Chapter Six Summary of Findings: Protection Gaps 333
Introduction Summary of Findings: Protection Gaps Based on the survey presented in the previous chapter, this chapter will elucidate and summarize the major findings about country-specific interpretation and implementation of international instruments available for the protection of Palestinian refugees. Two major conclusions are clear: i) 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; ii) there is frequently a lack of equitable alternatives in the form of complementary forms of protection or protection under the 1954 Stateless Conventions. The analysis of findings and protection gaps presented here is preliminary, as complete information on key issues of interest was often difficult to obtain. 843 In some countries, the small number of asylum cases involving Palestinian refugees prevented decisive conclusions regarding the implementation of Article 1D. Difficulties with obtaining information regarding statelessness were often not related to specific cases involving Palestinians, but rather the result of a general lack of national procedures to identify cases of statelessness (with few exceptions, for example, Germany and Spain). Moreover, information was scarce regarding procedures and practice by states vis-à-vis Palestinians whose asylum requests were finally rejected (i.e., the issue of returnability). A partial explanation may be that the police are in charge of deportation procedures, and that refugee lawyers and practitioners do not necessarily know what ultimately happens to their clients once their claims have been rejected. Irrespective of the above, however, the information that has been obtained is sufficiently detailed to shed some light on the situation of Palestinian refugees 334
who as a group and due to their particular status under international refugee law tend not to fit into routine national asylum practice. Findings regarding the non-implementation of existing protection instruments, in particular Article 1D, will be discussed in the first section of this chapter. The combined impact of these protection gaps on Palestinian refugees seeking protection in third countries will be briefly outlined in the second section. 1. Summary of Findings Statistical Data Information about the total number of Palestinians present in state signatories to the major international Conventions on the protection of refugees and stateless persons, as well as data about those among them who are seeking protection under these instruments, is important for assessing the scope of protection needs, the effectiveness of the current protection regime and its relevance to the Palestinian refugee population. Scope of the Palestinian exile Many states surveyed for the purpose of this Handbook do not have official data on the total number of Palestinians present in their territory, and even estimates are difficult to obtain. The only data currently available are partial estimates compiled by official and unofficial Palestinian sources. 844 The lack of official data on the size of Palestinian exile communities can be partly explained by the lack of a consistent registration policy of states vis-à-vis Palestinian asylum-seekers. 845 Registration of Palestinian asylum-seekers 84 In nine countries, Palestinian asylum-seekers are registered with reference to their Palestinian origin: either as stateless Palestinians (Denmark, Hungary, Poland and Spain) or as Palestinians or under the category Palestine (Belgium, France, Ireland, Italy and New Zealand). 847 In ten countries, information about the Palestinian origin is not included in the official asylum statistics. Instead, various general categories which include other asylum-seekers are used by the national authorities: Stateless persons (Austria, Finland, Germany, the Netherlands, Norway and Sweden); National of a specific place/country: 335
by place of birth (United States); 848 by the country of last residence (Austria, Canada, Switzerland); Unclear nationality 849 (Finland, Germany, Hungary and Switzerland). Palestinians who have obtained a citizenship in a new country will often be registered as asylum-seekers originating from that country (for example, Jordan). 850 Clearly there is no consistent method of registration of Palestinian asylum-seekers, with registration differing from one country to the next. In some cases, Palestinians are registered under various categories even within the same country, and the criteria for selection of a specific registration category in these countries seem unclear (for example, Austria, Finland, Germany and Hungary). The lack of consistency in registration results in a situation where the total number of Palestinian asylum-seekers in a single country is unknown to national asylum authorities in charge; as a result, their particular needs and problems in the asylum process are impossible to identify and assess. 1.1 Status of Palestinians upon Entry into Third Countries In the countries reviewed, Palestinian asylum-seekers were granted the same legal status as other asylum-seekers. Asylum-seekers generally have the right to stay in the country of asylum during the determination process. The rights attached to such status, however, vary from one country to the next, for example with regard to the granting of work permits. In many countries, asylum-seekers are granted housing and the right to work, at least after some months (for example, Denmark, Finland and Sweden). In Australia, asylum-seekers who have entered the country illegally will be automatically detained. 1.2 Article 1D in Refugee Status Determination All the countries surveyed, except for the US, are parties to the 1951 Refugee Convention (the US is party to the 197 Refugee Protocol). Thus, as the provision explicitly designed to cover the specific protection needs of Palestinian refugees, Article 1D of the Convention represents a potential legal framework for the recognition of refugee status of Palestinian asylum-seekers in these countries. Proper interpretation and application of Article 1D requires that states recognize the refugee status of Palestinian refugees, providing that Article 1C, 1E and 1F do not apply. No additional assessment under Article 1A(2) is required (see Chapter Three). However, scholarly interpretation and the 2002 UNCHR Note published 33
