The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05179/2018


Heard at Cardiff
Decision & Reasons Promulgated
On 25 April 2019
On 9 July 2019






For the Appellant: Mr McGarvey, of McGarvey Immigration & Asylum Practitioners Ltd.
For the Respondent: Mr D. Mills, Senior Home Office Presenting Officer.

1. The appellant is a Palestinian from Lebanon. He was born and grew up in the Ein El Hilwa refugee camp in Lebanon. Members of his family still live there. He came to the United Kingdom on 11 December 2007 and claimed asylum. He was refused, and appealed to the First-tier Tribunal. Judge Trevaskis dismissed his appeal in a decision sent out on 30 May 2018. He now appeals, with permission, to this Tribunal.
2. Judge Trevaskis considered the appellant's claim under a number of heads, including the Refugee Convention, article 15(c) of the Qualification Directive 2004/83/EC, and the European Convention on Human Rights. The grounds of appeal to this Tribunal challenge only his decision in relation to the Refugee Convention. So far as that is concerned, the crucial provision is that in article 1D of the Convention, as follows:
"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."
3. Article 1D was and is intended to cover the activities of the United Nations Relief and Works Agency (UNRWA) in refugee camps for Palestinians. Article 1D has received the attention of the courts on a number of occasions, particularly in reference to the position of people who leave refugee camps and make asylum claims, asserting that since they are no longer in the camp, UNRWAs protection or assistance has "ceased for any reason". The most authoritative statement of the law on this matter, which is certainly binding on us, is the judgment of the Grand Chamber of the CJEU in El Kott and Others, CC-364/11. It can no longer be properly argued that the mere fact that a person is not physically within a camp causes the cessation of the applicability of article 1D. What is important is the reason for the person's absence from the camp. The test is set out in El Kott at [65]:
"[T[he second sentence of article 12(1)(a) of Directive 2004/83 [which is identical to article 1D of the Refugee Convention] must be interpreted as meaning that the cessation of protection or assistance from organs or agencies of the United Nations other than the HCR "for any reason" includes the situation in which a person who, after actually availing himself of such protection or assistance, ceases to receive it for a reason beyond his control and independent of his volition. It is for the competent national authorities of the Member State responsible for examining the asylum application made by such a person to ascertain, by carrying out an assessment of the application on an individual basis, whether that person was forced to leave the area of operations of such an organ or agency, which will be the case where that person's personal safety was at serious risk and it was impossible for that organ or agency to guarantee that his living conditions in that area would be commensurate with the mission intrusted to that organ or agency."
4. The question for us, therefore, is whether the appellant's departure from the camp was, within the meaning of that test, "forced", so that the cessation of UNRWA's assistance to him can be said to have been beyond his control and independent of his volition.
5. Judge Trevaskis heard oral evidence from the appellant, and in his careful and full determination he reached the view that the appellant's account of his history was credible. Also in evidence before him was material relating to the Ein El Hilwa Camp.
6. The camp itself is certainly not a pleasant place to live. 60,000 people are housed in an area of about 1.6 square kilometres. Although UNRWA operates assistance services including schools, health centres and relief officers, the level of what might be regarded specifically as protection is low. In the two-year period up to the appellant's departure in August 2017, UNRWA operations were suspended for approximately 40 (mostly separate) days in total, because of difficulties in delivery. There has been a marked increase in the intensity and frequency of armed violence between different political factions and groups within the camp. There have been deaths and injuries, and destruction of houses and vehicles, as well as shops and schools. We have to bear in mind, however, that the judge considered that the appellant had not established entitlement under article 15(c), and that finding is not the subject of any appeal. In any event, it would no doubt be difficult to establish that the general conditions in the camp were sufficient to meet the requirements of paragraph [65] of El Kott, given the very substantial numbers of people who remain recipients of UNRWA's protection and assistance there. What is therefore of much more importance is the appellant's own history.
7. The principal features of that history are that as a young man he was the subject of rival attempts to recruit him. Fatah started in the summer of 2016. He refused to join and although he was frightened of them and they beat him up at that time, it does not appear that there was any lasting difficulty from them. There was previously an attempt by Gond Al Sham and Shabab Al-Muslim. That was about a year earlier, in the summer of 2015. Again, it is not suggested that his refusal to join either of those groups caused him any lasting difficulty.
8. In the summer of 2015 he was caught up in some fighting and was shot in the foot. In the summer of 2017 there was a battle in the camp, lasting about 20 days in total. It was two or three months after that that the appellant left the camp.
9. On the basis of those facts, Mr McGarvey invited us to say that the appellant's departure was involuntary. The conditions in general were dreadful; and in the appellant's own case he had suffered violence, having been threatened two or three times, and had felt unwilling to leave his house. Further, he had himself suffered injury from gunfire, and had had to experience a lengthy battle around and near his house. Mr Mills' submission was that although the conditions under which the appellant lived were far from pleasant, they did not amount to circumstances which made his leaving the camp something beyond his own control. In particular, he had not felt obliged to leave after either of the recruitment exercises; he had not himself been affected by the battle in 2017, and in any event he had not left until several months after that.
10. We apply the test as set out in El Kott. One of the grounds of appeal is that the judge set out a similar test, not quoting the judgment precisely but from guidance relating to its affect; we do not think anything turns on that, but it any event we go to the judgment. When we look at the appellant's circumstances, and his history, together with his actions, we cannot see a real connection such as to generate the conclusion that his movements were due to circumstances beyond his control. On the contrary: it appears that his departure took place at a time of his choice, and wholly unconnected with any event that might otherwise be regarded as having prompted it.
11. We realise of course that a person who has to flee for safety may not be able to do so immediately. But the position is that the appellant's history essentially relies on events occurring over three successive summers, none of which had any lasting consequences, and which cannot either separately or cumulatively be envisaged as having required him to abandon the assistance and (albeit limited) protection that UNRWA was giving him in the camp. For these reasons we have concluded, like the judge, that the Secretary of State has established that the appellant is excluded from the Convention by article 1D. No other question having been raised before us, we therefore dismiss this appeal. Judge Trevaskis made no error of law, and his decision stands.

Date: 1 July 2019