Palestinian refugees may qualify as refugees on the basis of that clause independently of Article 1A(2). However, refugees should not, in the view of the Court, have the option of voluntarily relinquishing UNRWA’s regime (“freiwilligen Aufgabe der UNRWA-Betreuung”) and replacing it with the benefits of the 1951 Convention. As Palestinian refugees were primarily referred to UNRWA’s regime, the inclusion clause would not “kick in” if a refugee leaves UNRWA’s area of operations solely with the intention of replacing UNRWA’s assistance with the benefits of the 1951 Convention.

Subsequent jurisprudence has confirmed how difficult it is for Palestinian refugees to establish that they did not voluntarily relinquish UNRWA’s assistance. Due to this restrictive interpretation of Article 1D, few Palestinians have been recognised as refugees on the basis of Article 1D. Most Palestinians only have a chance to be recognised as refugees on the basis of Article 1A(2) of the 1951 Convention. The possibility for Palestinian refugees to be recognised as refugees has been further limited by Federal Court’s restrictive interpretation of the term “country of former habitual residence” (Article 1A(2)). The Court has concluded that a state ceases to be such a country for a Palestinian asylum seeker if that person is expelled from the country or denied re-entry to the country, unless in the case of denial of re-entry it is based upon reasons related specifically to that person and, hence, not upon general population policies. The consequence is that as there is no country of former habitual residence against which the level of persecution can be assessed, the asylum seeker cannot not be recognised as a refugee.

It often impossible for German authorities to return rejected Palestinian asylum seekers who are stateless because no country would accept them. Such refugees are granted a so-called tolerance permit (“Duldung”). This permit does not convey any real legal status, since it only means that Germany agrees not to implement a deportation order which, nevertheless, remains valid. Legalisation of the stay in Germany for a holder of such a permit is possible under certain circumstances and after prolonged residence in Germany, but such decision is up to the discretion of the authorities. In many cases, the authorities have dismissed requests for legalisation of stay even after years of residence in Germany with the justification that the applicant had not taken sufficient action to overcome the impediments to his or her departure.

Some Palestinians have been recognised as stateless persons and granted the benefits of the 1954 Stateless Convention. However, they have to establish that UNRWA’s assistance is no longer available (Article 1(2)(i)) and that they are staying legally in Germany (Palestinians with toleration permit have faced difficulties fulfilling this condition).

The Netherlands: The Minister of Alien Affairs and Integration has issued a circular regarding Palestinian refugees (Aliens circular C1/4.2.2. as amended by circular TBV 2003/11 of 24 April 2003) providing that: “Whenever a Palestinian is no longer present in the mandate area of UNRWA, the exclusion clause of Article 1D of the Refugee Convention ceases to be applicable and the Refugee Convention is again applicable. This however does not mean that a residence permit should automatically be granted. After all, the concerned person is expected to return to this mandate area of the aim of re-invoking the protection of UNRWA. This will only be different if the alien can make plausible that he cannot return to UNRWA area because he has well-founded fear of persecution within the UNRWA mandate area, and cannot invoke UNRWA protection against that. In that circumstance, the alien can be granted a temporary residence permit for asylum under Article 29 (1) (a) []”. The authorities thus assume that UNRWA has a protection mandate. However, the Court of Appeal has concluded (decision of 2 April 2003) that the authorities should analyse on a case-by-case basis whether UNRWA is capable of providing protection to the refugees.

Sweden: Palestinian asylum seekers who are registered with UNRWA cannot justify their claims for asylum under Article 1D because as long as they are asylum seekers their UNRWA assistance is deemed not to have “ceased”. Article 1D becomes applicable once asylum seekers are granted permanent residence permit entitling them to the benefits of the 1951 Convention. Palestinians from Gaza and the West Bank are currently granted residence permit on humanitarian grounds. Palestinians from Lebanon have also been granted residence permit on humanitarian grounds on a case-by-case basis.

Several stateless Palestinians from the Gulf States (many who came from Gaza originally or whose fathers originally came from Gaza), such as Saudi Arabia and the United Arab Emirates, have been denied asylum and requested to return to the country in which they lived before arriving in Sweden. However, according to the authorities in Saudi Arabia and the United Arab Emirates these refugees are not allowed to return if they have stayed longer than six months in Sweden. If they want to return thereafter, they must re-apply for a residence permit which they can only obtain if they have a new “sponsor” (employer). As it is almost impossible for these Palestinians to get a job in their former country of residence while living in Sweden, they are often not able to return. Such people often have to wait years before the authorities would grant them permission to stay in Sweden.