in this regard have remained largely unheeded by national authorities and courts. This survey of national practice shows that Article 1D is 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 is either not incorporated and/or applied at all, or interpreted and applied in a way that precludes recognition of Palestinian refugees as refugees under this provision. Another important finding is 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 have been adopted to dismiss the applicability of Article 1D. In summary, national authorities in the twenty countries where Article 1D is not properly applied have adopted at least three different approaches to and eight different interpretations of Article 1D (see approaches 2 to 4 below). Irrespective of their differences, these approaches and interpretations of Article 1D lead to the same conclusion, i.e., that asylum claims submitted by Palestinian refugees are to be assessed under the criteria set out in Article 1A(2) and/or other criteria, for example, those related to protection on humanitarian grounds. 851 Thus, due to the particular interpretation of Article 1D by national authorities and courts in these countries, Palestinian asylum-seekers have not derived any rights and benefits from Article 1D beyond the right to not be excluded from applying for refugee status under Article 1A(2) of the 1951 Refugee Convention. 852 The various approaches and interpretations can be summarized as follows: Approach 1: Proper application: Article 1D can convey refugee status and no additional assessment under Article 1A(2) is required. Approach 2: No incorporation of Article 1D into national asylum legislation. Approach 3: No application of Article 1D to national asylum practice. Approach 4: Non-implementation of Article 1D based on the following erroneous interpretations of the meaning of its exclusion (first paragraph) and inclusion (second paragraph) clauses: The inclusion clause is applicable only if Palestinian asylum-seekers have not voluntarily relinquished UNRWA assistance; 337
The inclusion clause is applicable only if UNRWA ceases its functions; The inclusion clause is applicable only if Palestinian asylum-seekers are unable to return to their country of former habitual residence due to a well-founded fear of persecution in that country and cannot invoke UNRWA protection there; The inclusion clause is applicable only to Palestinian refugees from the West Bank and Gaza Strip; The inclusion clause is applicable only after Palestinian asylum-seekers have obtained a permanent residence permit; The exclusion clause is applicable only to Palestinians who were born on or before 28 July 1951 and who were assisted by UNRWA on that date; all others are entitled to apply for asylum under Article 1A(2); The exclusion clause is not applicable because UNCCP has ceased its protection activities; Palestinian asylum-seekers are entitled to apply for asylum under Article 1A(2); The exclusion clause will become non-applicable when UNRWA ceases its functions. Then Palestinian asylum-seekers will be entitled to apply for asylum under Article 1A(2) of the 1951 Refugee Convention (as they are currently able to). Approach 1: Proper Application Article 1D Can Convey Refugee Status and No Additional Assessment under Article 1A(2) is required. Among the countries surveyed, only three have properly interpreted and applied Article 1D (first and second paragraph), at least in some cases: Finland (in at least one case before the Supreme Administrative Court and two cases before the Helsinki Administrative Court), 853 Hungary (in at least five cases in 2003) 854 and Norway (at least with regard to Palestinian refugees from the West Bank and Gaza Strip). None of the other countries apply Article 1D properly. The proper alternative interpretation of Article 1D (see Chapter Three) was adopted in one decision by the Immigration Appeals Tribunal in the United Kingdom. Subsequent decisions and guidelines by the Home Office, however, have dismissed that interpretation. 855 Recognition of refugee status does not prevent national authorities from returning a Palestinian asylum-seeker to her/his country of former residence if return can be carried out in accordance with international human rights standards. In some countries, moreover, refugee status and returnability appear to be assessed jointly, and refugee status is granted only to persons who cannot be returned. In these cases, it is therefore impossible to know whether Palestinian refugees who were considered returnable by the national authorities were recognized as refugees in the process. 85 338
Approach 2: No Incorporation of Article 1D into National Legislation In two countries, Canada and the United States, Article 1D of the 1951 Refugee Convention is not part of national legislation. As signatories to the 1951 Refugee Convention (Canada) and/or the 197 Refugee Protocol (the United States), these states are acting in contravention of their obligation to ensure in good faith the application of the Convention and/or Protocol to their legislation. Approach 3: No Application of Article 1D to National Asylum Practice In three countries (Austria, Belgium and Switzerland), Article 1D is not applied, although it appears that the provision is incorporated into national legislation. In Austria, for example, the question of whether Article 1D has been incorporated into domestic law remains unclear; in Belgium, Article 1D does not play a role in the refugee determination process, despite the general reference in domestic law to the 1951 Refugee Convention, which presumably includes a reference to Article 1D; and in Switzerland, explicit reference to Article 1D is not found in domestic asylum law, but could be taken into consideration based on the fact that all international treaties to which Switzerland is party are directly applicable in Swiss law. In four countries (Italy, Mexico, Nigeria and South Africa), asylum claims by Palestinians are considered under the criteria set out in Article 1A(2) of the 1951 Refugee Convention. It is unclear why Palestinian claims are assessed in this way. In Italy, the exclusion clause (first paragraph) of Article ID is not applied because Palestinian asylum-seekers do not enjoy any form of protection in their countries of former habitual residence. However, as the arguments for positive decisions are never published, it is unclear why these asylum claims are considered under the criteria of Article 1A(2). In Mexico, Nigeria, and South Africa, the small number of Palestinian asylum cases did not permit an assessment of the application of Article 1D by the national authorities. Approach 4: Non-implementation of Article 1D based on Erroneous Interpretation of the Meaning of its Exclusion (first paragraph) and Inclusion (second paragraph) Clauses In twelve of the twenty-three countries reviewed, Article 1D is incorporated but interpreted and applied in a way that defeats its purpose as a separate and independent provision for determining the refugee status of Palestinian refugees. Eight different interpretations have been adopted by national authorities in this context, all of them 339
