Decision of 14 May 2019 -
BVerwG 1 C 5.18ECLI:DE:BVerwG:2019:140519B1C5.18.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, decision of 14 May 2019 - 1 C 5.18 - para. 16.

Decision to request a preliminary ruling concerning interpretation of article 12 (1) (a) of Directive 2011/95/EU

Headnotes

A preliminary ruling of the Court of Justice of the European Union is obtained on the following questions in accordance with article 267 TFEU:

1. When assessing the question of whether, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, a stateless Palestinian is no longer granted protection or assistance of the UNRWA, is account to be taken from a geographical perspective solely of the respective field of operation (Gaza Strip, Jordan, Lebanon, Syria, West Bank) in which the stateless person had his or her actual residence upon leaving the area of operations of the UNRWA (in this case: Syria), or also of further fields of operation belonging to the area of operations of the UNRWA?

2. If account is not solely to be taken of the field of operation upon leaving: Is account always to be taken, regardless of further conditions, of all the fields of operation of the area of operations? If not: Are further fields of operation only to be taken into consideration if the stateless person had a substantial (territorial) connection to that field of operation? Is a habitual residence - at the time of or prior to leaving - required for such a connection? Are further circumstances to be taken into consideration when examining a substantial (territorial) connection? If so: Which ones? Does it matter whether it is possible and reasonable for the stateless person to enter the relevant field of operation when leaving the UNRWA area of operations?

3. Is a stateless person who leaves the area of operations of the UNRWA because his or her personal safety is at serious risk in the field of operation of his or her actual residence, and it is impossible for the UNRWA to grant him or her protection or assistance there, entitled, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, ipso facto to the benefits of the Directive even if he or she previously went to that field of operation without his or her personal safety having been at serious risk in the field of operation of his or her former residence and without being able to expect, according to the circumstances at the time of the move, to experience protection or assistance by the UNRWA in the field of operation into which he or she moves and to return to the field of operation of his or her previous residence in the foreseeable future?

4. When assessing the question of whether a stateless person is not to be granted ipso facto refugee status because the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU ceased to apply once he or she left the area of operations of the UNRWA, is account to be taken solely of the field of operation of the last habitual residence? If not: Is consideration also, by analogy, to be given to the areas of which account is to be taken under no. 2 for the time of leaving? If not: Which criteria are to be used to determine the areas which are to be taken into consideration at the time of the decision on the application? Does the cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU require the (state or quasi-state) bodies in the relevant field of operation to be prepared to (re)admit the stateless person?

5. In the event that, in connection with the satisfaction or cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU, the field of operation of the (last) habitual residence is of significance: Which criteria are decisive for establishing habitual residence? Is lawful residence authorised by the country of residence required? If not: Is there at least a need for the conscious acceptance of the residence of the stateless person concerned by the responsible bodies of the field of operation? If so in this respect: Does the presence of the individual stateless person have to be specifically known to the responsible bodies or is the conscious acceptance of residence as a member of a larger group of people sufficient? If not: Is actual residence for a relatively long period of time sufficient in itself?

  • Sources of law
    Asylum ActAsylG, Asylgesetzsections 3 (3) second sentence, 27 (1) and (3), 29 (1) no. 4, section 77 (1)
    Treaty on the Functioning of the European Union (TFEU)article 267
    Geneva Refugee Conventionarticle 1 (D) first and second sentence
    Directive 2011/95/EUarticles 2 (d) and (n), 11 (1) (f), 12 (1) (a) and (b), (2) and (3), 14 (1)

Reasons

I

1

The claimant is seeking the granting of ipso facto refugee status pursuant to section 3 (3) second sentence of the Asylum Act (AsylG, Asylgesetz).

2

The claimant, who, by his own account, was born in Damascus in October 1991, is a stateless Palestinian. According to his own statements, he entered the territory of the Federal Republic of Germany by land in December 2015. At the beginning of February 2016, he lodged an application for asylum. In the course of his hearing, he stated, inter alia, that he performed casual work in Lebanon from October 2013 until 20 November 2015. As he had not obtained the right of residence there and the Lebanese security forces had begun to push "them" back to Syria, he had returned there. Until his departure at the end of November 2015, he had been resident in Q., a Syrian city seven kilometres west of Damascus. His parents and sister still lived there. His father had a window and door production business. Other relatives were resident in Syria. He had left Syria because of the war; the living conditions there were very bad. He feared that he would be arrested if he returned to Syria. By notice dated 29 August 2016, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) granted the claimant subsidiary protection status; with regard to all other aspects it refused his application for asylum.

