Subsidiary Protection for asylum seekers within Ireland
Liam Thornton, BCLI (NUI), PhD Candidate, Centre for Criminal Justice and Human Rights, Faculty of
Law, University College Cork, IRCHSS Scholar, 2005-2008. *
[2008] 26(1) Irish Law Times, 6-13
Introduction
A third country national is entitled to subsidiary protection from Ireland where she faces
a real risk of suffering serious harm if she is returned to her country of origin or country
of former habitual residence.1 ‘Serious harm’ consists of (i) death penalty or execution,
or, (ii) torture or inhuman or degrading treatment or punishment of the applicant in the
country of origin; or (iii) serious and individual threat to a civilian’s life or person by
reason of indiscriminate violence in situations of international or internal armed conflict.2
The origins of the concept of subsidiary protection emerged from the need for a
secondary status for those, who were in need of protection, but failed to come within the
strict definition of ‘refugee’ as laid down within the 1996 Refugee Act.3 This article does
*
This article is based on a paper presented for the Refugee and Asylum Support Unit: Practitioners
Seminar Series, Irish Centre for Human Rights, NUI Galway on the 29 th September 2007. The author
would like to express his appreciation to all those in attendance who gave their insights on an earlier draft
of this article.
1
Reg. 2 of S.I. No. 518 of 2006 European Communities (Eligibility for Protection) Regulations 2006
(hereinafter the 2006 Regulations).
2
Reg. 2 of the 2006 Regulations; Article 15 of the Qualification Directive.
3
Article 1A(2) of the 1951 Geneva Convention relating to the status of refugees; Section 2 of the 1996 Act.
These instruments state that a ‘refugee’ is a person “owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside
the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the
1
not seek to give a detailed critique of the narrowness or vagueness of the definition of
subsidiary protection within Irish and European law.4 This article shall first consider the
current scheme of subsidiary protection application, before considering the proposed
scheme under the 2007 Bill. The article will look at some of the common issues decision
makers will have to consider under both instruments. The article shall then consider
decisions of the European Court of Human Rights and communications to the Committee
Against Torture, which may assist in determining subsidiary protection claims.
The definition of ‘serious harm’ for the purposes of subsidiary protection is a relatively
new concept within both European and Irish asylum law. The Migration Law Clinic,
located in the Centre for Criminal Justice and Human Rights (CCJHR),5 Faculty of Law,
University College Cork, has put together a subsidiary protection case-book.6 The case-
protection of that country; or who, not having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
4
For an in-depth explanation of the term subsidiary protection within the framework of the Common
European Asylum System, see the following publications: Battjes, H. European Asylum Law and
International Law (Leiden, Martinus Nijhoff Publishers, 2006), in particular Chapter 5; Ferguson
Sidorenko, O. The Common European Asylum System: Background, Current State of Affairs, Future
Direction (The Hague, T.M.C. Asser Press, 2007), in particular Chapter 2; McAdam, J. Complementary
Protection in International Refugee Law (Sydney, OUP, 2007), in particular Chapter 2.
5
The CCJHR was established by the Faculty of Law, U.C.C. in 2006. The Centre seeks to contribute to
national and international debates on these questions, through the promotion of cutting edge
interdisciplinary research, innovative programmes of legal education and training, and key partnerships
with Government, statutory bodies, civil society organisations worldwide.
6
Dr. Siobhán Mullally, Co-Director of the CCJHR was the academic supervisor this project. The case notes
were prepared by LLM (Criminal Justice) students and PhD candidates from the CCJHR. The author would
2
book contains twenty-eight summarised reports from the House of Lords, European Court
of Human Rights, along with an examination of a number of individual complaints under
the Convention against Torture. It is envisaged that this case-book will act as a guide to
legal advisers of subsidiary protection applicants. The case-book also seeks to assist those
deciding upon applications for subsidiary protection to enable them to ensure compliance
of their decisions with human rights standards.