leading to the conclusion that Palestinian refugee status determination is required under Article 1A(2) or similar provisions under domestic law. In three of these countries, Spain, Poland and Ireland, the role of Article 1D in the refugee status determination is unclear. In Spain, no pattern could be discerned regarding the application of Article 1D, and each case involving a Palestinian refugee is eventually reviewed on its own merits under the criteria of Article 1A(2). In Poland, the first paragraph of Article 1D has been interpreted by the Polish High Administrative Court as meaning that Palestinian refugees who have resided outside UNRWA s area of operations for a number of years do not fall within the exclusion clause and are to be considered under the general criteria of Article 1A(2) of the 1951 Convention. The meaning of the inclusion clause appears to have remained unclear, but it seems that in any event, the inclusion clause can only be triggered as a result of objective causes, such as a ban on UNRWA s operations or lack of funds. In Ireland, one member of the Irish Refugee Appeals Tribunal appears to have applied Article 1D to cases involving Palestinian refugees. It is unclear, however, how Article 1D has been applied because the Appeals Tribunal also appears to have applied the criteria set out in Article 1A(2) of the 1951 Refugee Convention. In general, the eight predominant interpretations of Article 1D can be grouped into two categories: a) Interpretations holding that Article 1D, second paragraph, contains an inclusion clause on the basis of which and under certain conditions, Palestinian refugees may be entitled to the status and benefits of the 1951 Refugee Convention; b) Interpretations holding that Article 1D does not contain an independent inclusion clause, but rather represents a provision that may exclude Palestinian refugees from the scope of the 1951 Refugee Convention. a) Article 1D contains an independent but conditioned inclusion clause that may convey status and benefits under the 1951 Refugee Convention National authorities and courts in at least six countries (Denmark, France, Germany, Netherlands, Norway and Sweden) agree that Article 1D, second paragraph, contains an inclusion clause which means that Palestinian refugees are not required to fulfil the criteria set out in Article 1A(2) in order to qualify as refugees. However, the question of which event triggers the applicability of this inclusion clause has been answered in four different ways: 340
a-1) The inclusion clause is applicable only if Palestinian asylum-seekers have not voluntarily relinquished UNRWA assistance: Germany: The Federal Administrative Court concluded in its decision of 4 June 1991 that Palestinians who have voluntarily relinquished UNRWA s assistance are not entitled to refugee status under Article 1D of the 1951 Refugee Convention. The term has been interpreted broadly, so that the inclusion clause is only applicable if: a) the asylum-seeker is permanently removed from UNRWA s area; or b) following the asylumseeker s departure with a valid re-entry permit, she/he was unexpectedly and permanently denied re-entry to the area, and the impossibility of return was not foreseeable for the asylum-seeker at the time of departure. Claims submitted by Palestinians who do not fulfil these conditions are assessed under Article 1A(2). 857 a-2) The inclusion clause is applicable if UNRWA ceases its functions: Denmark: In its decisions of 3 April and 13 September 1990, the Danish Refugee Appeals Board concluded that Article 1D was not applicable in a case involving a Palestinian refugee from Lebanon, on the basis of a 24 March 1988 note prepared by the Danish Ministry of Foreign Affairs, stating that the inclusion clause is only applicable when UNRWA s assistance ceases. The conclusion was based on interpretation of the drafting history of Article 1D, including the relationship between the establishment of UNRWA and drafting of the 1951 Refugee Convention. The applicant was not excluded from applying for asylum under the Danish Aliens Act. France: The Commission des Recours des Réfugiés (CRR) concluded in its decision of 25 July 199 that Article 1D, second paragraph, was not applicable because UNRWA s assistance had not ceased. The applicant was not excluded from applying for asylum under Article 1A(2) of the 1951 Refugee Convention. a-3) The inclusion clause is applicable only if Palestinian asylum-seekers are unable to return to their country of former habitual residence due to a well-founded fear of persecution in that country and cannot invoke UNRWA protection there: Netherlands: In 2003, the Minister of Alien Affairs and Integration issued guidelines regarding recognition of Palestinian refugees, providing that these refugees are expected to return to UNRWA s area of operations for 341
