Fahamu Refugee Legal Aid Newsletter

The Fahamu Refugee Legal Aid Newsletter is a monthly publication that focuses on the provision of refugee legal aid. It is aimed primarily to be a resource for legal aid providers in the Global South where law journals and other resources are hard to access. It complements the information portal
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The newsletter follows recent developments in the interpretation of refugee law; case law precedents from different constituencies; reports and helpful resources for refugee legal aid providers; and stories of struggle and success in refugee legal aid work.

Protected or excluded? A case study of the interpretation and implementation of Article 1D with regard to Palestinian asylum seekers

Evi Kyprioti and Guillaume Cliche-Rivard

Evi Kyprioti is a refugee law lawyer holding a Joint European Master’s Degree in International Humanitarian Action (Bochum, Germany and Dublin, Ireland). Guillaume Cliche-Rivard holds an M.A. in International Development and Emergency Practice (Oxford Brookes University) and a B.A. in international Law and international relations (Université du Québec à Montréal). They both volunteered at Refugee Law Project and International Refugee Rights Initiatives in Kampala regarding the invocation of the Cessation Clause on Rwandan refugees in Uganda.

The idea of this short article arose when a Palestinian sought advice at the Refugee Law Project (RLP) in Kampala, in autumn 2012. His claim had been rejected by the Office of Prime Minister Refugee Affairs Office on the basis of Article 1D of the 1951 Refugee Convention Relating to the Status of Refugees (1951 Convention). The article was inspired by his story and arose from the research we conducted on the issue of the interpretation of Article 1D and state practice regarding its implementation.

Introduction

The United Nations Relief and Work Agency (UNRWA) was established by United Nations General Assembly Resolution 302 (IV) in 1949, following the 1948 Arab-Israeli conflict with the aim of providing assistance and protection to Palestinian refugees in the Middle East. To date, UNRWA advocates and provides assistance for some 5 million Palestinians around Jordan, Lebanon, Gaza Strip, Syria and the West Bank (including East Jerusalem). Palestinian refugees residing in these countries or areas receive specific and special assistance in their country of exile. However, this excludes them from the protection of the 1951 Convention, as Article 1D states that the Convention shall not apply to persons who are already benefiting from the assistance of another organ or agency of the United Nations. The fact that UNRWA directly assists Palestinian refugees is considered to be a reason for them to be excluded from the rights and protection provided by the 1951 Convention.

However, according to the second paragraph of Article 1D, the exclusion is withdrawn when ‘such protection or assistance has ceased for any reason’. According to this provision, Palestinian refugees who do not fall under the territorial scope of UNRWA are entitled to the protection provided by the 1951 Convention.

Even though the wording of the provision seems clear, issues have arisen both with regards to its interpretation and, most importantly, its implementation. These issues are demonstrated by the following analysis of Article 1D which includes a short reference to state law, policy and practice, and focuses particularly on the case of Egypt, with regards to its implementation.

Interpretation of Article 1D of the 1951 Convention

Article 1D is applicable to Palestinians who are eligible to receive assistance from UNRWA, namely: a) persons whose normal residence was Palestine between 1 June 1946 and 15 May 1948 and who lost their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict – thus following UNRWA’s operational definition, and b) 1967-displaced persons, within the sense of UN General Assembly Resolution 2252 (ES-V) of 4 July 1967 and subsequent Resolutions, who have been unable to return to the occupied Palestinian territories. The descendants of people belonging to either of these groups are also entitled to UNRWA’s assistance.

According to the proper interpretation of Article 1D, every Palestinian refugee who falls under one of the above mentioned categories and is outside the area of operations of UNRWA is entitled to protection under the 1951 Convention. This interpretation is based first and foremost on the wording of the second paragraph of the Article, which refers to protection or assistance by other UN agencies that may have ceased for any reason. The historical context and the purpose of the provision also leads to the same conclusion. The reason why Palestinian refugees were subjected to special treatment was not because the drafters of the Convention considered them as undeserving of international protection; to the contrary, it was because they were perceived as deserving unique and specialised protection, and a prior protection regime was already in place for them at the time the Convention was being drafted.[1] As such, the aim of the provision was not to exclude them from the scope of the 1951 Convention but rather to ensure special and continuous protection for them. In fact, the second paragraph constitutes an inclusion clause for Palestinians.