Subsidiary Protection
The current scheme of subsidiary protection application
The current scheme of subsidiary protection is set out within the Eligibility for Protection
Regulations.7 The definition of subsidiary protection reflects article 2(e) of the EU
Qualification Directive.8 Regulation 4 sets down the administrative scheme for applying
like to express his appreciation to Dr. Siobhán Mullally (UCC) for her academic supervision of the
Subsidiary Protection: Case Law Project and to the individual authors who were the main contributors to
the case book: Claire Cumiskey, Fiona Finn, Brian Hanley, Sian Langley, Claire Lyons and Deirdre
Morgan. Unless otherwise indicated, information on the cases cited below come from the respective casenote. Thornton, L. (editor) Subsidiary Protection: Case Law Project (2007, CCJHR, Cork). The full text of
the case-book may be accessed online at www.ucc.ie/en/ccjhr . The project was undertaken following
discussions with Bernadette McGonigle, Head Solicitor, Refugee Legal Service, Cork, on the need for an
easily accessible and comprehensive case law resource, for use is subsidiary projection claims. For further
information on the case book, readers may contact the editor at l.thornton@mars.ucc.ie .
7
S.I. No. 518 of 2006 European Communities (Eligibility for Protection) Regulations 2006.
8
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 granted [2004] Official Journal L.304/12.
3
for subsidiary status within Ireland. Firstly, an application for subsidiary protection can
only be made after the Minister for Justice, Equality and Law Reform refuses to grant
refugee status.9 Secondly, the Minister must propose to deport the unsuccessful refugee
applicant.10 In addition to applying for humanitarian leave to remain,11 the unsuccessful
refugee applicant may also make an application for subsidiary protection within 15
days.12 After considering any information or documentation in relation to the subsidiary
applicant’s claim,13 the Minister will then decide whether an individual is entitled to
subsidiary protection,14 or whether a deportation order should be issued.15
The proposed scheme of subsidiary protection application
9
Section 17 of the Refugee Act, 1996 (as amended) states that the Minister shall grant refugee status if a
positive decision is given by ORAC or RAT.
10
Regulation 4(1)(a) of the 2006 Regulations.
11
Article 3(3)(b) of the Immigration Act, 1999.
12
The subsidiary protection applicant (with her legal representative) has to complete a standardised form,
reproduced in Schedule 1 of the 2006 Regulations, indicating the ground(s) upon which an application for
subsidiary protection is to be made.
13
Regulation 4(3) of the 2006 Regulations.
14
Regulation 4(4) of the 2006 Regulations.
15
Regulation 4(5) of the 2006 Regulations.
4
The Immigration, Residence and Protection Bill16 which lapsed upon the calling of the
2007 general election, saw the restatement within Irish law of many provisions of the
Refugee Act, 1996 (as amended). However, the influence of European asylum law is
evident with the new Bill, as it sought to transpose the Procedures Directive17 into Irish
law. Within the 2007 Bill it had been proposed to streamline the decision making
processes and combine consideration of an individual’s claim into one procedure. This
single procedure would consider the applicant’s refugee and/or subsidiary status claim
together.18 The applicant’s claim to either refugee or subsidiary protection would at first
instance be examined by the Minister (or his representative)19 and upon appeal by the
16
For
the
full
text
to
the
now
lapsed
Bill,
see:
http://www.oireachtas.ie/documents/bills28/bills/2007/3707/b3707s.pdf. For some general comments on
the Scheme to the Bill, please see Mullally, S. et al. Submission on the Scheme for the Immigration
Residence and Protection Bill, 2006 (CCJHR, Cork, 2006, www.ucc.ie/en/ccjhr/ ).
17
Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and
withdrawing refugee status [2005] Official Journal L.326/13.
18
Since this is the case, then the protections in place under the Procedures Directive will apply to the
examination of a claim for subsidiary protection, in particular Chapter II of the Directive including inter
alia fully explained negative decisions in writing (art. 8PD); rights to be informed on course of the
procedure (article 9(1)(a)PD); to receive an interpreter, at least at interview stage (art. 9(1)(b)PD);
information on how to challenge a decision (art. 9(1)(e)PD); right to a personal interview (art. 10(1)PD
free legal assistance on appeal from a negative first instance decision (art. 13(2)PD).
19
Section 59 of the 2007 Bill.
