Judgment of 25 April 2019 -
BVerwG 1 C 28.18ECLI:DE:BVerwG:2019:250419U1C28.18.0
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. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 25 April 2019 - 1 C 28.18 - para. 16.
Review of grounds of inadmissibility in asylum law also has priority in actions for enhancement of subsidiary protection status
1. If there are indications to believe that an application for asylum is inadmissible pursuant to section 29 (1) no. 2 to 5 AsylG, an administrative court may grant an action for a grant of international protection only if the requirements of the ground of inadmissibility in question are absent. This applies even if the Federal Office for Migration and Refugees has decided on the merits of the application.
2. The ground of inadmissibility provided in section 29 (1) no. 4 and section 27 AsylG (safety elsewhere in another third country) implements the concept of the "first country of asylum" under EU law within the meaning of Directive 2013/32/EU. It provides that an application for asylum is inadmissible if the country under consideration is not an EU Member State and differs from the country of origin of the person concerned (for stateless persons: the country of habitual residence), and if that country is willing to readmit the person concerned and confers safety on that person in conformity with the requirements of section 27 AsylG in conjunction with article 35 of Directive 2013/32/EU.
Sources of law
Asylum Act AsylG, Asylgesetz sections 3 (1) and (3), 27, 29 (1) no.4 and (2) Directive 2013/32/EU articles 33 (2) (b), 34 (1), 35, 46 (3) Directive 2011/95/EU articles 2 (d), 11 (1) (f), 12 (1) (a), 14 (1), 15 Geneva Refugee Convention article 1 (A) and (D)
Summary of the facts
The claimant is a stateless Palestinian, originally coming from Syria, and seeks granting of refugee status.
The claimant, born in July 1998 in Aleppo, Syria, entered the Federal Republic of Germany in November 2015 and applied for asylum in January 2016. At his hearing with the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) he stated, among other things, that until leaving Syria he had lived at the Nairab refugee camp in Aleppo. On 1 September 2014, he and his brother had emigrated illegally to Turkey, where he lived for about one year. He left Syria primarily for fear of being conscripted to the military service. He had also been among the witnesses when a military aircraft was shot down by the "IS" and crashed into the camp.
In a notice of 7 September 2016, the Federal Office granted the claimant subsidiary protection status, and rejected his further application for asylum. In its reasons, it stated that, by itself, fear of the Assad regime and of being conscripted to the military service did not establish a persecution that was relevant under asylum or refugee law.
The Administrative Court (Verwaltungsgericht) ordered the defendant to grant refugee status because in view of the current situation in Syria, the claimant was threatened with persecution that was relevant under asylum law because of his leaving the country, his application for asylum, and his residence abroad, which the Syrian state interpreted as an expression of an attitude opposing the regime.
In the appeal proceedings on points of fact and law, the claimant, submitting a registration card from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (hereinafter UNRWA) for the Nairab camp near Aleppo, additionally asserted that the requirements for granting of refugee status were met because of his flight from a UNRWA-managed camp for Palestinians.
