This site aims to dissect a recent ruling from the Israeli area court regarding the right of an LGBTQ Arab to seek shelter under the. This problem is of great importance, as LGBTQ Palestinians are a defenseless group within the Arab community, in terms of cultural acceptance and even, at times, their private security and dignity.
The LGBTQ community frequently encounters the consequences of violence, persecution, and inadequate shelter from the government, and occasionally even the authorities themselves are under pressure to reveal LGBTQ Palestinians ‘ identities. According to a, while the crucial part of NGO’s that promote the rights of LGBTQ Palestinians has been on the increase ( ), the dangers the neighborhood face are also popular, important, common and of grave consequences.
The site will proceed as follows. First, the legal framework of immigrant laws will be presented. Finally, the case’s facts and the arguments made by each group will be presented. Consequently, I will present the choice of the court in the case at side. The ruling’s broad relevance, which might help to strengthen protections for LGBTQ Palestinians in Israel, will be discussed in detail.
The Applicability of the Refugee Convention to Palestinians
The premise of this discussion around the Palestinians ‘ right to seek refugee standing in Israel is found in post 1D of the 1951 Refugees Convention, which states:”…
This Convention may not qualify to individuals who are currently receiving guidance or protection from other United Nations organizations besides the United Nations High Commissioner. These individuals may ipso facto become entitled to the benefits of this Convention when for safety or assistance ceases for any reason and without the position of such individuals being firmly resolved in accordance with the appropriate resolutions adopted by the General Assembly of the United Nations. ”
In accordance with this article, the convention will not apply in relation to individuals who are provided with protection by a United Nations organization or body. As such, this article can be referred to as an ‘exception clause’. The purpose of the article is to prevent situations where double protection is offered, concentrating on the most vulnerable, those who fear persecution and are at risk for their life, health, and dignity.
This ‘exception clause ’ is at the heart of the decision that was made, as will be demonstrated below, because the main concern the court had was whether Palestinians who were receiving UNRWA’s assistance and protection should be able to seek asylum in Israel. In order to determine whether and how the ‘exception clause’ applies to Palestinians who seek protection under the 1951 Refugee Conventions, it is of paramount importance to understand the proper interpretation and scope of the ‘exception clause’.
According to the UNHCR’s, the ‘exception clause ’ will only be triggered when an individual receives no protection from a United Nations agency, or has ceased to receive protection, for reasons beyond their control ( for a critical view, based on the drafting history of the 1951 Refugees Convention, see:, p. 651-652 ). Instead of adopting a blanket judgment of a particular population ( like Palestinians ) who might be in need of protection from a UN agency ( such as UNRWA ), the evaluation should be done on a case-by-case basis.
In the context of the “exception clause,” the European Court of Justice ( CJEU) has decided that the term “protection or assistance” should be narrowly defined, broadening the protection available to asylum seekers, and only apply to Palestinians who have received UNRWA’s assistance directly. This interpretation rejects the possibility of exempting from the ‘exception clause ’ individuals who are only eligible for UNRWA assistance but are not actually receiving such assistance ( para. 51 ).
The CJEU’s advocate general noted that the ‘exception clause ’ should only be used in situations where a person is not receiving assistance for a reason beyond their control ( paragraph ). 78, 82-3 ). The “exception clause” will be triggered if an individual’s personal safety is in grave danger and if it is impossible for an agency to guarantee his security ( paragraph 2 ), while also stating that it is impossible for an agency to guarantee his security. 61-4).
The District Court Case
A gay Palestinian man who has been residing in Israel since 2015 is the subject of the case at hand. The person expressed concerns about his safety in the West Bank as a result of a fear of persecution because of his sexual orientation. ראש הטופס In the past, the applicant was granted a temporary residency permit in Israel, affording him only limited rights. Authorities informed him when he requested permeant status that the Refugee Convention does not apply to Palestinians in the West Bank because they are all covered by the convention’s “exception clause.” Without any further discussion or evaluation, the application for permanent status was therefore rejected.