3

By judgment of 24 November 2016, the Administrative Court (Verwaltungsgericht) obliged the defendant to grant the claimant refugee status. As reasoning, it stated that, independently of any previous persecution, he was at risk of persecution within the meaning of section 3 AsylG due to the current situation in Syria for significant reasons arising sur place because of his departure from Syria, the asylum application and his residence abroad.

4

In the appeal proceedings on points of fact and law, the claimant again filed the photocopy of proof of registration with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), which had already been submitted to the Federal Office on the occasion of his hearing. According to the "Family Registration Card", he was registered as a family member for Yarmouk (the camp in the southern part of Damascus). By judgment of 18 December 2017, the Higher Administrative Court (Oberverwaltungsgericht) dismissed the defendant's appeal on points of fact and law against the judgment of the Administrative Court. As reasoning, it stated in essence that no clarification was required as to whether the claimant could claim refugee status under section 3 (1) AsylG by virtue of his individual submission. It stated that, as a stateless ethnic Palestinian, he was a refugee within the meaning of section 3 (3) second sentence AsylG. The protection of UNRWA extended to the claimant. He also did not fall under the ground for exclusion of the lack of need for protection, as his protection by UNRWA had ceased for reasons which had been beyond his control. His personal safety had been at serious risk when he exited Syria. Due to forces beyond his control, his departure was not to be regarded as voluntary. This was indicated by him being granted subsidiary protection. At the time of his departure, he had also been unable to avail himself of the protection of UNRWA in other parts of its area of operations. Before the claimant exited Syria, Jordan and Lebanon had already closed their borders to Palestinian refugees resident there.

5

As grounds for its appeal on points of law, the defendant stated, inter alia, that it was to be clarified whether application of article 12 (1) (a) second sentence of Directive 2011/95/EU was excluded if a stateless Palestinian being protected or assisted by UNRWA resided for a relatively long period of time in a field of operation of UNRWA other than that in which he had formerly received the relief agency's services and did not seek the protection or assistance of UNRWA in the field of operation of his current residence.

II

6 The legal dispute is to be suspended. In accordance with article 267 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision. These questions concern the interpretation of article 12 (1) (a) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (Directive 2011/95/EU).

7 1. In national law, the legal assessment is based on the Asylum Act in the version promulgated on 2 September 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798), last amended by article 1 of the Act of 4 December 2018 that entered into force on 12 December 2018 (BGBl. I p. 2250), AsylG. According to section 77 (1) first sentence, first half-sentence AsylG, in disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing; the provisions, that are decisive here, have not changed since the decision of the Higher Administrative Court.

8 The following provisions of national law are hence the decisive legal framework for the legal dispute:
Section 3 AsylG
(1) A foreign national is a refugee as defined in the Convention relating to the Status of Refugees of 28 July 1951 (BGBl. 1953 II, p. 559, 560) if he or she,
1. owing to well-founded fear of persecution in his or her country of origin on account of his or her race, religion, nationality, political opinion or membership of a particular social group,
2. resides outside the country (country of origin)
a) whose nationality he or she possesses and the protection of which he or she cannot, or, owing to such fear does not want to avail himself or herself of, or
b) where he or she used to have his or her habitual residence as a stateless person and where he or she cannot, or, owing to said fear, does not want to return.
(...)
(3) Nor shall a foreign national be a refugee under subsection 1 if he or she enjoys the protection or assistance of an organisation or institution of the United Nations, with the exception of the United Nations High Commissioner for Refugees under article 1 (D) of the Convention relating to the Status of Refugees. Subsections 1 and 2 shall apply if such protection or assistance is no longer provided, without having finally clarified the situation of those affected in accordance with the relevant resolutions of the General Assembly of the United Nations.
Section 27 AsylG
(1) A foreign national who was already safe from political persecution in another third country shall not be granted asylum status.
(...)
(3) If before entering the federal territory, a foreign national lived for more than three months in another third country where he or she is not threatened by political persecution, it shall be presumed that he or she was safe there from political persecution. This shall not apply if the foreign national provides plausible evidence that deportation to another country where he or she is threatened by political persecution could not be ruled out with reasonable certainty.
Section 29 AsylG
(1) An application for asylum shall be inadmissible if (...)
4. a country that is not an EU Member State and is willing to readmit the foreign national is regarded as another third country within the meaning of section 27 (...)
Section 77 AsylG
(1) In disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing; if the decision is taken without oral hearing, it shall be based on the situation at the time the decision is taken. (...)