In a judgment of 16 May 2018, the Higher Administrative Court (OVG, Oberverwaltungsgericht) dismissed the defendant's appeal on points of fact and law. It held that ultimately the Administrative Court had rightly granted the claimant refugee status because as a stateless Palestinian he was a refugee within the meaning of section 3 (3) second sentence of the Asylum Act (AsylG, Asylgesetz). The Court stated that in accordance with the case-law of the Court of Justice of the European Union (CJEU, hereinafter Court of Justice), stateless Palestinians from Syria who are registered with UNRWA are to be recognised ipso facto as refugees under section 3 (3) second sentence AsylG if they have left Syria because of the destruction of their refugee camp owing to events of the civil war, and if at the time of their emigration they had no way of finding protection elsewhere within the area of operations of the UNRWA. The Court ruled that a respective registration card constituted proof that a stateless Palestinian had received UNRWA's protection or assistance in his country of origin, Syria. His departure had been justified by reasons independent from his own will, which compelled him to leave the territory and thus prevented him from availing himself of the assistance conferred by UNRWA. He was in a position where his safety was at serious risk, the Court held; and it was impossible for UNRWA to guarantee him living conditions in that area that were commensurate with the agency's mission. The Court found that it did not need to be decided whether this situation was already implicit in the grant of subsidiary protection, because it was substantively documented by a press report that described in more detail the situation in the Nairab camp during the time shortly after the claimant's departure from the country. The claimant also had no way, at the time of his emigration from Syria, to claim protection from UNRWA elsewhere in the area of operations. Both Jordan and Lebanon had closed their borders to Palestinian refugees from Syria. The claimant also could not have availed himself of UNRWA's protection at another refugee camp within Syria, the Court found. According to information from UNRWA, there was no safe possibility of access to numerous refugee camps, including Yarmouk, Sbeineh, Khan Eshieh, Ein El Tal, Dara'a and Husseiniyeh. The status of information also indicated no decisive improvements regarding the Nairab camp.
In its appeal on points of law, the defendant claims a violation of section 3 (3) AsylG. It argues that the ipso facto grant of refugee status provided there applies only when protection from the UN organisation has entirely ceased. What was required was a sound finding that protection or assistance from UNRWA was not and would not be provided any longer, nationwide and lastingly, either in the rest of the area of operations or with reference to Syria, i.e., most notably taking into account the circumstances induced by the civil war there. The defendant argues that there was no complete, lasting, nationwide cessation of protection or assistance, because according to the findings of the Court of Appeal, UNRWA continues to be active in Syria despite the long-lasting situation of civil war. The Court of Appeal made no findings of circumstances interfering with UNRWA's activity beyond impediments induced by civil war; the assumption of a cessation of activity at the time of the claimant's departure was furthermore contradicted, according to the defendant, by findings from other proceedings according to which, in any case until 2015, support benefits had been regularly provided at the Nairab refugee camp. In any case, with reference to the time of return, the defendant maintains that the Court of Appeal dealt only with the Nairab camp, but made no findings that the claimant could not at least have obtained protection or assistance from UNRWA elsewhere in Syria. Finally, the defendant argues, the claimant's one-year residence in Turkey after leaving Syria raised the question of whether his case might even be decided at all on the principles of article 12 (1) (a) of Directive 2011/95/EU and section 3 (3) AsylG. In a context of asylum or refugee law, the defendant maintains, the case of stateless persons should be decided on the basis of their last country of habitual residence prior to entering the federal territory. But this had obviously been Turkey, to which UNRWA's mandate does not extend.
The claimant defends the contested judgment.
9 The defendant's appeal on points of law is well-founded. The contested judgment violates federal law (section 137 (1) Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)), because the Higher Administrative Court ordered the defendant to grant the claimant refugee status without examining whether the asylum application was already inadmissible under section 29 (1) no. 4 AsylG (safety elsewhere in another third country) (1.). As factual findings by the Higher Administrative Court are necessary in order to assess the question of whether this ground of inadmissibility is present, the legal dispute was to be remitted for further inquiry into the facts (section 144 (3) first sentence no. 2 VwGO) (2.).
10 The legal assessment of a request for the issuance of an administrative act (Verpflichtungsbegehren) is governed by the Asylum Act, in its latest version (currently: the version promulgated on 2 September 2008 <Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798>, last amended by the Third Act Amending the Asylum Act (Drittes Gesetz zur Änderung des Asylgesetzes) of 4 December 2018 <BGBl. I p. 2250>, which entered into force on 12 December 2018, while the appeal proceedings on points of law were in progress). Since the present case concerns a dispute under asylum law where the court responsible for finding the facts regularly had to refer to the factual and legal situation at the time of the last oral hearing or the decision pursuant to section 77 (1) AsylG, it would have to base a decision on the changes that went into force while the appeal proceedings on points of law were in progress if it were to decide on the matter now, unless a derogation is required for reasons of substantive law. However, the provisions relevant here have not changed since the decision of the Higher Administrative Court. Under EU law, the procedural rules to be applied are to be based on 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 (OJ L 180 p. 60), because the claimant lodged his application after 20 July 2015 (article 52 (1) of Directive 2013/32/EU); in substantive terms, the applicable legislation is 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 (OJ L 337 p. 9, amended OJ L 167 p. 58).