The petitioner argued in front of the district court that the generalization of the 1951 Refugee Convention, in which Palestinians are excluded from UNRWA for a variety of reasons, is incorrect. In fact, this interpretation undermines the meaning of the so-called “exception clause.” Contrary to what the State claimed, Palestinians in the West Bank are entitled to UNRWA assistance and fall under the “exception clause.” This perspective is based, among other things, on a 2014 governmental report that asserts the rarity of persecution based on sexual orientation and calls for a local solution to the Palestinian Authority’s cases of persecution ( when they occur ).
The Judgment
Judge Michal Agmon-Gonen ruled in favor of the UNHCR’s interpretation of the article and argued that Palestinians who are persecuted because of their sexual orientation should be given the option to apply for asylum, while rejecting the State’s claim that the convention does not apply to Palestinians given their eligibility for UNRWA’s assistance ( paragraph 2 ). 26, 50-51 ). Judge Agmon-Gonen also reaffirmed the importance of evaluating applications individually as opposed to treating each individual Palestinian who seeks assistance as a whole. In response, she mandated that the State of Israel reexamine the applicant’s case in light of his particular circumstances.
Agmon-Gonen stressed the significant significance of the interpretation provided by the UNHCR as one of the foundations of her significant ruling ( para. 49 ). She also pointed out that the 2014 Israeli government report’s falsified factual assertions that sexual persecution is uncommon ( paragraph 2 ). 26 ). More recent reports, such as the 2019 HAIS report presented above, which show a more tumultuous situation for LGBTQ people, support this view.
In a significant obiter dictum, it was made clear that the UNHCR’s sexual orientation guidelines should serve as a normative basis for discussion in upcoming cases ( para. 54). In doing so, Judge Agmon-Gonen also affirmed that the refugee status criteria based on the “membership of a particular social group, ” as enshrined in Article 1( 2 ) of the Refugee Convention, allows for flexibility when determining whether a person belongs to one of the protected groups under the 1951 Refugees Convention. This flexibility is necessary to address societal issues that the convention’s authors did not consider ( para. 53 ), such as persecution based on sexual orientation. The Israeli Supreme Court previously made a similar decision in 2020, citing the fact that women who fear female genital mutilation ( FGM ) can be seen as a particular social group and rely on the same argument made by Judge Agmon-Gonen regarding the need to further adapt the treaty to pressing social needs.
A Look Ahead – The Importance of the Judgment
The judgment holds, in my view, several positive effects: ( a ) For the first time in the history of the State of Israel, the procedural right to file an asylum application for LGBTQ Palestinians was granted; By rejecting the general idea that a person entitled to UNRWA assistance should not be able to benefit from the protection of the convention, it made it possible for Palestinians who did not receive UNRWA assistance to apply for asylum. The decision affirms the relevance of the UNHCR’s guiding principles in the interpretation of the treaty, and it has also implicitly backed the “next step” that the Courts in Israel can and should take in the recognition of refugee status based on sexual orientation.
One can hope that this ruling will indeed change the State of Israel’s approach to asylum applications from Palestinians in general and particularly those from the LGBTQ community ( at least, for those who find themselves without UNRWA because of circumstances beyond their control ). It will be important to watch and see if and how this ruling might change the reality of LGBTQ Palestinians seeking protection in Israel. This is a significant change from the Israeli authorities ‘ long-standing policy that prevented Palestinians from obtaining such status.
In general, the decision stressed the crucial need to safeguard LGBTQ Palestinians who are facing persecution because UNRWA fails to protect them in their homes. Additionally, the court’s acceptance of the UNHCR’s guiding principles in Israeli interpretation of refugee law offers a promising prospect for future jurisprudence and litigation, especially in the area of refugee law, where the need for judicial review is crucial due to the State of Israel’s controversial praxis, where 99 % of asylum requests are denied or not processed at all. Finally, the argument over the ability to use the term “membership of a particular social group” to grant refuge to LGBTQ people can be used as a springboard for the long-awaited recognition of refugee status for those who fear being charged with a sexual orientation ( see selected examples as, para. 49,, p. 820 and, para. 6-7 ).