9 2. The questions referred are relevant for the decision and require clarification by the Court of Justice.

10 2.1. The questions referred are relevant for the decision.

11 a) The claimant's asylum application is not inadmissible pursuant to section 29 (1) no. 4 AsylG. That would only be the case if a country that is not an EU Member State and is willing to readmit the foreign national is regarded as another third country within the meaning of section 27 AsylG. In accordance with section 27 (1) AsylG, a foreign national who was already safe from political persecution in another third country shall not be granted asylum status. If, before entering the federal territory, a foreign national lived for more than three months in another third country where he or she is not threatened by political persecution, it shall be presumed according to section 27 (3) first sentence AsylG that he or she was safe there from political persecution. With section 29 (1) no. 4 in conjunction with section 27 AsylG, the German legislature implemented the procedural concept of first country of asylum under article 35 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection - Directive 2013/32/EU (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 4 September 2012 - 10 C 13.11 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 144, 127 para. 16). The ground of inadmissibility under section 29 (1) no. 4 AsylG is to be examined if there are relevant indications in the court asylum proceedings even if it has not been considered in the administrative procedure before the Federal Office for Migration and Refugees and the Office refused, wholly or partially, the application for recognition of international protection following an examination of the merits of the case (see BVerwG, judgment of 25 April 2019 - 1 C 28.18 - para. 13). In such a case, it is for the court responsible for finding the facts, if it considers it necessary, to conduct a personal interview with the applicant to examine whether the conditions of the ground of inadmissibility are fulfilled (see Court of Justice of the European Union (CJEU), judgment of 25 July 2018 - C-585/16 [ECLI:EU:C:2018:584], Alheto - para. 127).

12 "Another third country" within the meaning of section 29 (1) no. 4 in conjunction with section 27 AsylG or "first country of asylum" within the meaning of article 35 of Directive 2013/32/EU can only be a state whose territory is separate from that of the claimant's habitual residence (see BVerwG, judgment of 25 April 2019 - 1 C 28.18 - para. 14; CJEU, judgment of 25 July 2018 - C-585/16 - para. 141) and in which he resided after leaving the state of his habitual residence.

13 The Court of Appeal did not establish any factual findings as to the claimant's last place of habitual residence. Ultimately, this is irrelevant to the decision, however. The ground of inadmissibility does not apply, regardless of whether the claimant's last habitual residence was in Syria or Lebanon. If the claimant's last place of habitual residence before leaving UNRWA's area of operations was Lebanon, where, by his own account, he resided from October 2013 to November 2015, this country, as his state of habitual residence, would not be a third country. Syria could also not be considered to be such a third country - notwithstanding the fact that the claimant stayed there only a short time - since even if the claimant had not faced the threat of persecution in Syria at that time, acceptable living conditions were not guaranteed there at the end of November 2015 on account of the warlike conditions. If, on the other hand, the claimant's last habitual residence had been in Syria, Lebanon would be excluded as another third county within the meaning of section 29 (1) no. 4 in conjunction with section 27 AsylG and as first country of asylum within the meaning of article 35 of Directive 2013/32/EU, as the claimant no longer resided in Lebanon after his departure from Syria at the end of November 2015.

