Palestinians Who Fall Under the 1951 Convention

Resource Person: Professor Susan Akram

Email: sakramatgbls [dot] org (or smakramatbu [dot] edu)

Professor Susan Akram directs Boston University Law’s International Human Rights Clinic, in which she supervises students engaged in international advocacy in domestic, international, regional, and UN fora. Her research and publications focus on immigration, asylum, refugee, forced migration and human and civil rights issues, with an interest in the Middle East, the Arab, and Muslim world. Akram's distinguished research was recognized with a Fulbright Senior Scholar Teaching and Research Award for the 1999–2000 academic year. She has lectured on Palestinian refugees to general audiences around the world as well as to committees of the United Nations (including the High Commission for Refugees and the Relief and Works Agency for Palestine Refugees), the European Union, and representatives of European and Canadian government ministries and parliaments. Since September 11, 2001 she has presented widely on the USA Patriot Act and immigration-related laws and policies as well as on her work challenging standard interpretations of women’s asylum claims from the Arab/Muslim world. She has taught at the American University in Cairo, Egypt and at Al-Quds and Birzeit Universities in Palestine. She regularly teaches in the summer institute on forced migration at the Refugee Studies Centre at Oxford University, and in various venues in the Middle East on refugee law

2015 Edition: Handbook on Protection of Palestinian Refugees under the 1951 Refugee Convention
2011 Edition: Handbook on Protection of Palestinian Refugees under the 1951 Refugee Convention

Few governments, judges, or legal advisers seem to be aware that Palestinians outside the 'host' states are protected under the 1951 Refugee Convention, as specified under Article 1D. The BADIL Resource Centre has released an update of its 2005 Handbook on Protection of Palestinian Refugees in State Signatories to the 1951 Refugee Convention, that seeks to document developments of jurisprudence regarding Article 1D between 2005 and 2010. The 2005 Handbook provided a history of the circumstances giving rise to the Palestinian exodus, and of the international institutional mechanisms set up to provide protection and assistance. It also explained the “protection gaps” that have emerged in national practice, and made practical, rule-based suggestions for bridging those gaps. Read together, the 2005 Handbook and its update are an essential source of information for lawyers of Palestinian refugees working in states which are signatories to the 1951 Refugee Convention. The original handbook and its update are available on BADIL’s resource page for refugee lawyers; overviews of available protection can be viewed by country. 

Introduction

Palestinian refugees present one of the largest and most protracted cases of displacement in the world. Most Palestinian refugees were displaced in 1947–1949, when the state of Israel established itself by means of military force on the land of Arab towns and villages. However, many other waves of displacement have occurred since, for example during the 1967 Arab-Israeli war. Palestinians continue to be displaced, both within and from the 1967-occupied Palestinian territory (including East Jerusalem), and within and from the state of Israel itself.

The majority of Palestinian refugees live in Arab countries adjacent to Israel (i.e., Lebanon, Syria and Jordan) and in the Occupied Palestinian Territories (West Bank, including East Jerusalem, and the Gaza Strip). Many have suffered several displacements, and most of them lack adequate protection of their human rights.

Prolonged exile under dire circumstances and repeated conflict in the Middle East have caused some Palestinian refugees to move on to countries outside the Middle East, including Europe and North America, in order to seek protection in states signatories to the 1951 Convention relating to the Status of Refugees and/or the 1954 Convention relating to the Status of Stateless Persons.

The information contained on this page will focus on legal issues relating to those Palestinians who have left their homes in the Middle East and become asylum seekers elsewhere. It will be argued that Article 1D of the 1951 Convention provides a potential legal framework for the recognition of refugee status of Palestinian asylum-seekers in countries which are signatories to the 1951 Convention.

The information is based on UNHCR’s Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the status of Refugees to Palestinian refugees (October 2009) (hereinafter “UNHCR Revised Note”) and the BADIL Handbook on Protection of Palestinian Refugees. The Handbook included research of asylum cases of Palestinian refugees in more than 30 countries.

Contents

Practitioners may wish to consult these documents for further details on the various legal issues which will be briefly introduced below. The contents of the page are as follows:

I.   Article 1D of the 1951 Refugee Convention

II.  Application of Article 1D in Refugee Status Determination

III. National Practice

IV. Complementary forms of protection under the 1954 Statelessness Convention

V.  Sources of information

Article 1D of the 1951 Refugee Convention

The following two sections will discuss arguments to make on behalf of Palestinian asylum seekers who wish to obtain refugee status in a third country. This information aims to serve as a practical guideline for all parties, including lawyers and national authorities, involved in the process of determining Palestinian refugee status.