United Kingdom: Article 1D is relevant only to persons who were receiving protection or assistance from UNRWA on the date on which the 1951 Convention was signed (28 July 1991). It is not relevant to anyone else, not even to the descendants of people who were receiving such protection or assistance. When Article 1D is applicable, the applicant is excluded from the scope of the 1951 Convention for so long as UNRWA continues to operate and, hence, is excluded from applying for asylum under Article 1A(2). This interpretation of Article 1D was adopted by the Supreme Court of Judicature Court of Appeal (Civil Division) in London on 26 July 2002 (the case of Amer Muhammad El-Ali v. The Secretary of State for Home Department and Daraz v. The Secretary of State for Home Department).

Conclusion

In summary, research shows a strong diversity in interpretation and state practice of the 1951 Convention, largely to the detriment of Palestinian refugees. The new 2002 UNHCR Note on the Applicability of Article 1D of the 1951 Convention to Palestinian Refugees (⁷) appears have not (yet) impacted jurisprudence and/or state practice. Once denied asylum, other forms of protection are available for Palestinian refugees in very few countries only and return of Palestinian refugees to countries of former residence becomes a matter for the police. Yet many refugees have nowhere to be returned to. Subsequent legalization of their presence then becomes the major problem, involving lengthy procedures and much hardship for the refugees.

Different protection gaps have been identified in the 15 cases of national practice reviewed for this article (not all cases are included in the above examples):
The “ipso facto” language of Article 1D is not implemented in any of the countries, apart from Finland.
Article 1D is interpreted in at least nine different ways by national authorities.
Article 1D is not incorporated into national legislation in some countries.
Palestinian refugees are not recognised as refugees unless they fulfil the criteria set out in Article 1A(2), apart from Denmark with regard to Palestinians from Lebanon and Finland.(⁸)
In at least one country, the possibility for Palestinian refugees to be recognised as refugees has been further limited by a restrictive interpretation of the notion “country of his former habitual residence”.
If complementary forms of protection are available for Palestinian refugees who are not formally recognised as refugees, these forms of protection are often granted following a political decision.
In many countries, it is often impossible to return stateless Palestinian refugees who have received a final negative decision because the authorities in the country of former habitual residence will not accept re-entry. As they are stateless persons, they often have nowhere to go.
In some countries, Palestinians who cannot be returned are granted a form of temporary leave to remain. This does not convey any real legal status, since it only means a temporary suspension of the deportation order which, nevertheless, remains valid. Legalisation of this status is often cumbersome.
Palestinians have been recognised as stateless persons and granted the benefits of the 1954 Stateless Convention in only few countries.

Endnotes
(1) See, Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, page 26. The text of the UNHCR Note can be found at BADIL’s website: www.badil.org/Protection/Documents/Protect_Docs.htm. from October 2002, which was analysed by BADIL in al-Majdal issues 16&17 March 2003
(.2) For detailed analysis of Article 1D, see, Lex Takkenberg. The Status of Palestinians in International Law. Oxford: Oxford University Press, 1998; and Susan Akram and Guy Goodwin-Gill, Brief Amicus Curiae., available at BADIL’s website: www.badil.org/Publications/Other/Refugees/amicus.pdf
(3) See, Summary Conclusions on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and Asylum-Seekers, Lisbon Expert Roundtable 9 and 10 December 2002, published by Department of International Protection February 2003.
(4) See, summary of the judgement in al-Majdal Issues 16&17, March 2003, page 29.
(5) Case No. 2770, Annual Year Book Publication No. KHO 2002: 69, Diary No. 1866/3/02.
(6) Bundesverwaltungsgericht, Urteil vom 4.6.1991 – Bverwg 1 C 42.88., published in InfAuslR 10/91, 305.
(7) For a summary of the decision, see al-Majdal, issues 16&17, March 2003, page 29.
(8) In Germany, Palestinians may also be recognised under Article 1D, but due to the courts’ restrictive interpretation of Article 1D most Palestinians only have a chance to be recognised as refugees on the basis of Article 1A(2).

Elna Sondergaard is a Legal Consultant with BADIL.