14 b) The application for the granting of ipso facto refugee status would be successful on the merits if the conditions of article 1 (D) first and second sentences of the Convention relating to the Status of Refugees of 28 July 1951, promulgated by the Act of 1 September 1953 (BGBl. II p. 559, which entered into force on 22 April 1954, in accordance with the promulgation of the Federal Minister for Foreign Affairs of 25 May 1954 (BGBl. II p. 619), - Geneva Refugee Convention -, of article 12 (1) (a) first and second sentences of Directive 2011/95/EU and/or of section 3 (3) first and second sentences AsylG are satisfied and grounds for exclusion within the meaning of article 1 (E) and (F) of the Geneva Refugee Convention, article 12 (1) (b), (2) and (3) of Directive 2011/95/EU and section 3 (2) AsylG do not apply.

15 Pursuant to article 1 (D) first sentence of the Geneva Refugee Convention, 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 in accordance with article 1 (D) second sentence of the Geneva Refugee Convention. The exclusion clause of article 1 (D) first sentence of the Geneva Refugee Convention and the inclusion clause of article 1 (D) second sentence of the Geneva Refugee Convention form a unit in the sense that the Geneva Refugee Convention only applies if the constituent elements of both subsections of the provision are met (BVerwG, judgment of 4 June 1991 - 1 C 42.88 - BVerwGE 88, 254 <260 et seq.>). Article 1 (E) and (F) of the Geneva Refugee Convention regulate the other cases where the Convention does not apply.

16 Pursuant to article 12 (1) (a) first sentence of Directive 2011/95/EU, a third-country national or a stateless person is excluded from being a refugee if he or she falls within the scope of article 1 (D) of the Geneva Refugee Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, those persons shall ipso facto be entitled to the benefits of this Directive under article 12 (1) (a) second sentence of Directive 2011/95/EU. Article 12 (1) (a) of Directive 2011/95/EU contains, first, a ground for exclusion, to the effect that any third-country national or stateless person receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commission for Refugees is to be excluded from being a refugee in the European Union, and secondly, a ground for no longer applying that ground for exclusion, to the effect that, when such protection or assistance has ceased without the position of that national or stateless person being definitively settled in accordance with the relevant resolutions adopted by the United Nations, that national or stateless person is ipso facto to be entitled to receive protection under the Directive to be recognised as a refugee in the European Union (CJEU, judgment of 25 July 2018 - C-585/16 - para. 87 and 92). Article 12 1 (b), (2) and (3) of Directive 2011/95/EU specify further grounds for the exclusion of a stateless person from recognition as a refugee.

17 Section 3 (3) AsylG transposes article 12 (1) (a) of Directive 2011/95/EU into national law.

18 aa) There are no grounds for exclusion in respect of the claimant within the meaning of article 12 (1) (b) and (2) and (3) of Directive 2011/95/EU.

19 bb) He also fulfils the conditions of the exclusion clause of article 12 (1) (a) first sentence of Directive 2011/95/EU.

20 (1) UNRWA constitutes one of the organs and agencies of the United Nations referred to in the specified provisions. The Relief and Works Agency was created in the light of the specific situation of Palestinian refugees in need of protection and assistance (CJEU, judgment of 17 June 2010 - C-31/09 [ECLI:EU:C:2010:351], Bolbol - para. 44). Its mandate was extended most recently to 30 June 2020.

21 (2) The specific meaning of the alternative forms of care of "protection" and "assistance" is determined according to the activity of UNRWA performed in the scope of its remit. It is decisive whether the person concerned belongs to the group of people in the care of UNRWA in accordance with its mandate. That is at least the case for those persons who - like the claimant here - are (still) registered with UNRWA as Palestinian refugees. This understanding corresponds to the spirit and purpose of the exclusion clause, which is intended to guarantee that Palestinian refugees are looked after primarily by UNRWA and not the states party, particularly the Arab states. Accordingly, Palestinian refugees are required primarily to avail themselves of protection or assistance provided by UNRWA. This purpose would not be met if registered Palestinian refugees were not covered by the exclusion clause as long as they did not actually avail themselves of UNRWA's services although they would be entitled to do so if the corresponding need existed. It would then be largely a matter for them to decide themselves, contrary to the above-mentioned specification of purpose of the states party, whether they were looked after by UNRWA or claimed the benefits of the Convention (BVerwG, judgments of 4 June 1991 - 1 C 42.88 - BVerwGE 88, 254 <261> and of 21 January 1992 - 1 C 21.87 - BVerwGE 89, 296 <305>).

