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WG Asylum-Immigration > Meetings > Ljubljana, 28-29 June 2007 > Conventional refugees and subsidiary protection: Challenges of a new framework

Conventional refugees and subsidiary protection: Challenges of a new framework

With the entry into force of the new Luxembourg Asylum Act of  the 5th of May 2006 on asylum and complementary forms of protection, the framework for the application of the Geneva convention as well as for protection on other grounds to be granted by the Luxembourg authorities has significantly changed; whereas the former law did not explicitly cover different categories of persons deserving subsidiary protection, the new law, while implementing EC Council directive 2004/83/EC of 29th 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 protection granted, hereafter “the qualification directive”, directly addresses the issue of protection needs of persons falling outside the criteria of the refugee definition set out by the Geneva convention.

The definition of persons likely to qualify for subsidiary protection is set out in Article 2 (e) of the Asylum Act and corresponds exactly to the definition of Article 2 (e) of the qualification directive as it provides as follows:

“Person eligible for subsidiary protection” means a third country national or stateless person who does not qualify as 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 case of a stateless person, to his or her country of former habitual residence, would face a risk of suffering serious harm as defined in Article 37 (Article 15 of the directive), and to whom Article 39(1) and (2) (Article 17(1) and (2) of the directive) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.

According to Article 37 of the Asylum Act serious harm consists of:

(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.

The purpose of the Act being to create, in the light of the common  European asylum system, a legal obligation to grant subsidiary protection to those at risk of serious harm for reasons and in circumstances not necessarily covered by the Geneva convention, it is important to draw a line between the refugee definition and subsidiary protection in order to make sure that the existing global refugee protection regime be strengthened rather than undermined with the implementation and practical application of the new provisions on subsidiary protection.

As pointed out by the UNHCR Comment on article 15 of the qualification directive, this presupposes that individuals who fulfil the criteria of the Geneva Convention are granted refugee status, rather than being granted subsidiary protection.

Although asylum and immigration are part of the core elements of national sovereignty, they are matters that can be effectively addressed only on European Union level. Applicants for international protection who cannot choose in complete freedom where to lodge their application should indeed expect their claims for international protection to be assessed in a similar way in any member state of the European Union and in case of successful recognition of such a claim, to result in a comparable set of rights and benefits.
Differences in this field being inevitably likely to influence the flow of asylum applicants, not only common binding rules but also a common approach in interpreting the rules set out in this field should therefore rank as a high priority among national authorities as well as on the level of administrative jurisdictions of the member states which have to apply the newly defined concepts and statuses at an ultimate stage.

Among different issues raised in our national practice, a few questions are not only of specific interest with regard to national legislation and practice, but also directly linked to the application of international human rights instruments and our practice in this area.

The creation of a proper status of subsidiary protection is the main innovation in our national law introduced through the implementation of the qualification directive. But to what extend it really opens the spectrum for protection offered to asylum seekers and persons seeking international protection on other grounds remains to be determined and requires a careful analysis of the field of application of the new status.

Subsidiary protection as a complement of the Geneva Convention

Although refugee status under the Geneva Convention and subsidiary protection status are defined by the directive, many questions raised by the application of the new instrument remain unclear and require further efforts of interpretation in order to draw a line between the two statuses.

In order to determine the added value of subsidiary protection aimed at by the qualification directive, I suggest to outline briefly what is common to the protection granted to refugees under the Geneva Convention and to proceed identifying some of the differences.

Common features

Fundamentally both forms of protection seek to grant protection against violence or other treatments that qualifiy as unjustified and contrary to the fundamental rights of individuals. Both types of protection require as well an individual examination of the fear, this important principle being explicitly stated by point c) of Article 15 of the qualification directive (serious and individual threat..)

With regard to these common features, the provisions of the directive
on the evaluation of the necessity of international protection as set out in chapter II, necessarily apply to both types of protection;  establishment and evaluation of facts are therefore subject to the same conditions  defined in Article 4 of the directive. A single article also defines the actors of persecutions or serious harm (Article 6), and provisions relating to the subsidiary character of international protection, to the ending, to the revocation of and to the refusal to renew refugee status are equally applicable to both types of protection.
As far as the definition of serious harm in Article 15 of the qualification directive is concerned, it includes grounds which are likely to indicate a strong presumption for refugee status under the Geneva Convention. The possible overlapping of the two types of protection may give rise to debates on priority ranking. A person fleeing from death penalty, torture or inhuman or degrading treatment or punishment in his or her country of origin without having committed a crime justifying exclusion from international protection, could indeed in numerous cases be considered as well as being persecuted under article 1, section A, §2 of the Geneva Convention.