11 1. The contested decision violates section 29 (1) no. 4 AsylG because the Court of Appeal ordered the Federal Office to grant refugee status without previously clarifying whether the claimant's asylum application was inadmissible under section 29 (1) no. 4 AsylG. There would have been reason to do so in view of the claimant's intermediate residence of about one year in Turkey, adduced by the claimant himself and mentioned in the facts of the judgment on the appeal on points of fact and law.
12 1.1 Pursuant to section 29 (1) no. 4 AsylG, an application for asylum is inadmissible 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. Section 27 AsylG concerns safety from persecution in "another third country", meaning, in the terminology of the Asylum Act, a state outside the European Union. 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 with political persecution, it is to be presumed that he or she was safe there from political persecution, unless the foreign national provides plausible evidence that deportation to another country where he or she is threatened by political persecution cannot be ruled out with reasonable certainty (section 27 (3) AsylG). This provision was originally interpreted in jurisprudence as the expression of a substantive-law based subsidiarity of refugee protection (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 8 February 2005 - 1 C 29.03 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 122, 376 <386 et seq.>). Even while Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ L 326 p. 13) was still in force, and before section 29 of the Asylum Procedure Act (AsylVfG, Asylverfahrensgesetz) - previously configured as an irrelevance provision - was revised to make it an inadmissibility provision, the Federal Administrative Court had considered section 29 AsylVfG as an implementation of the procedural concept of the first country of asylum pursuant to article 25 (2) (b) in conjunction with article 26 of Directive 2005/85/EC (equivalent to current article 33 (2) (b) in conjunction with article 35 of Directive 2013/32/EU). Thus there was no longer any room for a substantive-law principle of subsidiarity of refugee protection (see BVerwG, judgment of 4 September 2012 - 10 C 13.11 - BVerwGE 144, 127 para. 16).
13 1.2 Review of this ground of inadmissibility in a court proceeding is not opposed by the fact that the Federal Office decided on the merits of the claimant's application for asylum (and indeed, in the present case partly granted the status he applied for) without recognisably dealing with grounds of inadmissibility. On the contrary, even in such a case an administrative court may grant an action for a grant of refugee status only if none of the (genuine) grounds of inadmissibility under section 29 (1) no. 2 to 5 AsylG is present (thus already decided by BVerwG, judgment of 15 January 2019 - 1 C 15.18 - (...); dissenting opinion, Mannheim Higher Administrative Court (Verwaltungsgerichtshof), judgment of 14 June 2017 - A 11 S 511/17 - (...)). As these are points of mandatory law, their requirements must be examined ex officio prior to any decision granting an application. This is consistent with the case-law of the Court of Justice of the European Union on the scope of judicial review required under the Asylum Procedures Directive. Accordingly, article 46 (3) of Directive 2013/32/EU in conjunction with article 47 of the Charter of Fundamental Rights of the European Union (CFR) must be interpreted as meaning that the requirement for a full and ex nunc examination of the facts and points of law may also concern the grounds of inadmissibility of the application for international protection referred to in article 33 (2) of that Directive, where permitted under national law (see CJEU, judgment of 25 July 2018 - C-585/16 [ECLI:EU:C:2018:584], Alheto - para. 119 et seqq., 130). As the Court of Justice further noted, the statutory requirement to conduct a personal interview of the foreign national concerning grounds of inadmissibility before applying them (article 34 (1) first subparagraph of Directive 2013/32/EU, implemented by section 29 (2) AsylG) also does not impede a court from examining grounds of inadmissibility for the first time. If the court sees a reason to question the admissibility of the application for asylum for the first time, this interview is instead to be replaced by a personal hearing of the claimant in court. For that hearing, where necessary the court must engage the services of an interpreter (pursuant to the requirement of article 12 (1) (b) of Directive 2013/32/EU for personal interviews by the asylum authority) (see CJEU, judgment of 25 July 2018 - C-585/16 - para. 127 et seq.).