the purpose of re-invoking the protection of that Agency (the authorities wrongly assume that UNRWA provides protection). Recognition will be granted only if the applicant can make a plausible argument that she/he cannot return to UNRWA s area of operations because of a well-founded fear of persecution in that area and cannot invoke UNRWA protection there. a-4) The inclusion clause is applicable only to Palestinian asylum-seekers from the West Bank and Gaza Strip where they lack the protection of a state: Norway: The authorities consider that Palestinian refugees from the West Bank and the Gaza Strip in general are in need of protection. The authorities have concluded that because the West Bank and the Gaza Strip are not states, and because the Palestinian Authority is not able to protect the Palestinians living in that area, the protection referred to in Article 1D has ceased. As the authorities do not consider the situation to be the same in Lebanon, Syria, Jordan or other countries, Palestinian refugees from these countries have to fulfil the criteria set out in Article 1A(2) of the 1951 Refugee Convention against their new home countries. a-5) The inclusion clause is applicable only after Palestinian asylum-seekers have obtained a permanent residence permit: Sweden: Palestinian asylum-seekers registered with UNRWA cannot justify their claims for asylum under Article 1D because, for as long as they are asylum-seekers, their UNRWA assistance is deemed not to have ceased. Article 1D becomes applicable only after status determination, when Palestinians falling within the scope of the provision are granted permanent residence permits, which then entitle them to the full scope of benefits of the 1951 Refugee Convention. 858 b) Article 1D does not contain an independent inclusion clause, but rather represents a provision that might exclude Palestinian refugees from the scope of the 1951 Refugee Convention National authorities in three countries (Australia, New Zealand and the United Kingdom) have concluded that Article 1D cannot convey the status and the benefits of the 1951 Refugee Convention to Palestinian refugees. Article 1D rather constitutes a provision which might exclude Palestinian refugees from the scope of the 1951 Refugee Convention. Debate has revolved around the scope of exclusion, and various interpretations have been advanced regarding when and to whom it applies: 342
b-1) The exclusion clause is only applicable to Palestinians born on or before 28 July 1951 and assisted by UNRWA on that date: UK: Persons to whom Article 1D applies are excluded from the scope of the 1951 Refugee Convention for as long as UNRWA continues to operate and, hence, are excluded from applying for asylum under Article 1A(2) of the Convention. Article 1D is relevant only to Palestinian refugees who were receiving protection or assistance from UNRWA on 28 July 1951, the date when the 1951 Refugee Convention was signed. It is not relevant to their descendants and to all other Palestinians. Palestinians who do not fall within the exclusion clause can apply for asylum under Article 1A(2). 859 b-2) The exclusion clause is not applicable if UNCCP has ceased its protection activities: Australia: The Federal Court and the Refugee Review Tribunal have concluded that since UNCCP has ceased its protection activities, the protection or assistance referred to in Article 1D, second sentence, has ceased. Palestinian asylum-seekers are therefore entitled to apply for asylum under Article 1A(2) of the 1951 Refugee Convention. 80 b-3) The exclusion clause will no longer be applicable once UNRWA ceases its function. Palestinian refugees will then be entitled to apply for asylum under the criteria set out in Article 1A(2) of the 1951 Refugee Convention (as they are currently able to): New Zealand: The Refugee Status Appeals Authority has concluded that the second paragraph of Article 1D only addresses a situation in which UNRWA ceases to operate. As long as UNRWA continues to function, Palestinian refugees must qualify for refugee status by satisfying the refugee definition set out in Article 1A(2) of the Refugee Convention. If UNRWA ceases its functions, Palestinian refugees will, however, still be required to fulfil those criteria. 81 Irrespective of the substantive amount of legal debate and case law on Article 1D documented in these countries, all of the above interpretations render Article 1D de facto ineffective in determining the status of Palestinian refugees under the 1951 Refugee Convention. 343
1.3 Misunderstanding UNRWA s Mandate National authorities and courts often reach the correct conclusion that UNRWA s mandate is limited to provision of humanitarian assistance. In the Netherlands, however, the possibility for Palestinians being recognized as refugees has been further limited by the authorities misunderstanding of UNRWA s mandate. 82 In most cases, the courts have simply assumed and stated without factual examination that UNRWA provides protection. On 2 April 2003, however, the Court of Appeal ruled that the state cannot assume that UNRWA is providing protection. It then requested the state to prove, on a case-by-case basis, whether UNRWA is actually capable of protecting the respective Palestinian asylum-seekers. 1.4 Lack of Attention to UNCCP s Mandate Although both UNCCP and UNRWA already existed at the time of the drafting of the 1951 Refugee Convention, national authorities and courts in only two countries have referred to the mandate of UNCCP in cases involving Article 1D. The Federal Court in Australia concluded that the reference to protection in Article 1D was a reference to UNCCP and that once UNCCP ceased its protection activities, the inclusion clause (interpreted as the right to apply for refugee status under Article 1A(2)) became applicable. In the United Kingdom, in a decision by the Court of Appeal on 2 July 2002, 83 Lord Justice Laws noted that UNRWA s role was primarily that of giving aid and assistance, whereas UNCCP was distinctly charged with providing protection. However, no further reference was made to UNCCP in his examination of the meaning of Article 1D. In an earlier case of February 2002, the Immigration Appeals Tribunal made a reference to UNCCP s protection mandate and concluded that because UNCCP had ceased its protection activities, the inclusion clause was applicable. 84 1.5 Country of Former Habitual Residence as an Obstacle to Access to Protection under the 1951 Refugee Convention Particular assessments, by few national authorities and courts, of the relationships between stateless asylum-seekers and their former country of habitual residence (CFHR), have further limited the possibilities for stateless Palestinian refugees to be recognized as Convention refugees. In Germany, the Federal Administrative Court has concluded that a state ceases to be the CFHR of a Palestinian who is expelled from or denied re-entry to the 344
