Subsidiary Protection

 

From 10th October 2006, people who are seeking protection, but who may not meet the refugee definition are able to apply for "subsidiary protection". This legal entitlement stems from the 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, commonly referred to as the '(Asylum) Qualification Directive'.

 

The transposition of this Directive into Irish domestic law had important implications for people seeking protection in Ireland, as it constituted the first international, legally-binding treaty, which establishes a duty (Article 18) for Member States to grant subsidiary protection to those in need of protection. The Directive also established minimum standards and ensured consistent equal practice for the qualification of third country nationals and stateless persons as refugees or beneficiaries of subsidiary protection within the EU. It further outlines the minimum levels of rights and benefits attached to the protection granted and benefits to be enjoyed by family members of the beneficiaries of refugee status or subsidiary protection status.

Definition & Requirements

Under current legislation, the European Communities (Eligibility for Protection) Regulations (put in a link to http://www.inis.gov.ie/en/INIS/AsylumQual.pdf/Files/AsylumQual.pdf an unsuccessful asylum applicant, when informed that his or her application for refugee status has been refused, will be informed that the Minster proposes to make a deportation order and that the applicant has three options put another link here to the document Leave to Remain  S/he will also have the opportunity to apply to the Minister for Justice, Equality and Law Reform for permission to remain in the State on the grounds that he or she is eligible for 'subsidiary protection'. In general terms, such protection can be available to a person who does not qualify as a refugee but who, if returned to his or her country of origin, would face a real risk of suffering serious harm as defined for the purpose of the Directive.

It is very important to obtain the assistance of your legal representative with your application for subsidiary protection

 The Directive's definition of a 'person eligible for subsidiary protection' is stated in Article 2(e) as:

"a third country national or stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country"

 Serious harm is defined in Article 15 of the Directive as:

a. Death penalty or execution; or

b. Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or,

c. Serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

 

If you qualify for subsidiary protection you will be allowed to stay in the State and you will qualify for certain rights and entitlements. In the main, the rights and benefits attached to refugee status and of those who qualify for subsidiary protection are the same. However, in recognition of the primacy of the Refugee Convention and of the fact that the need for subsidiary protection in principle is more temporary, all rights and entitlements are granted for a period of 3 years only. They include the following: Right to Family Reunification, Employment, Health and Social Welfare Services, Trade, Education and Travel.  The status is renewable.  Beneficiaries of subsidiary protection must be legally resident in the State for 5 years before being able to apply for naturlaisation.

 

For a full version of the EU Qualification Directive (Council Directive 2004/83/EC) click here