Purpose and Wording of Article 1D

It is crucial for practitioners, and ultimately for national asylum authorities, to understand that Palestinian refugees have been singled out in the 1951 Refugee Convention and that a different and separate analysis based on Article 1D applies in the determination of their status when they seek asylum in third countries.

Moreover, and most importantly, practitioners and national authorities should interpret and implement Article 1D in accordance with the wording, historical context and purpose of the provision. This was to ensure that Palestinian refugees, who at the time of the drafting of the 1951 Convention, as well as the UNHCR’s statute (see Article 7C), were considered to have the characteristics of refugees falling under Article 1A of the 1951 Convention, and would be entitled to the benefits of the Refugee Convention “ipso facto” when they no longer enjoyed protection or assistance from the two UN agencies set up specifically for the Palestinian refugees (the United Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)).

Thus, the refugee status determination process by national authorities in cases involving Palestinian refugees should be based on Article 1D and not on Article 1A of the 1951 Convention. This key point has now been clearly explained by UNHCR in its Revised Note (paragraph 9(b)):

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.

Unfortunately, however, most national authorities have not to date implemented the proper interpretation of Article 1D, despite the repeated and numerous recommendations of UNHCR - for example in the Revised Note (see further Section III). This means that Palestinian refugees are often in practice denied the rights and protection to which they are entitled according to the legal framework set out in Article 1D.

Article 1D provides that:

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.

Article 1D thus includes both an exclusion clause (paragraph 1) and an inclusion clause (paragraph 2). Before discussing the proper implementation of Article 1D, it is important to discuss the group of Palestinians who might ultimately benefit from this specific provision.

Beneficiaries of Article 1D

As stated by UNHCR in its Revised Note (paragraph 3):

Given the wording, historical context and purpose of Article 1D of the 1951 Convention, certain Palestinian refugees fall within the scope of that Article because: (i) they have the characteristics of refugees as defined in Article 1A of the 1951 Convention; (ii) their position has not been definitively settled in accordance with relevant resolutions of the UN General Assembly; and (iii) alternative arrangements have been made for such refugees to receive assistance or protection from organs or agencies of the United Nations other than UNHCR.

In accordance with UNHCR’s Revised Note, the group of beneficiaries of Article 1D would be Palestinians who, according to relevant General Assembly resolutions, are part of the group of persons eligible to receive assistance from UNRWA. Two groups of Palestinians are currently eligible to UNRWA’s services, namely:

a) 1948 “Palestine refugees” and their descendants.

b) 1967-displaced persons and their descendants.

“Palestine refugees” is a term used by UNRWA in its registration system to refer to “any person whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948 and who lost both home and means of livelihood as a result of the 1948 conflict”. Group b) refers to Palestinians who do not belong to group a) and who are “’displaced persons” within the sense of UN General Assembly Resolution 2252 (ES-V) of 4 July 1967 and subsequent UN General Assembly Resolutions, and who have been unable to return to the occupied Palestinian territories.

Palestinians who do not fall within these groups would not be entitled to benefit from the status determination process set out in Article 1D, paragraph 2. By way of example, Palestinians who were displaced inside the state of Israel around 1948 and their descendants do not fall within the scope of Article 1D. They might, however, qualify as refugees under Article 1A(2)  of the 1951 Convention.

The objective of the provision was thus, in relation to Palestinian refugees, who were considered refugees under Article 1A of the 1951 Convention, to replace the determination process set out in Article 1A of the Convention with the Article 1D test. This means that according to the Convention, Palestinians who seek asylum in third countries and who fall within the scope of Article 1D should not be required to provide evidence of “a well-founded fear of being persecuted for reasons of….”  (Article 1A(2) of the 1951 Convention).

Practitioners should also note that Palestinians who fall within the scope of Article 1C, 1E or 1F of the 1951 Convention would not fall within the scope of Article 1D, although, as stated by UNHCR, “they remain “Palestine refugees” or “displaced persons” whose position is yet to be definitively settled in accordance with the relevant UN General Assembly resolutions” (paragraph 4 of the Revised Note).

Application of Article 1D in Refugee Status Determination

The following section will address the various arguments which practitioners need to make when defending the application of Article 1D in a specific case.

  • Which state is to be considered the state of persecution in a claim to refugee status submitted by Palestinians?

As briefly discussed above, Article 1D was included in the 1951 Refugee Convention to ensure that Palestinian refugees would be recognized by national authorities and the international community as refugees vis-à-vis the state of Israel following the 1948 Arab-Israeli conflict. Israel is therefore to be considered the putative state of persecution in a claim to refugee status submitted by Palestinians under Article 1D. This also applies to 1967-displaced persons. (See further BADIL Handbook Chapter III).