UNHCR follows the same interpretation. According to its 2009 Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees,

Paragraph 2 of Article 1D contains an inclusion clause ensuring the ipso facto entitlement to the protection of the 1951 Convention of those refugees who, without having their position definitively settled in accordance with the relevant UN General Assembly resolutions, have ceased to receive protection or assistance from UNRWA for any reason. The 1951 Convention hence avoids overlapping competencies between UNRWA and UNHCR, and, in conjunction with UNHCR’s Statute, ensures the continuity of protection and assistance to Palestinian refugees as necessary.

Based on the wording, historical context and purpose of the provision, it concludes that certain Palestinians might fall under the scope of the 1951 Convention and that:

If […] the person is outside UNRWA’s area of operations, he or she is not “at present receiving from organs or agencies other than [UNHCR] protection and assistance” within the meaning of paragraph 1 of Article 1D, and therefore “such protection or assistance has ceased” within the meaning of paragraph 2 of Article 1D. The person is “ipso facto entitled to the benefits of the [1951] Convention”, provided of course that Articles 1C, 1E and 1F of the 1951 Convention do not apply. [emphasis added] This would be the case even if the person has never resided inside UNRWA’s area of operations.

Finally, it specifies that:

In the case of persons falling within paragraph 2 of Article 1D, no separate determination of well-founded fear under Article 1A(2) of the 1951 Convention is required to establish that such persons are entitled to the benefits of that Convention. [emphasis added]

State Practice

State law and practice demonstrate that the interpretation of Article 1D of the 1951 Convention presented above has been adopted by states in several circumstances. According to UNHCR statistics for 2011, approximately 94,150 refugees and people in refugee-like situations originated from Occupied Palestinian Territory. This figure, which includes refugees receiving international protection under UNHCR’s mandate, clearly demonstrates how providing asylum to Palestinians under the 1951 Convention is a well established practice.

In Spain, since 2005, authorities have accepted the application of the Article 1D for Palestinian refugees, which has been incorporated in Article 8.1.a) of the Spanish Asylum Law 2009, interpreting it as discussed above. Section 87(3) of Finland’s 2004 Aliens Act also provides that Palestinian refugees may be recognised as refugees under Article 1D without having to fulfill the criteria of Article 1A(2) of the 1951 Convention, unless they have ‘voluntarily relinquished’ the assistance provided by UNRWA.

In the United Kingdom[2] and Australia,[3] it has also been judged that Article 1D leads to automatic granting of refugee status, without determination under Article 1A. Furthermore, the European Court of Justice has judged that a person is considered to have received protection or assistance from an agency other than UNHCR, only when that person has actually availed himself or herself of that protection or assistance.[4]

Belgium’s Conseil du Contentieux des Étrangers has also accepted the implementation of the inclusion clause of Article 1D for the case of Palestinians who are outside UNRWA’s area of operations. However, according to its judgement, if the Palestinian asylum seeker can return to UNRWA’s area of operation and regain assistance or protection of this agency, s/he will not be recognised as a refugee on the basis of Article 1D[5]. The same application of Article 1D has also been accepted by courts in Hungary and Norway – and in the case of the latter, only for Palestinians from the Gaza Strip and West Bank.[6] Unfortunately, Norwegian policy seems to have gotten more restrictive since 2005.[7]

In the case of states that do not follow this approach, Palestinian refugees might still be eligible to receive alternative means of protection, either through granting complementary forms of protection based on humanitarian grounds or under the Statelessness Conventions. For example, the latter has been the case in Hungary,[8] Belgium[9] and France.[10]

Egypt, however, provides an interesting example of a state whose practice is reported not to be in compliance with the proposed interpretation of Article 1D, despite being a signatory of the 1951 Convention, officially bound by its provisions. According to Takkenberg, Egypt was ‘reluctant to become bound by the 1951 Convention, apparently out of a perceived conflict between the status favoured by the Arab League and that of the Convention’.[11] In the case of Palestinians, this reluctance is even more apparent. According to El-Abed, ‘given that the UNCCP’s ability to offer protection to Palestinians was weakened by its dual mandate, and because of the fact that the 1951 Convention continues in large part not to be applied to Palestinians, Palestinians have been left with no agency to protect their legal rights.’12]

