El-Ali v Secretary of State for the Home Department (United Nations High Comr for Refugees intervening) (Daraz v Secretary of State for the Home Department (United Nations High Comr for Refugees intervening))

Article 1D of the 1951 Convention relating to the Status of Refugees applies to the historical class of Palestinian Arabs receiving UNRWA protection or assistance when the Convention was concluded on 28 July 1951. Later entrants to UNRWA’s mandate do not join that class. The contemplated cessation is the overall cessation of UNRWA assistance, not an individual’s voluntary departure or failure to use it. Where the second sentence applies, ipso facto entitles the person to be treated as a refugee and receive Convention benefits without proving an individual Article 1A(2) claim. The appeals failed because neither appellant belonged to the original class and neither had an independent Article 1A(2) claim.

El-Ali and Daraz were Palestinians who had lived in Lebanon, received UNRWA assistance there and claimed asylum in the United Kingdom. Their substantive asylum claims were rejected. El-Ali’s appeal was dismissed by a starred determination of the Immigration Appeal Tribunal. In Daraz’s case, the Tribunal followed that decision and refused permission to appeal.

The Court of Appeal granted Daraz permission and heard both matters together. The appellants relied on Article 1D of the 1951 Convention relating to the Status of Refugees, arguing that cessation of UNRWA assistance on leaving Lebanon automatically entitled them to refugee status. The central issue was the proper interpretation of Article 1D.

Disposition. The appeals were dismissed unanimously. Laws LJ gave the leading judgment; May LJ agreed, and Phillips MR agreed with the result and substantially the same construction. The Mandate Refugee policy supplied no free-standing basis for allowing either appeal.

1. Treaty interpretation. Article 1D was construed according to ordinary meaning, context, object and purpose, with the travaux préparatoires used as a supplementary means of interpretation. The judgment treated the interpretive rules in the Vienna Convention as reflecting customary international law. The historical materials showed that Article 1D was directed only to Palestinian Arabs displaced in the circumstances existing when the Convention was made.
2. Temporal scope. The words “at present” referred to 28 July 1951. The relevant class comprised those receiving UNRWA assistance in its territories of operation on that date. Persons who came within UNRWA’s mandate later, including descendants born after the Convention, did not join the Article 1D class. The 1967 Protocol did not amend Article 1D by implication, and later General Assembly resolutions enlarging UNRWA’s mandate were not subsequent practice applying the Convention.
3. Cessation. The second sentence contemplated the overall cessation of UNRWA assistance, rather than an individual’s voluntary departure or failure to avail himself of assistance. Article 1D contained no equivalent of the UNHCR Statute’s reference to reasons other than personal convenience. The court regarded the internal-flight alternative as irrelevant to Article 1D. Laws LJ recognised, but did not decide, a possible exceptional case where authorities actually prevented return.
4. Automatic entitlement. The phrase ipso facto meant that a person within the second sentence would be treated as a refugee within Article 1A(2) and would receive the Convention’s substantive benefits without proving an individual Article 1A(2) claim. The possible effect of Article 33 on removal was left undecided because Article 1D did not apply to either appellant. Appeals dismissed; leave to appeal to the House of Lords refused.

• Court of Appeal (Civil Division) granted Daraz permission to appeal, heard both matters together and dismissed the appeals: [2002] EWCA Civ 1103.
• Immigration Appeal Tribunal dismissed El-Ali’s appeal in a starred determination notified on 29 January 2002. In Daraz’s case, it followed its decision in El-Ali and refused permission to appeal.
• Adjudicators rejected the appellants’ substantive asylum claims. The Adjudicator in Daraz did not determine an Article 1D claim.
• Secretary of State refused the asylum claims and rejected reliance on the Mandate Refugee policy.