In AB and NB v Secretary of State for the Home Department (PA/07865/20119), the First-tier Tribunal found that the United Nations Relief and Works Agency (UNRWA) was unable to provide “protection and assistance” to a severely disabled Palestinian child living in Lebanon. As a direct consequence of that he was therefore a refugee under the terms of the refugee convention.
This is a rare example of a case in which the tribunal found that the United Nations Relief and Works Agency’s “protection and assistance” had ceased for reasons other than a targeted risk of serious harm by a state or non-state actor. The arguments and evidence deployed in this case may prove useful in some other Palestinian refugee cases.
When the appeal first came before the tribunal in 2020, Dr Storey, sitting as a First-tier Tribunal Judge, referred the case to the Court of Justice of the European Union for a preliminary ruling on the interpretation of article 1D of the refugee convention. I previously covered the court’s judgment (Case C‑349/20) here, so this post will focus on the tribunal’s application of the legal principles.
The appellants are Palestinian refugees born in Lebanon and registered with the United Nations Relief and Works Agency, which is the UN agency tasked with responsibility for Palestinian refugees. The appellants lived together with their other immediate family members in the Al-Bass refugee camp. AB is a disabled child with severe and complex needs.
In Lebanon, AB’s situation was dire; he was largely housebound and immobile, had limited opportunity for social interaction and received no education. NB, his mother, despaired because there was no prospect of his circumstances improving. After coming to the UK, AB was able to access medical care, therapy, and specialist education, which dramatically improved his quality of life.
The First tier Tribunal’s determination
The central question in any Palestinian refugee status appeal is whether the United Nations Relief and Works Agency’s “protection and assistance has ceased”. This is a critical test in Article 1D of the refugee convention.
One situation in which the agency’s “protection and assistance” will be found to have ceased is 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”: Case 364/11 El Kott at §63. As confirmed by the Court of Justice of the European Union in AB and NB, it is:
“not necessary to establish that UNRWA or the Lebanese authorities intended to inflict harm on the appellants to deprive them of assistance, by act or omission…it is sufficient to establish that UNRWA’s assistance or protection has in fact ceased for any reason, so that that body is no longer in a position, for objective reasons or reasons relating to the person’s individual situation, to guarantee him or her living conditions commensurate with its mission” (§72).
First-tier Tribunal Judge Swaney accepted that the United Nations Relief and Works Agency’s protection and assistance had ceased before AB and NB left Lebanon because it was “unable to guarantee living conditions for the appellants that are commensurate to its mandate”. She held that:
“It is clear from the evidence before me that while UNRWA is still providing basic services to Palestinian refugees in Lebanon, the agency is struggling to meet their needs generally and in some cases is unable to do so at all. I find that AB falls into this category.”
This finding was based on a detailed analysis of AB’s specific needs, set against the context of the United Nations agency’s chronic underfunding, the discriminatory legal framework for Palestinian refugees in Lebanon and the political, social and economic crisis. It also recognises that the agency’s protection and assistance must be effective in an individual case.
The Home Office did not argue that that there had been a positive change in country conditions allowing the appellants to return to Lebanon. If she had done so, the burden would fall on her: see the judgment of the Court of Justice of the European Union in AB and NB at §65. Nevertheless, the tribunal addressed the up-to-date background evidence and concluded that the situation in Lebanon had “deteriorated to a significant extent”.
The United Nations Relief and Works Agency itself has described life for Palestinian refugees in Lebanon as “ravished by poverty, despair and lack of prospect” and a growing number are being forced to seek safety and dignified living conditions outside UNRWA’s areas of operations.. Ninety-three per cent live below the poverty line.
In its letter filed with the Court of Justice of the European Union, the agency underlined the impact on its services of cuts to funding, deterioration in socioeconomic and humanitarian conditions and increasing instability in the areas in which it operates, and the disproportionate effect on disabled refugees. Although the situation in Lebanon is a fast-moving one, the compilation of country material published by Asylos in March 2023 is useful starting point for practitioners.
Where a Palestinian refugee has left the United Nations Relief and Works Agency’s designated area of operations, they are required to show that they were forced to leave for reasons “beyond their control and independent of their volition”: El Kott at §65. The tribunal found that both appellants met that test because they left Lebanon “directly as a result of AB’s disabilities”. The concept of “volition” was treated pragmatically; the tribunal acknowledged that AB was not competent to make decisions about where he lived, and that NB had no choice but to leave Lebanon because her son was not receiving “protection and assistance”.
In its judgment, the Court of Justice of the European Union stressed that only the United Nations Relief and Works Agency can provide “protection” or “assistance” within the meaning of Article 1D: §74, 76. That position is consistent with the drafters’ intention that responsibility for Palestinian refugees should lie squarely with the United Nations: §§74-77. The court held that that assistance provided by non-governmental organisations could be considered only where “UNRWA has a formal relationship of cooperation with them, of a stable nature, in which they assist UNRWA in carrying out its mandate”: §80.
The tribunal’s determination illustrates the way in which the court’s criteria limits the relevance of assistance from non-governmental organisations. The tribunal held that “no NGO in Lebanon with a formal and stable relationship of cooperation with UNRWA such that they can properly be described as assisting UNRWA to carry out its mandate”. The existence of limited support from non-governmental organisations for disabled Palestinian children in Al Bass refugee camp (relied upon by the Home Office at the original hearing) was therefore irrelevant.
This is a first-tier determination decided on its facts however, there is scope for other Palestinian refugees with disabilities to succeed in their appeals using the same arguments. NB has given consent for this determination to be shared, hoping that it might help other Palestinian refugees and their representatives. You can download a copy here.
The members of the legal team representing AB and NB were Anita Vasisht (Head of Immigration at Wilson solicitors), Raza Husain KC, Professor Takis Tridimas and Eleanor Mitchell (Matrix chambers), and Ronan Toal and Grace Capel (Garden Court chambers).