The consequences of this attitude have a drastic impact on Palestinians, given that Egypt is a neighbouring country. Cairo’s 2007-2012 blockade of the Gaza Strip offers a typical example, as it made it extremely difficult for citizens of Gaza to reach the Egyptian territory. In 2007, Egypt closed its border with Gaza after Hamas took power in the Strip. On 28 May 2011, the border was reopened but men under 40 years old were prevented from crossing to Egypt; the border was fully reopened in 2012.[13]

Today, it remains unclear whether any international organisation or treaty protects Palestinians’ rights in Egypt. For example, even though Article 31 of the 1951 Convention prevents states from imposing penalties upon illegal entry, All Africa reported the expulsion of 26 Palestinians to the Gaza Strip for ‘entering the country illegally’ on 18 August 2012. On 6 September 2011, it was reported that three Palestinians who ‘entered the country through the tunnels in Gaza’ received the same treatment.[14]

In more general terms, Palestinians in Egypt have been reported to face significant discrimination. Since 1978, Palestinians in Egypt ‘do not receive assistance from the government of Egypt and do not have access to any of its public services.’[15] Moreover, ‘Palestinians who owned land [in Arab countries] were required by law to terminate their rights within five years or face seizure of the land by the government.’[16]

Conclusion

Under Article 1D of the 1951 Convention, Palestinians who are outside the area of operations of UNRWA, either voluntarily or involuntarily, and are either unable or unwilling to return, fall ipso facto under the scope of the 1951 Convention and are entitled to its protection. No further status determination is required under Article 1A of the Convention.

This interpretation of Article 1D is based on the wording, historical context and purpose of the provision, and has been adopted by UNHCR. However, state practice remains ambiguous as to its implementation on the national level. As the examples above demonstrate, in several circumstances it is fully implemented, and even incorporated into domestic law. In other states, it is only partly followed, but is often surpassed through the introduction of alternative protection schemes, based on either humanitarian or statelessness grounds. However, it is also fully ignored, such as in the case of Egypt. This leads to insecurity with regard to the legal status of Palestinian asylum seekers and jeopardises the protection of their internationally recognised rights, which should not be compromised under any circumstances.

______________________

[1] Akram, S., Palestinian refugees and their legal status: rights, politics and implications for a just solution, Journal of Palestine Studies, Vol. 31 (3), 2002.
[2] Case Islam El-Issa v. Secretary of State Home Office, Appeal No. CC/21836/2000, Home Office Reference No. Y76985.
[3] Case Minister for Immigration and Multicultural Affairs v. Wabq, [2002] FCAFC 329, Australia: Federal Court, 8 November 2002.
[4] Bolbol v. Bevándorlásiés Állampolgársági Hivatal, C-31/09, European Union: European Court of Justice, 17 June 2010.
[5] Conseil du Contentieux des Etrangers Judgments no. 37910, no. 37912 and no. 37913 of 29 January 2010 (Dutch-speaking chamber), and no. 43061 and 43062 of 6 May 2010 (French-speaking chamber4 February 2002
[6] Closing Protection Gap, Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention, BADIL Resource Center for Palestinian Residency and Refugee Rights, 2005.
[7] Ibid.
[8] See for example Cases No. 106-1-15398/2008, 106-4-4130/9/2008-L and 106-4-603/15/2010 under the Hungarian 2005 Aliens Act.
[9] A.M.M. c. Procureur Général près de la Cour d’appel de Bruxelles, C.06.0427.F/1, Cour de cassation, 22 January 2009.
[10] Case of 22 November 2006 (No 277373), OFPRA.
[11] Takkenberg, Lex, The Status of Palestinian Refugees in the International Law. Oxford, Clarendon Press, 1998.
[12] El-Abed, Oroub. ‘Palestinian Refugees in Egypt : What Exit Options Are Left for Them ?’, Refuge, Number 2, Volume 22, p. 15-30, pp. 18
[13] Al Jazeera, ‘Egypt Opens Rafah Border with Gaza’, 28 May 2011.
[14] All Africa, ‘Egypt Government Deports 26 Palestinians’, 18th August 2012; and Masress, ‘Egypt Deports Three Palestinians for Entering Egypt Illegally’, 06th September 2011. It is implied here that these individuals had requested asylum in Egypt.
[15] Op. cit., El-Abed, Oroub.
[16] Shiblak, Abbas. ‘Residency Status and Civil Rights of Palestinian Refugees in Arab Countries’, Journal of Palestine Studies, Vol. 25, No. 3 (Spring, 1996), pp. 36-45.

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