country, unless the latter happened on grounds related specifically to the person and, hence, not as a result of general population policies. For example, if Lebanon denies Palestinians the right to return, this is clearly based upon a general policy towards Palestinians, and not related to the specific circumstances of an individual. If a state ceases to be the CFHR, the asylum-seeker can no longer apply for protection under the 1951 Refugee Convention, because there is no longer a country regarding which persecution can be assessed. A central legal issue in Canadian jurisprudence has also been the definition of the term CFHR in relation to claims submitted by stateless asylum-seekers, including Palestinians. The debate ended with the Federal Court s decision in the case of Maarouf in 1993, in which the Court concluded that a country may be considered the CFHR of a stateless claimant, even if the person cannot legally return to it, because denial of the right of return may, in itself, constitute an act of persecution by the state. 85 1. Complementary Forms of Protection 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 fulfiling 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 of protection. In many cases, complementary forms of protection are granted on humanitarian grounds, including if there is a serious risk to life or person arising from the death penalty, unlawful killing or torture, inhuman or degrading treatment or punishment if returned (i.e., Article 3 of the Torture Convention and Article 3 of the European Convention on Human Rights). 8 In other cases, the granting of complementary forms of protection is at the discretion of a Minister. 87 The legal status and the rights granted under complementary forms of protection are often similar to those granted to recognized refugees. In countries where Palestinians are granted complementary forms of protection, they are granted formal legal status with defined rights. In Poland, Spain and Sweden, Palestinians from the 197-OPT (West Bank and Gaza Strip) might currently be granted residence permits on humanitarian grounds, due to the ongoing conflict there. 88 However, some countries, in particular Germany and Switzerland, provide a form 345
of complementary protection which is no more than a temporary suspension of a deportation order which, nevertheless, remains valid over time. This practice violates the standards set out in the UNHCR Guidelines on Complementary Forms of Protection (see Chapter Four). 1.7 Lack of Implementation of the 1954 Stateless Convention The survey of national practice shows that only sixteen of the twenty-three countries examined in detail are parties to the 1954 Stateless Convention. 89 However, of these, Australia and Italy 870 have not yet incorporated the Convention into domestic law. Many countries lack a procedure by which statelessness can be determined. Only Spain has a sub-legislative act defining a procedure by which the designated authority may examine an application for recognition of stateless status. 871 Some other countries have authorities (either administrative or judicial) competent to recognize that an individual is stateless (for example, Belgium and France), or procedures by which a person can apply for a 1954 Convention Travel Document (for example, Germany and Sweden). This matter is not specifically related to Palestinians. However, given the lack of implementation of Article 1D, the 1954 Stateless Convention could resolve the legal void in which stateless Palestinian refugees often find themselves by providing legal status that entitles Palestinians to enjoyment of basic human rights. National practice adopted to identify and address protection claims of stateless Palestinians varies between countries. One of the findings of this survey is that in some of the countries, no practice has developed with regard to recognition of Palestinians as stateless persons entitled to the benefits of the 1954 Stateless Convention. 872 This may be explained by the fact that these national authorities examine Palestinians under domestic asylum law, including frameworks for complementary forms of protection (e.g., Denmark and the Netherlands). The problem then arises, however, that granting a legal status within an asylum framework depends on the Palestinian applicant being able to prove a risk of persecution or other need of protection, in particular when the inclusion clause of Article 1D is not applied (see section 3 above). Only in four countries, i.e., Belgium, France, Germany and Spain, have some Palestinians been recognized as stateless persons and granted the benefits of the 1954 Stateless Convention. As substantive case law from France and Spain was not available, some conclusions can be drawn only regarding Belgium and Germany: 34
In Belgium, Palestinians have been recognized as stateless persons by regular courts in the first instance. In practice, stateless persons are almost automatically granted permanent residence. They then enjoy the same benefits as third-country nationals in Belgium, including permanent residence, social support, work authorization and entitlement to family reunification. In Germany, the Federal Administrative Court has concluded that Palestinians who have not acquired the nationality of a third state are stateless in the sense of Article 1, paragraph 1, of the 1954 Stateless Convention. Entitlement to status and benefits under the Convention, however, is conditional upon fulfilment of the same restrictive criteria as applied to entitlement to refugee status under Article 1D; i.e., a stateless applicant must prove that she/he has not voluntarily relinquished UNRWA protection and assistance (see Approach 4/a-1 above). Moreover, access to many of the benefits of the 1954 Stateless Convention requires that the stateless person is staying in the country lawfully. German authorities and courts have ruled that Palestinians granted a so-called tolerance permit or exceptional leave (see below) are not lawfully staying in the country and are thus not entitled to these benefits. Many Palestinians who are holders of such permits have, therefore, been denied the benefits of the Convention. It remains to be seen whether recent law reform can provide them access to the benefits of the Convention. In Sweden, stateless Palestinians with permanent residence status who do not hold documents showing registration with UNRWA are entitled to 1954 Convention travel documents based on a recent appeal court decision. Practice, however, has remained inconsistent. 