14 1.3 One requirement for inadmissibility under section 29 (1) no. 4 AsylG is that the state under consideration must in fact be a third country. A third country under sections 29 (1) no. 4 and 27 AsylG, or a "first country of asylum" under articles 33 (2) (b) and 35 of Directive 2013/32/EU, may only be a country that differs from the individual's country of origin (see also CJEU, judgment of 25 July 2018 - C-585/16 - para. 141). In the case of stateless persons, the country of origin is the country of their former habitual residence (section 3 (1) no. 2 (b) AsylG; see also article 2 (d) and (n) of Directive 2011/95/EU and article 36 (1) (b) of Directive 2013/32/EU). Concerning the term "habitual residence" under the Geneva Refugee Convention, the jurisprudence of the Federal Administrative Court has clarified - pending other or more specific findings in a decision on referred question 5 of the request for a preliminary ruling submitted to the CJEU after this judgment was pronounced, in the decision of 14 May 2019 - BVerwG 1 C 5.18 - that such a residence does not presuppose lawful residence. Rather, it is sufficient that the stateless person did in fact have the focus of his or her life in that country, and therefore did not merely stay there temporarily, without the competent authorities having taken steps to terminate his or her residence (see, for further details, BVerwG, judgment of 26 February 2009 - 10 C 50.07 - BVerwGE 133, 203 para. 31 et seqq.).
15 In substantive terms, the third country must be willing to readmit the foreign national and to assure him or her of safety consistent with the requirements of section 27 AsylG in conjunction with article 35 of Directive 2013/32/EU. For this purpose, the safety from political persecution mentioned in section 27 AsylG is not enough in itself; rather, in an interpretation in conformity with EU law, this provision must be supplemented by the requirements set in article 35 of Directive 2013/32/EU for a "first country of asylum", as interpreted by the CJEU. According to that provision, in addition to the country's willingness to readmit the applicant, it is necessary for the applicant to be recognised in that country as a refugee, and that he or she can still avail himself or herself of that protection, or that he or she otherwise enjoy sufficient protection in that country, including benefiting from the principle of non-refoulement. Accordingly, the person concerned must not only be guaranteed readmittance to the third country; he or she also must not be threatened there with persecution or danger that is relevant under refugee law and would establish a claim to subsidiary protection or reach the threshold under article 3 of the European Convention on Human Rights (ECHR). The individual must be able to stay there in safety under dignified living conditions for as long as necessary in view of the risks persisting in the person's country of habitual residence (see, similarly, CJEU, judgment of 25 July 2018 - C-585/16 - para. 140).
16 2. The Court of Appeal, which did not examine the above questions, made no factual findings that enable the Senate to make its own assessment. As reproduced in the facts of the appeal judgment, the claimant stated that following his departure from Syria on 1 September 2014 he stayed for about a year in Turkey; but the simple fact of that statement does not, in itself, permit the conclusion that the claimant had his last habitual residence in Turkey, and consequently an inadmissibility of the asylum application pursuant to section 29 (1) no. 4 AsylG would not apply. Thus, the Court of Appeal must be given the opportunity, by a remittal of the case under section 144 (3) first sentence no. 2 VwGO, to add the findings needed in order to assess this question. In so doing, it may consider the option of awaiting the results of the request for a preliminary ruling that the Senate has submitted to the CJEU, which sought, inter alia, a more detailed definition of the requirements of EU law for a habitual residence (see BVerwG, decision of 14 May 2019 - 1 C 5.18 - referred question 5). Moreover, to date there have been no factual findings established by the competent court that make it possible to assess the question of whether Turkey is willing to readmit the claimant and to assure him of safety that meets the requirements of section 27 AsylG in conjunction with article 35 of Directive 2013/32/EU. Therefore, here as well, there may be a need for further inquiry into the facts by the court responsible for finding the facts.