Differences in definition elements

Although the refugee definition in article 2 (c) of the qualification directive does not follow word by word the refugee definition of the Geneva Convention, is in line with it as far as the nature of harm is concerned. It speaks indeed of “being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Article 9(1) of the qualification directive further defines the minimum level of severity acts must reach in order to qualify as “persecution” and more specifically refers under its point (b) to “severe violations of basic human rights, in particular rights from which derogation cannot be made under Article 15(2) of the ECHR”.

In order to qualify for subsidiary protection the counterpart to “persecution” is “serious harm as defined in article 15 (of the qualification directive)”, that is
(a)death penalty or execution; or
(b)torture or inhuman or degrading treatment or punishment of an applicant in his or her country of origin, or in the case of a stateless person, his or her country of former habitual residence, 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.

Whereas the concept of “persecution” involves a rather subjective or moral appreciation of the sufficiently severe and serious character of the treatment, the “serious harm” criteria could be considered as a more neutral option, excluding possibly a debate on the justification of the violence by the aim it pursues.

Subsidiary protection as open-ended protection?

As Luxembourg Administrative judges deal with both immigration and asylum claims, the question was raised whether the new status of subsidiary protection is likely to cover persons who seek protection on humanitarian or compassionate grounds.

Under domestic law residence can so far only be refused on determined grounds. The law enumerates criteria for refusing residence but does not specifically provide for residence permits on grounds of humanitarian nature for instance. The authorities do have discretionary power to decide positively on a request for residence.

The only protection granted by the law to those who cannot be expelled is a passive one, in accordance with the principle of non refoulement.

The present legal framework leaves thus the beneficiaries of the principle of non refoulement without a status, unless they qualify for a tolerance status applicable only to dismissed asylum seekers.

The second ground of Article 15 of the qualification directive being obviously inspired by article 3 ECHR although neither Article 15(b) nor any other provision of the Directive explicitly refer to the ECHR, this unsatisfying situation has raised a debate on the possibility to extend the application of subsidiary protection to persons presenting for instance severe health problems.

Article 3 ECHR having a broad scope and allowing to bar expulsion not only if the alien concerned would face a real risk of being subjected to treatment contrary to Article 3 in the hosting country, but also on humanitarian or compassionate grounds, a combined application of the provisions on subsidiary protection and Article 3 may possibly allow judicial remedy in the sense of conferring a status to the persons concerned under domestic law.

Opening the scope of subsidiary protection into this direction would however require interpretation efforts on the terms of Article 15 (b) of the qualification directive. According to the French version the qualifying treatment has to be “inflicted (infligé)” to the person concerned. The wording of Article 15 (b) raises therefore the question whether objective factors which do not depend on human intervention, as for example the general medical infrastructure in a country, could be considered or not.

It is interesting to note that the English version of the directive is less specific on this point.

Another question raised since the entry into force of the Asylum Act of the 5th of May 2006 regards the possibility for dismissed asylum seekers to come back to the authorities in order to lodge a new claim on the same grounds but in view to have them analysed specifically under the provisions of subsidiary protection.

A new request for international protection can be found inadmissible under the new law if the protection seeker is not able to present new elements. Access to the accelerated procedure that is to be applied in such a case and that presents lesser protection and rights for the claimant, requires therefore a finding on whether the claimant has already been dismissed from international protection requested on an earlier stage but on the same grounds.

As international protection means both refugee and subsidiary protection status, the application of the accelerated procedure remains unclear in these cases; the fact that qualification for subsidiary protection has not been examined before the entry into force of the new Asylum Act could on the one hand be stressed in order to justify that international protection would in this case implicitly refer only to refugee status because subsidiary protection simply did not exist at a former stage. On the other hand it could be argued that the same fact is also likely to be interpreted as justifying implicitly the right to present a new request specifically orientated on subsidiary protection, in order for the persons concerned to benefit from the direct applicability of the newly introduced form of subsidiary protection.