1.8 Lack of Adequate Solutions for Rejected Palestinian Asylum-seekers with Nowhere to Go Like other asylum-seekers, Palestinians with final negative decisions in their asylum applications and who are not granted complementary forms of protection are requested to leave the country of asylum. However, as stateless persons, they often have nowhere to go because no state will allow them to (re-)enter their territory. They are, therefore, at risk of being caught in a state of legal limbo and forced to live for years in the country of asylum without any legal status that could serve as the platform for access to basic human rights. Procedures for legalization of stay are often lengthy and difficult to access. 347
No Legal Status In many countries, rejected asylum-seekers who cannot be returned or removed are entitled to stay, although they do so without legal status: In Austria, deferral of deportation can be ordered if a deportation cannot be carried out for practical reasons. Persons affected by such orders are not issued travel or identity documents. They are not entitled to work but do have a right to social support. In Belgium, a so-called non-removal clause can be included in negative asylum decisions. Currently, this clause is included in negative decisions involving Palestinians from the 197-OPT. These Palestinians are entitled to stay in Belgium until the Commissioner-General decides that they can return to the country of former habitual residence. Persons staying in Belgium under the non-removal clause are not entitled to work, but do have a right to social support. Like other aliens illegally residing in Belgium, they may apply for regularization of their residence based on exceptional circumstances. There are no clear criteria in terms of years of residence before regularization will be granted. In France, rejected asylum-seekers who cannot be returned to their CFHR and who do not qualify for subsidiary forms of protection are left without any kind of personal document or residence permit. In Germany, rejected asylum-seekers who cannot be forcibly removed will be granted a so-called tolerance permit or exceptional leave ( Duldung ). This permit does not convey legal status. The holder of such a permit is still under an obligation to leave Germany. Legalization of stay in Germany by tolerated persons is possible under certain circumstances, but at the discretion of the authorities. In many cases, the authorities have dismissed legalization after years of residence. In Sweden, rejected Palestinian asylum-seekers who cannot be returned, for example, to Saudi Arabia, may have to live for years in Sweden without legal status. Even if they are able to prove that it is impossible for them to go back, the authorities will not give them permission to stay. Only when the Migration Board concludes that it is impossible to execute the deportation decision, will they be granted permission to stay on humanitarian grounds. They are entitled to re-apply for asylum four years after issuance of a final negative decision. 348
In Switzerland, provisional admission may be granted to rejected asylum-seekers if enforcement of an expulsion order is deemed technically impossible, not allowed under international law, or not reasonable. Such persons do not have a right to stay in Switzerland. Instead, the permits granted to them are substitutes for the unenforceable expulsion order. In principle, rejected asylum-seekers can remain in this situation indefinitely, which involves severe restrictions on the person (for example, place of residence is restricted, travel abroad is impossible, access to work is seriously limited and family reunification is very difficult). In the United Kingdom, practical barriers to removal do not constitute grounds for granting Discretionary Leave. A person who does not qualify for discretionary leave is expected to depart. Palestinians are treated as removable; if a negative asylum decision is issued, they will be removed as and when conditions permit. In some countries, however, rejected asylum-seekers who cannot be returned may receive legal status, at least after some time, and often in the framework of complementary forms of protection: In Denmark, for example, if an asylum-seeker cannot be removed or deported through no fault of her/his own (usually because the country of origin or CFHR refuses to re-admit her/him, or because of conflict there), and removal remains impossible for at least eighteen months, she/he may apply for a temporary residence permit. After seven years, the alien can apply for a permanent residence permit. Such persons enjoy almost the same rights as persons granted asylum, including the right to work. In Finland, rejected Palestinian asylum-seekers who cannot be returned or deported (due to, for example, a lack of travel documents or re-entry permits) may under certain conditions receive temporary residence permits and normal immigration status. They are then entitled to work and to the same social benefits as refugees. Their right to family reunification, however, is conditional upon their own financial resources and their ability to support family members joining them in Finland. In the Netherlands, a rejected asylum-seeker might obtain a regular temporary residence permit if she/he cannot be returned to her/his country of former habitual residence (for example, if it is impossible to obtain a travel document to that country and the asylum-seeker proves 349