17 3. If the required further inquiry into the facts yields the result that the asylum application is not inadmissible under section 29 (1) no. 4 AsylG - whether because Turkey is not a "third country" where a habitual residence was previously established, or because, although Turkey could in principle be considered a third country, it does not meet the substantive requirements for "another third country" under the terms of sections 29 (1) no. 4 and 27 AsylG - the Court of Appeal will then have to take the following into account in the substantive assessment of the application that will have to be performed anew:
18 Under section 3 (3) first sentence AsylG, a foreign national is not a refugee under section 3 (1) AsylG if he 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 (hereinafter Geneva Refugee Convention). 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 3 (1) and (2) AsylG are to apply (section 3 (3) second sentence AsylG). The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) is currently the only organisation that falls within the scope of these provisions, which incorporate and implement article 1 (D) of the Geneva Refugee Convention and article 12 (1) (a) of Directive 2011/95/EU, and were created precisely in light of the specific situation of Palestinian refugees - who are regularly stateless - receiving protection or assistance from UNRWA (see CJEU, judgments of 17 June 2010 - C-31/09 [ECLI:EU:C:2010:351], Bolbol - para. 44 and of 19 December 2012 - C-364/11 [ECLI:EU:C:2012:826], El Kott - para. 48). The application of section 3 (3) second sentence AsylG, which links to the first sentence of the provision and forms a single unit with it, does not require the satisfaction of the general characteristics of a refugee (section 3 (1) AsylG, article 1 (A) Geneva Refugee Convention, article 2 (d) of Directive 2011/95/EU); rather, it contains a description of refugee status that is independent from section 3 (1) AsylG/article 1 (A) no. 2 of the Geneva Refugee Convention (BVerwG, judgment of 4 June 1991 - 1 C 42.88 - BVerwGE 88, 254 <258 et seq.>). If the requirements of this provision are met, an applicant must upon his or her application be granted refugee status ipso facto without having to proof a well-founded fear of being persecuted with reference to the territory of his or her former habitual residence (see CJEU, judgments of 19 December 2012 - C-364/11 - para. 67, 70 et seqq., 76 and of 25 July 2018 - C-585/16 - para. 86).
19 3.1 In the case that the claimant did have his former habitual residence in Turkey, he might at most still adduce a persecution by or in Turkey - which has not been asserted thus far - within the meaning of section 3 (1) AsylG, if he was able to return to that country (in this regard, see BVerwG, judgment of 22 February 2005 - 1 C 17.03 - BVerwGE 123, 18 <22 et seq.>). In that case, a grant of ipso facto refugee status as a stateless Palestinian under section 3 (3) AsylG would no longer apply.
20 According to the case-law of the CJEU, the exclusion clause of article 12 (1) (a) of Directive 2011/95/EU (implemented by section 3 (3) first sentence AsylG) - which must first be examined - must be interpreted narrowly and is fulfilled only if the person concerned has actually availed himself or herself of the protection or assistance provided by UNRWA. If a person is registered with UNRWA, that registration is normally sufficient proof of actually receiving assistance from it (see CJEU, judgment of 17 June 2010 - C-31/09 - para. 51 et seq.). However, this presumption (or even legal fiction) that a registered Palestinian has actually availed himself or herself of the protection or assistance from UNRWA can in any case presumably no longer apply if the person concerned had his or her former habitual residence before entering the European Union in a third country that is not included in UNRWA's area of operations. In such a case, the third country has become the person's (new) country of origin under the terms of section 3 (1) no. 2 (b) AsylG, and he or she can no longer be covered by the exclusion clause of section 3 (3) first sentence AsylG (for example, if persecution by the third country is claimed). By the same token, however, the person also can no longer claim acquisition of ipso facto refugee status because of an involuntary cessation of the assistance or protection from UNRWA (so ruled as well, presumably, by the French National Court of Asylum, the CNDA (Cour nationale du droit d'asile), decision of 2 November 2016, Mr H. no. 16011360 C; previously dissenting, BVerwG, judgment of 4 June 1991 - 1 C 42.88 - BVerwGE 88, 254 <266>).