22 Only those persons who actually have availed themselves of the assistance provided by UNRWA come within the exclusion clause. The provisions concerned must be construed narrowly and therefore cannot also cover persons who are or have been eligible to receive protection or assistance of this agency but who do not make use of this right. Registration with UNRWA is deemed to be sufficient proof of actually receiving protection or assistance (CJEU, judgment of 17 June 2010 - C-31/09 - para. 51 f.; Opinion of the Advocate General of 4 March 2010 - C-31/09 - para 99). The ground for excluding a person from being a refugee covers not only persons who are currently availing themselves of assistance provided by UNRWA but also those who in fact availed themselves of such assistance shortly before submitting an application for asylum in a Member State (CJEU, judgment of 19 December 2012 - C-364/11 [ECLI:EU:C:2012:826], El Kott and Others - para. 52).

23 The claimant availed himself of the protection or assistance of UNRWA shortly before submitting his application for asylum, as, according to his "Family Registration Card" that he submitted as a photocopy, he was registered as a family member for Yarmouk (the camp in the southern part of Damascus).

24 cc) By contrast, the referring Court is not able to assess whether the claimant personally satisfies the conditions of the inclusion clause of article 12 (1) (a) second sentence of Directive 2011/95/EU (see also article 1 (D) second sentence of the Geneva Refugee Convention and section 3 (3) second sentence AsylG) without clarification of the questions raised in the operative part of this decision.

25 (1) It is accepted that the position of the persons receiving assistance from UNRWA has not to date been definitely settled (see, inter alia, paragraphs 1 and 3 of United Nations General Assembly Resolution No. 66/72 of 9 December 2011; CJEU, judgment of 19 December 2012 - C-364/11 - para. 54).

26 (2) The inclusion clause serves to prevent gaps in protection. Accordingly, there is no further scope for the fundamental exclusion from being recognised as a Convention refugee in the European Union when an applicant for international protection in the Union no longer receives protection or assistance from UNRWA. This can be assumed where it becomes evident, based on an assessment, on an individual basis, of all the relevant evidence, that the personal safety of the stateless Palestinian concerned is at serious risk and that it is impossible for UNRWA, whose assistance was requested by that person, to guarantee that the living conditions of that individual would be compatible with its mission, and that person is forced to leave the UNRWA area of operations owing to circumstances beyond his or her control. In that case, that Palestinian may, unless he or she falls within the scope of any of the grounds for exclusion set out in article 12 (1) (b), (2) or (3) of Directive 2011/95/EU, ipso facto be entitled to the benefits of that Directive, without necessarily having to demonstrate a well-founded fear of being persecuted, within the meaning of article 2 (d) of Directive 2011/95/EU, until the time when he or she is able to return to the territory of former habitual residence (CJEU, judgments of 19 December 2012 - C-364/11 - para. 49 to 51, 58 to 65, 75 to 77 and 81 and of 25 July 2018 - C-585/16 - para. 86).

27 For the purpose of determining whether assistance or protection have actually ceased within the meaning of that provision of Directive 2011/95/EU, it is for the competent national authorities and courts to ascertain whether the departure of the person concerned may be justified by reasons beyond his or her control and independent of his or her volition which force him or her to leave the area in question and thus prevent him or her from receiving UNRWA assistance (CJEU, judgment of 19 December 2012 - C-364/11 - para. 61).

28 2.2 In accordance with what has been stated above, the questions referred require clarification by the Court of Justice.

29 In the scope of the assessment of whether such protection or assistance in the sense of article 12 (1) (a) second sentence of Directive 2011/95/EU has ceased for any reason, the referring Court is of the opinion that a distinction is to be made between the time of leaving the area of operations of UNRWA and the material time under section 77 (1) first sentence AsylG. It also makes a distinction between the field of operation where the stateless Palestinian had his actual place of residence or his last habitual place of residence after leaving UNRWA's area of operations, and other fields of operation to which the person concerned has a substantial connection, not necessarily through an earlier stay there. The referring Court makes a conceptual distinction between, on the one hand, the area of operations of UNRWA (see UNRWA, CERI VII.C.), as the entirety of the fields of operation and, on the other hand, the individual fields of operation (see UNRWA, CERI VII.E.), including the Gaza Strip, the West Bank, Jordan, Lebanon and Syria.