Detention that she/he has seriously tried to obtain such a document). Such a permit is valid for a year and renewable if the obstacles to expulsion remain. After five years of continuous residence in the country, the holder will be entitled to a residence permit for an indefinite period. She/he does not enjoy the same rights as recognized refugees. Family reunion, for example, is not permitted. Work is only allowed under special conditions. In some countries, rejected asylum-seekers might even be detained: In Australia, for example, rejected asylum-seekers who do not leave voluntarily will be issued deportation orders. Such persons may be kept in detention for long periods of time, until permission to return to a CFHR is finally granted. 873 In Spain, authorities may detain a foreigner in order to ensure the enforcement of a deportation order. However, such detention must be authorized and monitored by a judge, and can never exceed 40 days. In Sweden, rejected asylum-seekers above eighteen years of age may be detained in order to ensure the enforcement of a deportation, and if there is a reason to assume that she/he will escape or hide. Foreigners above the age of eighteen may also be detained while seeking asylum, if their identity is unclear. 874 In the United States, rejected Palestinian asylum-seekers are returned to their CFHR. A removal order can be cancelled if the applicant has been living in the US for ten or more years and has a qualifying relative who is a citizen or a permanent resident of the US, and who will suffer extreme and unusual hardship if she or he is deported. Palestinians who cannot be returned are forced to live in the US with final orders for removal and are subject to forced return. They may be taken into custody at any time and held for an indefinite period until removal becomes possible. 350
2. The Impact of Protection Gaps on Palestinian Refugees Seeking Protection in Third Countries 351
Problem 1: Non-Implementation of Article 1D Article 1D under the 1951 Refugee Convention is the provision designed to afford protection, when needed, to Palestinian refugees. The criteria of applicability reflects the specific situation of Palestinian refugees as a group, being refugees vis-à-vis Israel, and thus, not being required to show a well-founded fear of persecution in any of their current CFHRs. Non-implementation of Article 1D thus deprives Palestinian refugees of the major provision that could ensure their access to protection under the 1951 Refugee Convention. Problem 2: CFHR Most Palestinian asylum claims are examined under the criteria of Article 1A(2) or similar criteria of national asylum law. The problem that arises here, however, is that granting asylum under these criteria depends on the applicant s ability to prove a risk of persecution or another need for protection resulting from the situation in her/his CFHR. Stateless Palestinians in Germany, for example, might fail to fulfil these criteria, because as stateless persons they do not have a CFHR against which persecution could be assessed. Problem 3: Nowhere to Go Rejected Palestinian asylum-seekers are requested to leave their country of asylum and scheduled for removal by the police. Stateless Palestinian refugees, however, have nowhere to go, and in many cases, governments cannot convince their country of origin (Israel) or their CFHRs to re-admit them. Problem 4: Legalization of Stay In many countries, procedures for legalization of stay are lengthy and difficult to access for persons holding a form of toleration permit. Stateless Palestinian refugees thus run a high risk of living for many years without any legal status and access to basic human rights. UNHCR has identified two groups of beneficiaries who should be granted permission to stay in a country on grounds related to a need for international protection, among them: Persons who should fall within the terms of the 1951 Convention relating to the Status of Refugees or its 197 Protocol, but who may not be so recognized by a state as a result of varying interpretations. 875 352
Palestinian refugees are included in this group because, while falling within the 1951 Refugee Convention pursuant to Article 1D, they are often not recognized as Convention refugees due to erroneous application of Article 1D by national authorities and courts. They are, therefore, entitled to international protection and to a legal status which allows them to continue their lives in dignity. The problems of Palestinians seeking recognition of statelessness: Lack of accession to the Statelessness Conventions; Lack of national frameworks specific to stateless persons; Lack of practice with regard to recognition of Palestinians as stateless persons; Palestinians who are not lawfully staying in a country are denied access to the benefits of the 1954 Stateless Convention. 353
Endnotes 843 See Chapter Five for the key issues, i.e., 1) Statistical Data; 2) Status of Palestinians upon Entry to a Country; 3) Refugee Determination Process: Refugee Status and Complementary Forms of Protection; 4) Refugee Status Determination Process: Outcome; 5) Return-Deportation; ) Temporary Protection; 7) Protection under the Statelessness Conventions; and 8) Relevant Jurisprudence. 844 See, for example, data published by the Palestinian Central Bureau of Statistics (PCBS) (see Chapter One) and updated estimates compiled using the framework of the Civitas Project (see Chapter Five). 845 Palestinians who move on to third countries may decide not to apply for asylum, but rather seek to obtain residence permits within the general aliens framework (e.g., for study purposes). BADIL did not examine how this sizeable group of Palestinians is registered in official immigration and alien statistics. 84 In five of the twenty-three countries researched, no information could be obtained about the official registration policy regarding Palestinian asylum-seekers (Australia, Mexico, Nigeria, South Africa and the United Kingdom). 847 In Hungary, the category Palestinian nationality is also used. Asylum-seekers included in this category are most likely those holding documents which prove their Palestinian nationality (e.g., travel documents issued by the Palestinian Authority). 848 For example, Kuwait, Saudi Arabia or Jordan. Palestinians from the Gaza Strip are listed as Gaza, Palestinian (or, in some states, as Egyptians ), whereas Palestinians from the West Bank, at least in some states, are listed as Jordanian. 849 Only the authorities in Switzerland use the last category clearly for a specific group of Palestinian refugees, i.e., Palestinians from the 197-OPT, which is not recognized as a state (the category is also used for asylum-seekers whose country of origin cannot be determined). In Hungary, Palestinians are registered in this category when the Palestinian asylum-seekers cannot substantiate their Palestinian nationality or background. In Finland, the category used is citizenship unknown. It is unclear how this category is being used in Germany. 