Briefing: Article 1D of the Refugee Convention and Palestinian refugees

Immigration lawyers tend to have a good grasp of the definition of a refugee. We can confidently recite the “well-founded fear” definition at Article 1(A)(2) of the 1951 UN Convention on the Status of Refugees (the “Refugee Convention”) which, if met, can lead our clients to a grant of refugee status.

Article 1D and its meaning are less familiar. But understanding Article 1D is essential if you find yourself representing Palestinian refugees. This group of refugees can be “excluded” from protection afforded by the Refugee Convention and have a special status. Practitioners are likely to start encountering more and more of these cases as a direct result of the ongoing conflict in Israel and the Palestinian territories, so it’s important to be aware that these cases are dealt with differently to other protection claims under the Convention.

Background

Palestine was placed under British administration in 1922 by the Council of the League of Nations. Increasing Jewish migration to the region led to tension between the Jewish and Palestinian Arab communities, with frequent violent outbreaks and little political cooperation.

In 1947 the United Nations recommended that Palestine be partitioned into two: an independent Arab territory and an independent Jewish territory. As Britain withdrew from Palestine and the Israeli declaration of independence followed on 14 May 1948, civil war between the two communities broke out. By the time the war ended in July 1949, Israel controlled over three quarters of the territory and around 750,000 Palestinian Arabs had been displaced.

The United Nations Relief and Works Agency for Palestinians in the Near East (UNRWA) was set up to provide humanitarian relief to those affected by war. Subsequent United Nations resolutions specified that Palestinians who were displaced by later conflicts (for example, the “Six Day War” in 1967 which led to an exodus of another half a million Palestinians) also fell within the mandate of UNRWA.

UNRWA continues to be active in the Middle East to this day. Its purpose is to provide protection and assistance to registered Palestinian refugees within the Occupied Palestinian Territories (the Gaza Strip (“Gaza”), the West Bank and East Jerusalem), Jordan, Syria, and Lebanon. It provides services such as primary and vocational education, health care, relief and social services, infrastructure and camp improvement, microfinance and emergency response, including in situations of armed conflict. There are now nearly six million Palestinian refugees falling within the expanded mandate of UNRWA.

Palestinians displaced by the conflict were recognised as refugees by the United Nations. But the vast majority who fled in 1948 and their descendants remain stateless in law. There is no independent state of Palestine and therefore no such thing, in legal terms, as Palestinian nationality. 

Article 1D

Article 1D of the Refugee Convention states:

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.

While commonly referred to as an “exclusion clause”, Guy Goodwin Gill – one of the leading refugee law scholars – calls it a “deferred inclusion clause” as it has both exclusionary and inclusionary aspects.

The first paragraph excludes certain people from relying on the normal benefits of the Refugee Convention. A person to whom the first part of Article 1D applies cannot claim refugee status in a third country such as the UK. However, the second paragraph provides that if such a person stops receiving the specified protection or assistance, they do then benefit from refugee status.

To whom does Article 1D apply?

The obvious question on reading the first part of Article 1D is: which organs or agencies of the United Nations are being referred to? Who is Article 1D aimed at?

We can find out exactly what the drafters of Article 1D intended by looking at the travaux préparatoires (“preparatory works”) to the Refugee Convention. These documents are the notes and minutes from the meetings at which the text of the Refugee Convention was debated and agreed. It becomes immediately clear that Article 1D was all about Palestinian refugees and the organs and agencies referred to were the United Nations Relief for Palestine Refugees (UNRPR), the United Nations Conciliation Commission for Palestine (UNCCP) and the UNRWA.

The UNRPR operated from 1948 to 1950, then was replaced by the UNRWA. And while the UNCCP officially still exists, its funding was terminated in 1952. Therefore, the relevant agency for today’s Palestinian refugees is the UNRWA.

Interpretation of Article 1D

The scope and interpretation of Article 1D has proven controversial and this matters considerably to Palestinians who leave UNRWA-supported areas. It is particularly relevant now to those who were in receipt of UNRWA support in Gaza. The courts have sought to clarify its meaning and as a result, it offers some level of protection to Palestinian refugees with a number of restrictions. This affects the ability of some to obtain protection in a host state.

“At present receiving”

Does “at present” refer to the moment in time at which the Refugee Convention was adopted? Or is it forward-looking in the sense that it applies today when a person is being assessed to see if they qualify for refugee status?

Academic opinion has been divided on this question but the modern consensus is that “at present” includes all Palestinian refugees alive today who are receiving assistance from UNRWA. This does not just mean the original Palestinian refugees who fled the conflict in 1948-49, but also their descendants and any Palestinian refugees who fled subsequent conflicts and their descendants as well. This interpretation was confirmed in C‑31/09 Nawras Bolbol v Hungary.

“Ceased for any reason”

What happens when protection or assistance is no longer available?

In C364/11 Mostafa Abed El Karem El Kott and others v Hungary the Court of Justice of the European Union (“CJEU”) considered the cases of three Palestinian refugees from different UNRWA-administered refugee camps in Lebanon. They had fled due to violence arguably amounting to persecution. In all three cases the applicants were still entitled to UNRWA protection and assistance but argued that they qualified for refugee status automatically because access to protection and assistance had ceased for them personally.

The court found that protection or assistance provided by UNRWA could cease in individual cases even if the agency continued to exist as an institution. However, if a Palestinian refugee voluntarily left the area and protection or assistance was still available, the assistance cannot be said to have ceased.