  • Does the Palestinian fall within the scope of Article 1D?

In order to be able to benefit from the inclusion clause in Article 1D, paragraph 2, practitioners would first have to establish that the Palestinian asylum seeker falls within the scope of Article 1D, as discussed above (section II). This means that evidence would have to be presented to national authorities showing that the Palestinian asylum seeker is either (a) a 1948 Palestine refugee, or (b) a 1967-displaced person under UNGA Resolution 2252; or a descendant of a person belonging to one of these groups.

The question of whether a Palestinian falls under group (a) would have to be determined on a case-to-case basis. As the overwhelming majority of refugees are registered with UNRWA, evidence of belonging to group (a) and their descendants can often be provided by obtaining a verification of registration from the Department of Relief and Social Services at UNRWA's headquarters in Amman (see contact address below). Refugee lawyers (or national authorities) who are seeking to verify whether a Palestinian asylum seeker is registered with UNRWA should include the following information in their request:

* Full name

* Date of birth

* Mother's name

* Place of origin in Palestine

* When did her/his original family leave Palestine in 1948, and to where did they go?

* Is s/he or her/his father or grandfather registered with UNRWA?

* Does/did s/he have paternal relatives living in the UNRWA field in which the person concerned is supposed to have been registered? If so, what are their names and present address/es?

* Does s/he have any document issued by UNRWA, such as a registration card, school certificates, or other?

* Does/did s/he or her/his family receive services from UNRWA? If so, from which UNRWA center?

Practitioners should note that Palestinian refugees who seek asylum in third countries might be registered with UNRWA although they might never have lived within UNRWA’s area of operations – for example descendants of Palestinian refugees born outside UNRWA’s area of operations.

Upon verification of refugee status, UNRWA will inform the authority or refugee lawyer as to whether there is a UNRWA registration for a person with the name and background of the asylum-seeker. UNRWA cannot, however, verify that the person who is applying for refugee status is, indeed, the person with the name on the registration card in question.

Some 1948-Palestine refugees have never registered with UNRWA (approximately 1.6 million refugees). According to UNRWA, there is a relatively high number of non-registered refugees in Jordan, whereas there are few non-registered refugees in other areas of UNRWA operations. Registration with UNRWA continues to be voluntary and, thus, such a person may at any time choose to be registered with UNRWA if s/he fulfils the definition of a Palestine refugee. It is, however, UNRWA's practice to ascertain that refugees applying for new registration are legally residing in the country where they wish to be registered.

Practitioners who are involved in cases regarding non-registered Palestine refugees would have to prove the refugee status by other means than UNRWA registration (see further information in the BADIL Handbook (page 57).

The question of whether a Palestinian falls within group (b) and thus became a refugee for the first time in 1967 (or is a descendant of such a refugee) would also have to be determined on a case-to-case basis. UNRWA has not registered Palestinians who became refugees for the first time in 1967 so practitioners cannot seek verification of registration from UNRWA.

UNRWA’s contact details:
UNRWA Headquarters, Relief and Social Service Department
P.O. Box 140157, Amman 11814, Jordan
(see also www.unrwa.org)

Practitioners should finally note that UNRWA requires proof of consent by the asylum-seeker concerned before personal data, including registration status, will be released. Enquires should therefore be accompanied by a certificate signed by the client indicating consent to the release of information pertaining to them.

  • Does the Palestinian asylum-seeker fall within the exclusion clause (paragraph 1) or the inclusion clause (paragraph 2) of Article 1D?

When it has been demonstrated that the Palestinian refugee falls within the scope of Article 1D, s/he would then have to establish that s/he falls within paragraph 2 of Article 1D. Evidence of this is straightforward because Palestinians seeking asylum will do so outside UNRWA's area of operations and, hence, their physical location itself proves that they no longer receive assistance from UNRWA and that they therefore fall within the scope of Article 1D, paragraph 2. This interpretation of Article 1D is supported by UNHCR Revised Note (paragraph 8):

If, however, 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.11 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. This would be the case even if the person has never resided inside UNRWA’s area of operations.

An alternative interpretation of Article 1D which could also be advanced in favour of Palestinian asylum-seekers would consist in saying that as the international protection provided by UNCCP has ceased, all Palestinian refugees fall within the scope of Article 1D, paragraph 2. This argumentation has been developed by law professor Susan Akram (see BADIL Handbook page 90).

  • Does the Palestinian refugee fall within one of the cessation or exclusion clauses?

As in other refugee determination processes, the Palestinian asylum seeker would have to demonstrate that s/he does not fall within Articles 1C, 1E or 1F of the 1951 Convention.

