ISSUE 4 DECEMBER 2006 The Researcher Published by The Refugee Documentation Centre [email protected] Welcome to the fourth issue Subsidiary Protection under Convention definition of a refugee. The of The Researcher. Irish law subsidiary protection measures contained in the Qualification Directive are stated to DC be “complementary and additional to the There has been a lot of change in recent refugee protection enshrined in the Geneva months with the publication of the Scheme Patricia Brazil LLB, Convention”. for an Immigration, Residence and Protection MLitt, Barrister-at-Law, Bill, the coming into force of Subsidiary Lecturer in Law Trinity Regulation 2(1) of SI 518 of 2006 provides Protection and the making available by the College Dublin that a person eligible for subsidiary Refugee Appeals Tribunal of previous protection means a person (a) who is not a Decisions. national of a member state, (b) who does Introduction not qualify as a refugee, (c) in respect of This issue focuses on Subsidiary Protection. th We are particularly grateful to Patricia Brazil, On 10 October 2006, the European whom substantial grounds have been Barrister-at-Law and Lecturer in Law at Communities (Eligibility for Protection) shown for believing that the person Trinity College Dublin for her article, Regulations 2006 (SI 518 of 2006) came concerned, if returned to his or her country ‘Subsidiary Protection Under Irish Law’ and into force in Ireland. These Regulations are of origin, would face a real risk of to Maria Maguire, Solicitor in Galway RLS intended to give effect in Irish law to the suffering serious harm, (d) to whom the for her contribution to our understanding of European Union Directive on Minimum exclusion clause in Article 13 does not the same legislation, ‘A Positive Obligation Standards for the Qualification and Status apply, and (e) is unable, or owing to such to Protect’. I know that Refugee Legal of Third Country Nationals or Stateless risk, unwilling to avail himself or herself Services are appreciative of Emilie Wiinblad Persons as Refugees or as Persons who of the protection of that country. A number Mathez of UNHCR for her training on otherwise need International Protection of commentators have expressed concern Subsidiary Protection, which was given at and the Content of the Protection Granted at the restriction of this definition to third- short notice to them at the end of October. (Directive 2004/83/EC: “the Qualification country nationals, on the basis that such a Emilie kindly agreed to publication of a Directive”). The main objective of the limitation is incompatible with the summary of her training in this issue. Directive is to ensure that member states prohibition on discrimination contained in 3 apply common criteria for the article 3. In addition, we are indebted to Dr Ronit identification of persons genuinely in need Lentin of Trinity College Dublin for her Both the Qualification Directive and the socio-political critique, ‘Between Refugee of international protection, and to ensure the availability of a minimum level of Regulations define an application for and Citizen’. John Stanley BL examines The “international protection” as a request “IBC 05” Scheme and the Rights of Irish benefits for such persons in all member 1 made by a third country national or a Citizen Children’. Also in this issue, Fr states. The purpose of this article is to Michael Begley describes the education outline the scheme of subsidiary protection stateless person for protection from a services of Spiritan Asylum Services provided for under SI 518 of 2006, to member state, who can be understood to seek refugee status or subsidiary Initiative (Spirasi). Bobby Pringle of the address the class of persons entitled to seek 4 Dublin Mission of the International subsidiary protection, and to outline key protection. An issue which is not Organisation for Migration writes of the aspects of the substantive content of such immediately apparent from either the IOM’s newly launched project, the Directory protection. Directive or the implementing Regulations, of Return for Asylum Seekers (DORAS). is the precise relationship between these What is subsidiary protection? two separate applications. In particular, by On the home front, RDC staff are well It has long been recognised that the failing to clarify the precise meaning of the represented in this issue: Carol Doyle has provisions of the 1951 Geneva Convention second limb – (b) who does not qualify as 5 written of COI Network III; Isabel Duggan on the Status of Refugees do not address a refugee – it may be arguable that an gives us an update on RDC library books; the situation of all persons in need of application for subsidiary protection is Patrick Dowling writes of COI from the international protection.2 Some of the most separate and/or severable from an perspective of an armchair anthropologist; common situations falling outside of the application for refugee status. This is David Goggins investigates the question, international refugee regime relate to potentially significant, as if the two ‘Who are the Janjaweed?’ and I look at two applications are severable it may be the issues: the situation of Christians in Iraq and persons who can demonstrate a well case that an application for subsidiary the crossing of the Gulf of Aden by 22,000 founded fear of persecution but who people in smugglers’ boats. cannot link such persecution to a protection can be made by a person present Convention reason (also known as “the within this jurisdiction who has previously We would like to wish all our readers a merry Convention nexus”); and persons who are been refused refugee status by another Christmas and a happy New Year! at risk of serious harm owing to a serious member state. It would appear that there and widespread deterioration in public was an attempt to deal with this issue in order in the country of origin. The concept the Regulations, in the definition of a Articles and summaries contained in The of complementary or subsidiary protection “protection applicant” as a person who has Researcher do not necessarily reflect the arises from the form of protection offered made an application for protection in the views of the Management of the RDC or by some States to persons who fail to meet State and whose application has not been the Legal Aid Board the stringent requirements of the (a) determined, (b) withdrawn or deemed PAGE 2 THE RESEARCHER to be withdrawn, or (c) transferred to Hathaway’s comments in the context of invited to make representations pursuant to another country. The basis on which this refugee status, the issue is not whether the section 3 of the 1999 Act, this would not definition was inserted is unclear, as there claimant is more at risk that anyone else in appear to have been achieved by the is no equivalent provision within the her country, but rather whether the risk of Regulations. The compatibility of any such parent Directive. Furthermore, this may serious harm is sufficiently serious to purported limitation would furthermore not resolve the issue as it would appear substantiate a claim to subsidiary remain to be tested against the parent that the Dublin II Regulation does not protection.8 If persons like the applicant Directive. apply to applications for subsidiary face serious harm in the country of origin, protection.6 Thus, a person may be entitled then in the absence of effective national The origin of the purported “triggering to seek subsidiary protection in this protection, the applicant is entitled to mechanism” for an application for jurisdiction notwithstanding the refusal of subsidiary protection. In order for subsidiary protection is Regulation 4(1)(a) their asylum application by another paragraph (c) to have a practical impact, of SI 518 of 2006, which provides that a member state, and on the basis that Dublin and to ensure the concept of subsidiary notification of an intention to deport shall II does not apply to applications for protection is not rendered illusory, include a statement that a person whose subsidiary protection, this State would be decision-makers must ensure that the issue application for refugee status has been obliged to accept and process such to be addressed is whether the applicant refused and who considers that he or she is application. faces a reasonable risk of serious harm, eligible for subsidiary protection, shall be and not whether that risk is identifiable to entitled to make an application for What is serious harm? the applicant alone. subsidiary protection to the Minister within The definition of “serious harm” is also the 15 day period contained within the contained in Regulation 2(1), which states Who may apply for subsidiary notification.16 Any such application is that serious harm consists of (a) death protection? expressed to be in addition to the penalty or execution, (b) torture or The question of who may apply for entitlement to make representations to the inhuman or degrading treatment or subsidiary protection goes to the heart of Minister pursuant to section 3(3)(b) of the punishment of an applicant in the country the impact of these Regulations upon Irish Immigration Act 1999. Indeed, it is clear of origin, or (c) serious and individual law. Article 18 of the Qualification that subsidiary protection comprises an threat to a civilian’s life or person by Directive provides that “[m]ember states intermediate level of protection, and is not reason of indiscriminate violence in shall grant subsidiary