30 a) With the first question referred, the referring Court would like to know whether, when assessing the satisfaction of the conditions of the inclusion clause of article 12 (1) (a) second sentence of Directive 2011/95/EU - and of article 1 (D) second sentence of the Geneva Refugee Convention and of section 3 (3) second sentence AsylG - at the time of leaving the area of operations of UNRWA, from a geographical perspective, only the field of operation of the last actual residence of the stateless person concerned is relevant or whether further fields of operation are also to be included in the consideration in this respect.

31 When assessing the question of whether a stateless Palestinian is no longer granted UNRWA protection or assistance, the referring Court is of the opinion that account is to be taken not solely of the respective field of operation in which the stateless person had his or her actual residence when he or she left the area of operations of UNRWA, but also, depending on the overall circumstances of the individual case, of further fields of operation belonging to the area of operations of UNRWA.

32 The granting of protection and assistance at the time of departure from UNRWA's area of operations will generally be judged primarily on the basis of living conditions in the field of operation of the stateless person's last actual place of residence.

33 b) In such case as the Court of Justice answers the first question referred in the spirit of its second alternative, the questions referred under no. 2 aim to clarify the conditions under which further fields of operation are to be included in the assessment of the satisfaction of the conditions of the inclusion clause of article 12 (1) (a) second sentence of Directive 2011/95/EU, insofar as the entire area of operations is not to be the general basis of the assessment in any case.

34 In the opinion of the referring Court, the questions referred under no. 2 are to be answered such that, in addition to the field of operation of the last actual residence, consideration is to be given to those fields of operation to which the stateless person had a substantial connection before leaving the area of operations of UNRWA.

35 A stateless Palestinian may only be referred to the guarantee of protection or assistance in a field of operation other than that of the last actual residence if he or she has such a substantial connection to that field. In the view of the referring Court, such a connection may be based on the person himself or herself having previously resided in that field, but it may also be linked to other circumstances, such as close relatives residing there. It must also be possible and reasonable for the stateless Palestinian to enter that field of operation and reside therein. The entry permit is subject to the law of the respective field of operation. While the status of "Palestinian Refugee in the Near East" is not linked with a specific field of operation and a stateless Palestinian registered in one field of operation is also entitled to request protection and assistance from UNRWA in another field of operation, it is not discernible that the responsible bodies of the respective state and autonomous territories have any obligation under international law or see themselves as under any obligation to allow every stateless Palestinian registered with UNRWA residing in another UNRWA field of operation to enter and reside in its territory. The "Registration Card" issued by UNRWA to eligible persons only entitles them to receive UNRWA services, but does not make any statement on the card holder's residence status. It does not entitle the holder to enter into one UNRWA field of operation from another. In principle, under the general principles of international law, entering another field of operation requires a travel document and the entry permit of the responsible bodies of the accepting state or autonomous territory (see BVerwG, judgment of 4 June 1991 - 1 C 42.88 - BVerwGE 88, 254 <265>). Subsequently taking up residence is also subject to their permission (on the above, see also UNRWA, CERI no. IV.F.3.). In the case of territories to which the person concerned had no personal connection at any time, the likelihood of him or her fulfilling these entry and residence conditions is so remote, that, in the view of the referring Court, such territories do not have to be included in the consideration. However, the Court of Justice's case-law could indicate that the entire area of operations is always of relevance, regardless of secured actual accessibility, because actual granting of protection or assistance in the area of operations of UNRWA thereafter is sufficient and the term of the area of operations - at least in the "Alheto" judgment - is used in the sense of the entire transnational area of operations (see CJEU, judgment of 25 July 2018 - C-585/16 - para. 7, 131 et seqq., and albeit conceptually less clear CJEU, judgment of 19 December 2012 - C-364/11 - para. 77). The referring Court therefore questions whether its interpretation of the Directive is correct. In this connection, it may also be necessary to clarify whether an at least current or former habitual residence in the (further) field of operation is a condition for a stateless Palestinian being able to call on UNRWA protection or assistance there. It is reasonable for the person concerned to enter into and reside in the reference area provided, first, that he or she is guaranteed to be able to be readmitted to that field of operation, second, that he or she actually benefits there from effective protection or assistance from UNRWA, which is at least recognised by the competent bodies and, third, that he or she can expect to be able to stay in this field of operation in safety under dignified living conditions for as long as necessary in view of the risks in the field of operation of his or her last actual residence (see - on the conditions of article 35 of Directive 2013/32/EU - CJEU, judgment of 25 July 2018 - C-585/16 - para. 140).

