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 ConventionAlthough
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 featuresFundamentally
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 elementsAlthough
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.