The more recent case of C-349/20 NB and AB v Secretary of State for the Home Department concerned a Palestinian child with severe disabilities who had applied for protection in the UK alongside his mother. They had been living in Al-Bass refugee camp in Lebanon where the child was unable to access adequate medical treatment, therapeutic care and education, and faced severe discrimination. Their claim for asylum was refused. On appeal to the First-tier Tribunal, the tribunal referred four questions on interpretation to the CJEU.

One of those questions related to the interpretation of “has ceased”. Should this assessment be based solely on the circumstances that existed at the time an applicant leaves a UNRWA camp? Or should it be based on whether an applicant would be able to access adequate protection and assistance from UNRWA at the date of the decision of their protection claim? It was determined that the assessment should take into account both “the circumstances as they exist… at the time of that person’s departure from the UNRWA area of operations” and the circumstances at the time that the application for asylum is determined.

Although caselaw of the CJEU is not binding, it is still influential, in that it shows how other courts are interpreting the same provisions. After the preliminary ruling from the CJEU in NB and AB, the First-tier Tribunal accepted that UNRWA’s protection and assistance had ceased before the appellants left Lebanon, and the Home Office had not argued that they could return to Lebanon due to a positive change in country conditions since they left.

“Ipso facto”

“Ipso facto” means “by that very fact”; when protection and assistance from UNRWA ceases, a Palestinian refugee is automatically entitled to the benefits of the Refugee Convention. This means the protections at Articles 2 to 34, such as the right to work, to welfare benefits, to education, to non-expulsion and to non-refoulement.

Palestinians are already recognised as refugees by the international community (General Assembly Resolution 194) and no separate assessment of their status is required. Therefore, they qualify for refugee status automatically subject to the cessation and exclusion clauses (Articles 1C, 1E and 1F).

To put it another way, this is an alternative to the normal well-founded fear route to refugee status under Article 1A; a Palestinian refugee to whom the second part of Article 1D applies need not show a well-founded fear of being persecuted, and so on.

Advising Palestinian refugees in the UK

If advising a Palestinian refugee today who has managed to reach the UK, the key question is therefore likely to be whether UNRWA protection or assistance has ceased in their case. If it can be shown that it has ceased, then the person concerned is entitled to refugee status without any assessment of well-founded fear, etc.

Since the outbreak of the Israel-Hamas conflict in October 2023, over 1.5 million people have been forcibly displaced inside Gaza and to further afield. Blockades have meant humanitarian aid has been prevented from reaching those in need. On 13 October 2023, UNRWA Commissioner-General Philippe Lazzarini described what was unfolding in the Gaza Strip as an “unprecedented humanitarian catastrophe” and, crucially, that UNRWA was “no longer able to provide humanitarian assistance.” This statement is likely to prove important for many Palestinians who manage to flee Gaza and claim protection in third countries; if UNRWA in Gaza is unable to provide protection and assistance in that area, it can be argued that those people should ipso facto be entitled to the benefits of the Convention.

Free Movement is aware of a handful of appeals that have been successful since the outbreak of the conflict. The appellants, who were registered with UNRWA, have been recognised as refugees in the UK under the deferred inclusion clause because they were not able to access support from UNRWA.

A UNHCR note on the Interpretation of Article 1D lists objective reasons for when protection or assistance of UNRWA should be found to have ceased. These are reflected in the Home Office caseworker guidance which states:

threats to life, physical integrity or security or freedom, or other serious protection related reasons, including:

– situations such as armed conflict or other situations of serious violence, unrest and insecurity, or events seriously disturbing public order

– more individualised threats or protection risks such as sexual and/or gender-based violence, human trafficking and exploitation, torture, inhuman or degrading treatment or punishment, severe discrimination, or arbitrary arrest or detention

practical, legal and/or safety barriers, including:

– being unable to access UNRWA assistance because of long-term border closures, road blocks or closed transport routes

– absence of documentation to travel to, or transit, or to re-enter and reside, or where the authorities in the receiving country refuse their re-admission or the renewal of their travel documents

– serious dangers such as minefields, factional fighting, shifting war fronts, banditry or a real risk of other forms of violence or exploitation

UNRWA has faced severe problems in providing protection and assistance to the millions of Palestinian refugees. Funding was never really adequate for the task and has been severely cut in recent years. See for example AD (Palestine) [2015] NZIPT 800693:

Given the long-standing and continuing reality of funding deficits, should UNRWA continue to exist but in fact be unable to provide effective protection or assistance due to a lack of funding, there is no reason in principle why this should also not qualify as a cessation of activities under Article 1D, which expressly contemplates cessation “for any reason” as activating the inclusion clause. The temporary suspension of Palestine refugees from the Refugee Convention was predicated on the provision of assistance. It is entirely in keeping with the intention of the drafters that the inability of UNRWA to provide assistance due to financial constraints should be regarded as constituting a de facto cessation by an absence of effective protection or assistance.

As confirmed in El Kott, “protection and assistance” will be found to have ceased where it is “impossible for [UNRWA] to guarantee that his living conditions in that area will be commensurate with the mission entrusted to that agency”. It is without a doubt that Palestinians living in Gaza (and to an extent, the West Bank) are currently exposed to threats to life, physical integrity, security and freedom. And since UNRWA has declared it is unable to fulfil its mission in the region, there are strong arguments to be made that Palestinians arriving in the UK and seeking protection, who were registered as living in Gaza (and possibly also the West Bank) should be entitled to Convention protection.

This article was first published on 10 November 2022. It has been updated in light of the UNRWA Commissioner-General’s statement and the humanitarian crisis in Gaza.