36 c) The third question referred serves for clarification as to whether the assumption of the satisfaction of the conditions of the inclusion clause of article 12 (1) (a) second sentence of Directive 2011/95/EU is subject to restrictions in the case of location changes between the various fields of operation.

37 The case-law of the Court of Justice makes it clear that mere absence from UNRWA's area of operations or a voluntary decision to leave it is not to be regarded as cessation of protection or assistance (CJEU, judgment of 19 December 2012 - C-364/11 - para. 49 et seqq. and 59).

38 In the opinion of the referring Court, the third question referred is to be answered to the effect that the exclusion from being recognised as a refugee established in article 12 (1) (a) first sentence of Directive 2011/95/EU also applies to a stateless person who leaves the area of operations of UNRWA because his or her personal safety is at serious risk in the field of operation of his or her actual residence and it is impossible for UNRWA to grant him or her protection or assistance there if he or she moved to that field of operation without a compelling reason, even though his or her personal safety was not at serious risk in the field of operation of his or her former residence and he or she was also not able to expect, according to the circumstances at the time of the move, to experience protection or assistance by UNRWA in the receiving field of operation and to be allowed to return to the field of operation of his or her former residence in the foreseeable future.

39 Anyone departing without specific needs and knowingly from a field of operation where he or she is allowed to stay in safety and where UNRWA grants sufficient protection or assistance, and going to another field of operation where the granting of protection or assistance is not guaranteed and from where a return is not possible in the foreseeable future could be deemed to be a person to be treated as one who voluntarily renounces the protection or assistance provided by UNRWA (see CJEU judgment of 19 December 2012 - C-364/11 - para. 51). In such a constellation, exclusion from recognition as a refugee provided for in article 1 (D) first sentence of the Geneva Refugee Convention, article 12 (1) (a) first sentence of Directive 2011/95/EU and section 3 (3) first sentence AsylG cannot cease since the decision to leave the area of operations is not attributable to a situation of coercion unconnected with the will of the person concerned (see CJEU, judgment of 19 December 2012 - C-364/11 - para. 59).

40 d) The questions referred under no. 4 are intended to clarify whether, when assessing the satisfaction of the conditions of the inclusion clause of article 12 (1) (a) second sentence of Directive 2011/95/EU - and also those of article 1 (D) second sentence of the Geneva Refugee Convention and of section 3 (3) second sentence AsylG - at the material time of decision, from a geographical perspective, account is to be taken solely of the field of operation of the last habitual residence of the stateless person concerned or whether further fields of operation are to be included in the consideration in this respect. The question may arise as to the criteria determining the inclusion of such further fields of operation.

41 For the granting of refugee status under article 12 (1) (a) second sentence of Directive 2011/95/EU, it is not sufficient that the person concerned was no longer granted the protection or assistance of UNRWA when he or she left the area of operations. In addition, it must also be impossible for him or her, at the time of the last oral hearing or decision of the court responsible for finding the facts that is relevant under section 77 AsylG, to return to the area of operations and again receive the protection or assistance of UNRWA. This is because, under article 11 (1) (f) in conjunction with article 14 (1) of Directive 2011/95/EU, refugee status ceases and is to be withdrawn or revoked if the person concerned is able to return to the UNRWA area of operations in which he or she was formerly habitually resident because the circumstances which led to that person qualifying as a refugee no longer exist (see CJEU, judgment of 19 December 2012 - C-364/11 - para. 77). The conclusion to be drawn from this is that the possibility to return to the UNRWA area of operations has to be taken into account already when deciding on recognition of refugee status because it would not make sense to recognise refugee status if it immediately had to be withdrawn again ((...); see also CJEU, judgment of 25 July 2018 - C-585/16 - para. 110 et seqq.).