21 The case-law of the CJEU already leans in this direction, holding that the ground for exclusion from recognition as a refugee in article 12 (1) (a) first sentence of Directive 2011/95/EU covers not only persons who are currently availing themselves of the 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 (see CJEU, judgment of 19 December 2012 - C-364/11 - para. 52). The wording "shortly before submitting an application for asylum" here indicates the requirement of a temporal connection between availing oneself of the protection or assistance from UNRWA and applying for asylum in a Member State. Furthermore, the presumption of an actual availment of the protection or assistance from UNRWA plainly presupposes residence in that agency's area of operations.
22 General principles of refugee law also argue that in any case the establishment of a habitual residence in a third country outside of UNRWA's area of operations before entering the European Union bars an application of section 3 (3) AsylG. For stateless persons, the starting point for an assessment under refugee law is the country of the person's former habitual residence (section 3 (1) no. 2 (b) AsylG, article 2 (d) and (n) of Directive 2011/95/EU). This is consistent with the fact that for stateless persons, refugee status ceases under article 11 (1) (f) of Directive 2011/95/EU, as implemented by the revocation provision of section 73 (1) second sentence AsylG, only if the person concerned is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to the country of his or her former habitual residence. In the case of ipso facto refugee status, this cessation requires the possibility of returning to the UNRWA area of operations in which the person was formerly habitually resident (see CJEU, judgment of 19 December 2012 - C-364/11 - para. 77). It is unclear whether here the Court of Justice intended the term "UNRWA area of operations", with which it regularly describes the entire interstate area of UNRWA's operations (see, e.g., CJEU, judgment of 25 July 2018 - C-585/16 - para. 7, 131 et seqq.), to mean the same thing as that territory, or whether possibly, because of the restricting addition "in which the person was formerly habitually resident", it limits the term in a narrower sense to the agency's specific field of operation (Gaza Strip, West Bank, Jordan, Lebanon or Syria) (see also BVerwG, decision of 14 May 2019 - 1 C 5.18 - referred question 4 and para. 40 et seqq.; on the Senate's terminology, see also para. 29); but in any case there is nothing to indicate that a possibility of returning to some field of operation must exclude refugee status or cause that status to cease even if the person concerned was habitually resident in a third country outside UNRWA's area of operations before entering a Member State.