850 See, for example, Austria, Denmark, France, Germany, Hungary, Poland and Sweden. 851 As in other asylum cases, cases submitted by Palestinians will be examined in relation to other relevant criteria. For example, in many countries, an asylum-seeker who is not recognized as a refugee may be granted a residence permit if she/he risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to her/his country of origin (as provided in the Torture Convention). 852 The only Palestinians who are excluded from seeking asylum under the 1951 Refugee Conventions are Palestinians born before or on the 28 July 1951, who are appealing for asylum in the UK. 853 In Finland, it appears that future access to, and scope of protection for Palestinian refugees under Article 1D will depend on the specific meaning given by the Finnish authorities to the term voluntarily relinquished UNRWA assistance. 854 In Hungary, however, this application of Article 1D has been inconsistent: three other cases involving Palestinian refugees were assessed in 2003 under Article 1A(2) of the 1951 Refugee Convention. 855 See Isam El-Issa v. Secretary of State for the Home Department (4 February 2002) (Chapter Five, Country Profile United Kingdom). 85 The distinction is relevant if the rejected asylum-seeker is to be returned to a country party to the 1951 Refugee Convention. If recognized as a refugee, she/he should be returned with the rights of a refugee and entitled to enjoy such rights in the country to which she/he is returned. 857 In Finland, it is unclear which specific meaning will be given to the term voluntarily relinquished by the Finnish authorities. If a broad interpretation is adopted, Finland may be more in line with German case law in future. 858 For example, Palestinians who are granted permanent residence permits on humanitarian grounds are entitled to travel documents, one of the benefits of the 1951 Refugee Convention (Article 28), whereas other asylum-seekers granted residence permits on humanitarian grounds are not entitled to travel documents. 859 This interpretation of Article 1D was adopted by the Supreme Court of Appeal in London on 2 July 354
2002 in the case of Amer Mohammed El-Ali v. Secretary of State for the Home Department, and Daraz v. Secretary of State for the Home Department, [2002] EWCA Civ 1103, and [2003] 1 WLR 95. (See Chapter Five, Country Profile, United Kingdom.) 80 See case No. 1/92 Re SA of 30 April 1992 (Chapter Five, Country Profile, New Zealand). 81 See ibid. 82 For more information, please refer to Chapter Five, Country Profile, the Netherlands. 83 Amer Mohammed El-Ali v. Secretary of State for the Home Department, and Daraz v. Secretary of State for the Home Department. 84 Isam El-Issa v. Secretary of State for the Home Department. 85 For more information, please refer to Chapter Five, Country Profile, Canada. 8 See, for example, Denmark, Finland, France, Netherlands, Sweden and the United Kingdom. 87 See, for example, Australia and Spain. 88 In the case of Sweden, however, the situation of general violence is no longer considered sufficient grounds for a residence permit. In Norway, Palestinians from the 197-OPT who are not registered with UNRWA are generally granted residence permits on humanitarian grounds. Those registered with UNRWA are granted such permits under Article 1D of the 1951 Refugee Convention. 89 Australia, Belgium, Denmark, Finland, France, Germany, Hungary, Ireland, Italy, Mexico, Netherlands, Norway, Spain, Sweden, Switzerland and the United Kingdom. The following countries are not parties to the Convention: Austria, Canada, Poland, New Zealand, Nigeria, South Africa and the United States. 870 Italy does not implement the 1954 Stateless Convention in practice, but has a procedure for the recognition of statelessness. 871 See also UNHCR, The 1954 Convention relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonisation, Department of International Protection, October 2003, p. 1-19: It is unclear why so many EU member states lack a specific legal framework, including a procedure, by which statelessness can be determined. A possible reason may be that in the majority of these states, stateless persons tend to show up in refugee status procedures and are dealt with in this framework, including the framework for humanitarian or subsidiary protection. Certainly, for stateless persons with claims of persecution, the asylum framework is the appropriate channel in which to present themselves to the authorities. Yet, in instances where no laws or specific procedures exist to implement the 1954 Convention, it appears that states are grappling nonetheless with the issue of stateless individuals on their territories and are finding ad hoc approaches to addressing it. To some extent, stateless persons may be obliged to channel their applications through the asylum framework specifically because there is no other procedure available. Moreover, without specific procedures aimed at identifying stateless persons, it remains unclear how many cases are left unnoticed and unidentified within the EU. It is, therefore, impossible to determine the magnitude of the problem of statelessness within EU Member States as there is no consistent way of identifying cases. 872 In some countries (including Finland, Mexico, Norway, Switzerland and the United Kingdom), BADIL was unable to obtain information on the issue of statelessness. It is likely that in some of these countries, no practice has been developed with regard to recognition of Palestinians as stateless persons entitled to the benefits of the 1954 Stateless Convention. 873 See Chapter Five, Country Profile, Australia, concerning the detention of a Kuwaiti-born Palestinian asylum-seeker for ten months in the Australian detention center on Manus Island, north of Papua New Guinea. 874 Aliens Act, ch., para. 2 about detention and supervision. 875 See Complementary Forms of Protection: Their Nature and Relationship to the International Refugee Protection Regime. (See Chapter Four for further details.) 355