5
Protection Review Tribunal.20 Under the lapsed Bill the burden of proof was upon the
applicant to prove that she was entitled to subsidiary protection.21
Common considerations in subsidiary protection applications
Under both systems of application for subsidiary protection, the decision maker is
obliged to take a number of factors into account. Protection against serious harm is
considered to be generally available where “…state or parties or organisations, including
international organisations, controlling a state or a substantial part of the territory of that
state to prevent the persecution or suffering of serious harm, inter alia, by operating an
effective legal system for the detection, prosecution and punishment of acts constituting
persecution or serious harm, where the applicant has access to such protection.”22
Decision makers are obliged to consider whether an internal protection alternative exists,
where there is not a real risk of an applicant suffering serious harm.23 In assessing the
facts and circumstances of a subsidiary protection claim, the decision maker should
consider inter alia country of origin information, relevant documentary evidence and the
individual position and personal circumstances of the subsidiary protection applicant in
assessing whether an individual is at risk of serious harm.24 Past experiences of serious
20
Section 71(6) (10 day appeal window) and Section 71(8) (four day appeal window) of the 2007 Bill.
21
Section 66(a) of the 2007 Bill. Under section 66(b) and (c), it is for the Minister/Tribunal, in co-operation
with the applicant, to assess the relevant elements of the protection application. The burden of proof is also
upon the applicant in relation to her claim for refugee status.
22
Regulation 2 of the 2006 Regulations; Article 64 of the 2007 Bill.
23
Regulation 7(1) of the 2006 Regulations; Article 60(5) of the 2007 Bill.
24
Regulation 5(1) of the 2006 Regulations; Section 60(1) of the 2007 Bill.
6
harm, is to serve as an indication that an applicant may still be in danger and in need of
protection.25 Where there is no documentary evidence to support an applicant’s claim to
protection, in certain situations, a decision maker may not require confirmation when a
number of conditions are met.26 Where the applicant has made a genuine effort to
substantiate her claims and where she has submitted all relevant elements of the claim at
her disposal and provided an explanation for lack of other relevant elements,
confirmation will not be needed. If the applicant’s account is plausible, her general
credibility is established and she applied for protection at the earliest possible time, her
statements will not need to be confirmed.
As with refugee status,27 there are grounds from exclusion from subsidiary status
protection. The grounds for exclusion are generally the same as those which exist for
refugee status.28 However, one important addition to the exclusion clauses is exclusion
from subsidiary protection where an individual has committed one or more crimes
outside the State, which would have been punishable if committed within Ireland, and the
person left her country of origin solely to avoid sanctions for commission of these
offences.29
25
Regulation 5(2) of the 2006 Regulations; Section 60(2) of the 2007 Bill. However a decision maker may
also take into account the fact that such serious harm may not take place again.
26
Regulation 5(3) of the 2006 Regulations; Article 60(7) of the 2007 Bill.
27
Section 2(c)-(e) of the 1996 Act (as amended).
28
Regulation 13(1) of the 2006 Regulations; Article 63(3) of the 2007 Bill.
29
Regulation 13(3) of the 2006 Regulations; Article 63(4) of the 2007 Bill (author’s emphasis).
7
Judicial perspectives on subsidiary protection
In addition to the application of rules regarding, internal protection, exclusion from
subsidiary status and assessment of facts and circumstances,30 there exists
internationalised case law which may be of use to both practitioners and decision makers.
I shall now consider a selection of cases under each of the three grounds of ‘serious
harm’ and try to ascertain whether any general principles may be taken from the cases.
The inter-relativity of the grounds of ‘serious harm’ is evident throughout the analysis of
jurisprudence. Some of the cases discussed below could have been discussed under one
or more of the headings, however, for the sake of brevity and in attempting to distil
meaning from the terms, the cases shall be placed within the heading most critical to the
understanding of the decision in that area.
Ireland is a State party to the European Convention on Human Rights and Fundamental
Freedoms and this instrument has been incorporated into Irish law by virtue of the
European Convention of Human Rights Act 2003. An organ of the State31 is obliged to
carry out its functions and duties in a manner compatible with the ECHR.32 This suggests
that when making a decision on a subsidiary protection application, the decision maker
should ensure compliance with the ECHR.