42 According to article 2 (n) of Directive 2011/95/EU, the "country of origin" of stateless persons within the meaning of this Directive is the country of former habitual residence. The jurisprudence of the referring Court clarified accordingly that a judgment on the existence of a well-founded fear of being persecuted is to be based on the country of former habitual residence (see BVerwG, judgment of 26 February 2009 - 10 C 50.07 - BVerwGE 133, 203 para. 30 inter alia on article 2 (c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted).

43 In the view of the referring Court, the geographical basis of the assessment is to be primarily the field of operation of the last country of former habitual residence, also with reference to the assessment of whether the conditions of the inclusion clause of article 12 (1) (a) second sentence of Directive 2011/95/EU continue to be satisfied at the material time under section 77 (1) first sentence AsylG (see also CJEU, judgment of 19 December 2012 - C-364/11 - para. 77).

44 The referring Court is also inclined to assume that, when examining the continued application of the conditions of the inclusion clause, account is also to be taken, in addition to the field of operation of the last habitual residence, of those fields of operation to which the stateless person concerned has a substantial connection. Such a connection may possibly already be established through an actual, but not (yet) habitual residence. However, it may also be based on other circumstances such as close relatives residing in that field of operation. It must be possible and reasonable for the person concerned to take up residence there. In this respect, reference is made to the statements concerning (b) above.

45 e) The questions referred under no. 5 are intended to clarify the meaning of the term of habitual residence, which may be of significance for examining the satisfaction of the conditions of the inclusion clause of article 12 (1) (a) second sentence of Directive 2011/95/EU, depending on the response to the above questions referred.

46 In connection with the questions referred under point 5, the referring Court is inclined to take the view that, in this context too, the assumption of a (last) habitual residence solely requires that the stateless person has actually found the focal point of his or her life in the field of operation concerned, that is to say is not just temporarily staying there, and the competent authorities have not taken any removal measures against him or her. It is not necessary for the residence to also be lawful (in this sense concerning section 3 (1) of the Asylum Procedure Act (AsylVfG, Asylverfahrensgesetz), BVerwG, judgment of 26 February 2009 - 10 C 50.07 - BVerwGE 133, 203 para. 31 et seqq.).

47 According to national jurisdiction, it is a condition for the term of habitual residence (résidence habituelle), as used, inter alia, in article 1 (A) no. 2 second half-sentence of the Geneva Refugee Convention and article 2 (d) and (n) of Directive 2011/95/EU, that the person lives in the country concerned not just temporarily, but for an unforeseeable length of time and termination of the residence is therefore uncertain (BVerwG, judgment of 23 February 1993 - 1 C 45.90 - BVerwGE 92, 116 <123 et seq.>). The objective circumstances of the residence must indicate a certain consistency and regularity, although unbroken continuity is not required. The person must have the centre of his or her existence at the place of habitual residence.

48 The determination of a habitual residence does not necessarily require formal authorisation of the residence by the body competent for this. Unlike lawful residence, which is to be distinguished from habitual residence, the latter is deemed to exist in the view of the referring Court even if the body competent and responsible for the stateless person refrains from ending his or her residence, notwithstanding its legal possibility to do so (BVerwG, judgments of 23 February 1993 - 1 C 45.90 - BVerwGE 92, 116 <125> and of 26 February 2009 - 10 C 50.07 - BVerwGE 133, 203 para. 32 et seq.).

49 The referring Court sees a need for clarification concerning the question of whether its definition of the country of habitual residence, taken inter alia from national law, also corresponds to the term "habitual residence" under EU law in the Directive (see article 2 (d) and (n) of Directive 2011/95/EU) and the extent to which, according to the Directive, it then depends on the further aspects addressed in the questions referred.

50 The determination of habitual residence may require a factual prognosis in the context of a comprehensive overall view which, in addition to the ideas of the person concerned, takes into significant account the objective circumstances of the residence, allowing the conclusion to be drawn that the residence was for a lengthy period.

51 3. With a view to the reasons for the decision in case C-272/19 of the Wiesbaden Administrative Court of 28 March 2019 - 6 K 1016/15, the Senate sees no cause to doubt its entitlement to request a preliminary ruling pursuant to article 267 TFEU.