23 3.2 However, if the claimant (still) had his former habitual residence in Syria, an acquisition of status as an ipso facto refugee is not automatically excluded. According to the findings of the Court of Appeal (printed judgment p. 6 and 9), which are binding on the Senate, the claimant is a stateless Palestinian; by presenting a registration card, he has proven that he was registered with UNRWA as a Palestinian refugee and received assistance at the Nairab camp in Syria. Thus it is fundamentally established that he availed himself of the protection or assistance from UNRWA in Syria. Whether an actual interim residence of about one year in a third country outside UNRWA's area of operations opposes a grant of ipso facto refugee status under section 3 (3) AsylG or article 12 (1) (a) of Directive 2011/95/EU on grounds that the organisation's protection or assistance ceased, even if that residence is not to be considered a habitual residence, will ultimately depend on whether the requirement that the protection or assistance from UNRWA must have been received "shortly before submitting an application for asylum" in a Member State is a constitutive prerequisite, and how it is to be defined in more specific terms. If it is clarified - as presumably must be left to the CJEU - that an actual residence (not habitual, but extended) in a third country outside UNRWA's area of operations prior to entering the European Union does not oppose a grant of ipso facto refugee status in the European Union, the further examination that will then be necessary must be oriented to the following standards:
24 a) According to section 3 (3) second sentence AsylG, the ground for exclusion established by the first sentence does not apply, and a foreign national is to be automatically granted refugee status (assuming there are no grounds for exclusion as provided in section 3 (2) AsylG - which is not a matter of concern here), if such protection or assistance has ceased (under article 12 (1) (a) of Directive 2011/95/EU: 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. The Court of Appeal correctly held that the position of the Palestinians receiving assistance from UNRWA has not to date been definitely settled (see also CJEU, judgment of 19 December 2012 - C-364/11 - para. 54).
25 For the cessation of protection presupposed in section 3 (3) second sentence AsylG, it is not necessary for the organisation or institution that grants protection or assistance to cease to exist entirely, for example by being abolished. Rather, because of the addition "for any reason" (see article 12 (1) (a) of Directive 2011/95/EU), which in an interpretation in conformity with EU law must also be given consideration in national law, it must be assumed that the reason for which assistance has ceased may also be attributable to circumstances which are beyond that person's control and have forced that person to leave the UNRWA area of operations. Accordingly, under the terms of this provision, assistance or protection is no longer provided if the person's departure is justified by reasons that are not under 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. A Palestinian refugee must be regarded as having been forced to leave UNRWA's area of operations if his or her personal safety is at serious risk and if it is impossible for that agency to guarantee that his living conditions in that area will be commensurate with the mission entrusted to that agency (CJEU, judgment of 19 December 2012 - C-364/11 - para. 56 to 61).
26 aa) As is already evident from this definition of specific details of the requirements for a cessation of protection or assistance, the assessment of this question must be based on the date of leaving the area of operations. Additionally, however, at the date of the last oral hearing or decision of the court responsible for finding the facts, as is relevant under section 77 AsylG, it must also have been impossible for the person concerned to return to the area of operations and to return to the protection or assistance from UNRWA. According to article 11 (1) (f) in conjunction with article 14 (1) of Directive 2011/95/EU, refugee status ceases and must be denied 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). It follows that the possibility of returning to the UNRWA area of operations must be taken into account at the time of the decision on a grant of refugee status, because it would be pointless to grant refugee status if that status then had to be revoked immediately ((...); see also CJEU, judgment of 25 July 2018 - C-585/16 - para. 110 et seqq.).
27 bb) In geographical terms, the CJEU has not yet finally clarified whether an assessment should focus on the entire area of UNRWA's operations, or - in any case where the Palestinian concerned has no substantive connection with other fields of operation - whether only the specific field of operation (here: Syria) is relevant. These questions are the subject matter of a request for a preliminary ruling submitted to the CJEU by a decision of the Senate of 14 May 2019 - BVerwG 1 C 5.18 - (referred questions 1 and 2), after the present judgment was pronounced. At any event, within a specific field of operation, under the requirements for internal protection under article 8 of Directive 2011/95/EU - which are to be applied mutatis mutandis - a Palestinian may also be referred to places other than his or her place of origin.