Conclusion

When defending a claim for asylum submitted by a Palestinian refugee, practitioners may follow the arguments mentioned above, and then supported by the submitted evidence, s/he may argue that the Palestinian asylum seeker should enjoy the benefits of the 1951 Refugee Convention and therefore no act of refoulement can be taken against him or her.

Unfortunately, however, most national authorities have not (yet) accepted the proper interpretation of Article 1D and it is therefore likely that they would be unwilling to be convinced by the argumentation discussed above. Practitioners should therefore be aware of the specific case law related to Article 1D in their country, as discussed further below.

National Practice

Unfortunately for Palestinian asylum seekers, the proper legal interpretation of Article 1D, as discussed above, and the UNHCR Revised Note published in this regard have remained largely unheeded by national authorities and their courts. As the BADIL research concluded in 2005 (Handbook Chapter VI):

There is a lack of consensus about the proper interpretation of Article 1D of the 1951 Refugee Convention, resulting in the non-implementation of its provisions and referral of Palestinian refugees to status determination under the criteria of Article 1A(2) of the 1951 Refugee Convention.

The BADIL research, conducted by the author, showed that Article 1D was properly applied in only three of the twenty-three countries reviewed in detail: Finland, Hungary, at least in some cases, and, to some degree, Norway. In all other twenty countries, Article 1D was either not incorporated and/or applied in all, or interpreted and applied in a way that precludes recognition of Palestinian refugees as refugees under Article 1D.

Another important finding of our research was the diversity of interpretations of Article 1D: in twelve of the countries in which Article 1D is incorporated but not fully implemented, at least eight different interpretations had been adopted to dismiss the applicability of Article 1D.

Practitioners might wish to consult the Handbook for further details on the interpretation of Article 1D in their country. They can also use the Handbook to seek case law from other countries which might support their claims in favour of Palestinians.

http://curia.europa.eu/jurisp/cgi-bin/form.pllang=EN&Submit=rechercher&numaff=C-31/09
Please also note that there is a pending case concerning Article 1D before the European Court of Justice (Case C-31/09 - reference for a preliminary ruling from the Fovarosi Birosag (Hungary), Nawras Bolbol v. Bevandorlasi es Allampolgarsagi Hivatal). Advocate General Sharpston delivered her opinion in the case on 4 March 2010 and it is available at http://curia.europa.eu/jurisp/cgi-bin/form.pllang=EN&Submit=rechercher&numaff=C-31/09.

Complementary forms of protection or protection under the 1954 Stateless Conventions

The grant of complementary forms of protection to asylum-seekers is not an issue specifically related to Palestinian refugees. However, due to the lack of implementation of Article 1D of the 1951 Refugee Convention and the difficulties Palestinian refugees face with fulfilling the criteria set out in Article 1A(2), the availability of such forms of protection becomes important for Palestinian refugees seeking legal status in third countries.

Granting complementary forms of protection depends on the applicant being able to prove a need for protection. In many cases, complementary forms of protection are granted on humanitarian grounds. For a discussion of national practice concerning granting complementary forms of protection to Palestinians, see BADIL Handbook, page 345.

Palestinian asylum-seekers who are denied protection under the Refugee Convention may seek protection under the 1954 Stateless Convention if the country in question is a party to the convention. The BADIL research proved, however, that many countries lack a procedure by which statelessness can be determined, and that in 2005, only four countries had recognized some Palestinians as stateless persons and granted them the benefits of the 1954 Stateless Convention. For further information on national practice concerning the Stateless Convention, see BADIL Handbook, page 346.

Case Law

El Kott and Others v. Hungary (C-364/11) 

Gábor Győző, Attorney at the Hungarian Helsinki Committee, pleaded before the Court of Justice of the European Union (CJEU), in the El Kott case (C-364/11), establishing for the first time that it can be considered that the UN Agency for Palestine Refugees in the Near East (UNRWA)'s assistance has ceased when it is impossible for the Agency to accomplish its mission and when refugees are forced to leave its area of operations as otherwise their personal safety would be at serious risk. In these cases, Palestinian refugees who apply for asylum in the European Union should be granted asylum automatically. The Refugee Convention and the Qualification Directive stipulate that refugees receiving assistance from UNRWA shall not benefit from protection under the Refugee Convention, unless the assistance provided by UNRWA has ceased without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations.

UNHCR published their oral intervention here.

Bolbol v. Bevándorlási és Állampolgársági Hivatal 

United States Court of Appeals for the Sixth Circuit,  Mariam Hassan El Assadi v Holder, Attorney General , 25 April 2011.

El Karem El Kott and Others v Bevándorlási és Állampolgársági Hivatal (C-364/11)

Court of Justice of the European Union, Luxembourg, 19 December 2012. 

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