28 cc) In qualitative terms, the necessary living conditions commensurate with the agency's mandate also include safety from persecution (article 9 et seqq. of Directive 2011/95/EU) and from serious harm (article 15 - especially letter c - of Directive 2011/95/EU). This is not opposed by the fact that UNRWA's mandate is limited to social and economic tasks. Providing food, school lessons or healthcare has no practical value if the beneficiaries cannot reasonably be expected, because of a situation of civil war, to avail themselves of those facilities, and therefore their emigration is justified for objective reasons (see also Advocate General Mengozzi, opinion of 17 May 2018 - C-585/16 - para. 45). This is consistent with the indication by the CJEU that protection or assistance by UNRWA also presupposes that the person can remain in the area of operations "in safety, under dignified living conditions" (CJEU, judgment of 25 July 2018 - C-585/16 - para. 134, 140). The Senate does no longer adhere to its previous jurisprudence to the contrary (BVerwG, judgment of 21 January 1992 - 1 C 17.90 - (...)). Therefore, the question left open by the Court of Appeal, as to whether the cessation of protection is already indicated by the fact that the claimant has been granted subsidiary protection by the notice forming the subject matter of his action because of the situation of civil war in Syria, should at any event be answered in the affirmative if, in the absence of a substantive connection of the claimant to other fields of operation, the cessation of protection must be assessed solely on the basis of Syria (similarly, Mannheim Higher Administrative Court (VGH, Verwaltungsgerichtshof), judgment of 28 June 2017 - A 11 S 664/17 - (...), OVG Weimar, judgment of 15 June 2018 - 3 KO 167/18 - (...) para. 54 and VGH Kassel, decision of 30 July 2018 - 3 A 582/17.A - (...) para. 35; see also Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/8201 p. 8).
29 b) In application of these principles, the Higher Administrative Court was ultimately not in violation of federal law when it held in the contested judgment that UNRWA's protection or assistance was no longer provided to the claimant, within the meaning of section 3 (3) second sentence AsylG, at the time when he left Syria - and thus the agency's area of operations - in September 2014. That Court found, in terms binding upon the Court deciding on appeal on points of law, that UNRWA was no longer able to guarantee living conditions at the Nairab camp that were commensurate with its mandate, and that the claimant could not be expected to settle at another camp in Syria, because many UNRWA facilities in Syria had been destroyed or were not accessible to UNRWA, and there was no safe access to numerous refugee camps. The defendant, who itself granted the claimant subsidiary protection because of the circumstances in Syria, has not submitted own findings to the contrary in the appeal proceedings on points of fact and law, and has also not raised any procedural complaints in the present appeal proceedings on points of law. If, according to the defendant's submissions, supportive benefits may still have been provided at the Nairab camp until 2015, that does not bar the presumption that the claimant could not be expected to stay there because of the established serious safety deficiencies caused by civil war.
30 The Court of Appeal furthermore found that at the time of his departure from Syria, the claimant had no possibility of availing himself of UNRWA's protection in other parts of the area of operations, because both Jordan and Lebanon (as the only further fields of operation directly bordering on Syria) had closed their borders to Palestinian refugees from Syria. In the absence of a successful procedural complaint by the defendant, the factual findings as well are binding upon the Court deciding on appeal on points of law under section 137 (2) VwGO; the appeal on points of law did neither challenge its validity otherwise in any sufficiently substantiated form. Insofar as the defendant intends to adhere to the doubts it implied in the oral hearing before the Senate, it is moreover free to introduce any further findings that may be available to it in the renewed appeal proceedings on points of fact and law, or to seek a further inquiry into the facts. However, if the results of the further appeal proceedings on points of fact and law still to be conducted establish that the findings already made must still stand, the question as to the extent to which the scope of the area of operations is to be taken into consideration - requiring clarification under EU law - is irrelevant for the determination of the time of departure.
31 However, in the new decision to be made, when assessing whether a possible cessation of the protection or assistance provided by UNRWA still continues at the time of the oral hearing or the decision of the court responsible for finding the facts, the Court of Appeal will at any event have to work from more up-to-date sources of findings than it applied in the contested judgment. If, in this connection, the questions submitted to the CJEU concerning the scope of the territory that applies for a consideration of return (BVerwG, decision of 14 May 2019 - 1 C 5.18 - referred question 4) prove to be relevant for the decision, it may for that reason also be an obvious step to await the Court of Justice's decision before making a new decision on the appeal on points of fact and law.