Ireland signed the Convention Against
30
The article shall not consider issues surrounding safe countries of origin or safe third countries.
31
Article 1, ECHR Act 2003 defines ‘organs of state’ includes “a tribunal or any other body (other than the
President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a
Joint Committee of both such Houses or a court) which is established by law or through which any of the
legislative, executive or judicial powers of the State are exercised”
32
Article 3 ECHR Act 2003.
8
Torture in 1992 and ratified the Convention in April 2002.33 The Convention Against
Torture (CAT) defines torture as including inter alia the infliction of severe pain or
suffering, be it physical or mental, on an individual, for reasons of punishment,
intimidation or discrimination. Ireland has accepted the jurisdiction of the Committee to
receive complaints from individuals who believe a violation of CAT has occurred. 34 In
this regard, decision makers within the subsidiary status process, may consider it helpful
to consider the Committee’s prior jurisprudence under article 3CAT to ensure that Ireland
complies with its international obligations.
(i)
death penalty or execution
The ECHR prohibits the application of the death penalty, save in times of war or national
emergency.35 Protocol 13 of the ECHR prohibits the application of the death penalty
under all circumstances.36 The proposed European Charter of Fundamental Rights
(EUCFR) also prohibits the expulsion or extradition of an individual where she may be
33
For
a
list
of
signatories
and
ratification
to
the
Convention,
please
see
http://www.ohchr.org/english/law/cat-ratify.htm (last accessed on 27 September 2007).
34
Within the Convention system, there exists the possibility to allow individuals within a State party to take
individual complaints to the Committee against Torture under article 22CAT
35
Protocol 6 of ECHR. Every Council of Europe Member has signed and ratified Protocol 6 with the
exception of Russia who has signed the Protocol, but has yet to ratify.
36
Thirty seven members of the Council of Europe have signed and ratified this Protocol. Albania, France,
Italy, Latvia, Luxemburg, Moldova, Netherlands, Poland, Spain and Turkey have all signed, but not yet
ratified this Protocol.
9
subjected to the death penalty.37 The locus classicus of the European Court of Human
Rights (ECtHR) is Soering v United Kingdom.38
In this case Mr. Soering’s extradition was sought by the Commonwealth of Virginia in
relation to the deaths of two people. The U.K. government refused to seek assurances that
the death penalty would not be imposed. Rather than arguing that extradition would
violate Soering’s right to life under article 2ECHR.39 Mr. Soering argued inter alia that
given the prolonged period he could possibly face on death row, he would be subject to
‘inhuman and degrading treatment’.40 The Court first dealt with the issue of extraterritoriality, noting that a Contracting State to the ECHR may incur liability under article
3ECHR where ‘substantial grounds’ exist for believing that the person faces a ‘real risk’
of torture, inhuman and degrading treatment.41 Article 3ECHR could not prevent the
imposition of the death penalty. The Court stated that the manner of the execution and the
conditions which the individual on death row must endure,42 the age of Mr. Soering,
along with his mental condition43 coupled with the long time spent on death row, would
37
Article 19(2)EUCFR: “No one may be removed, expelled or extradited to a State where there is a serious
risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment
or punishment.”
38
Soering v United Kingdom [1989] 11 EHRR 439; Langley, S. “Soering v United Kingdom” in Subsidiary
Protection: Case Law Project, pp.78-84.
39
Article 2(1)ECHR allows for the imposition of the death penalty, where it is provided for by law.
40
Article 3ECHR states that “No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
41
Supra. note 38, at para. 91.
42
Ibid. para, 104.
43
Ibid. para. 109.
10
expose him to a real risk of suffering inhuman or degrading treatment within the terms of
article 3ECHR.44
While a similar individual within Mr. Soering’s position may not be able to claim
subsidiary protection by virtue of Regulation 13(3)45; nonetheless, there would be an
obligation on the State to refrain from extraditing the individual back to her country of
origin. If the death penalty was to be imposed on individuals due to committal of minor
crimes or for actions such as apostasy, adultery or polygamy, subsidiary protection
should not be withheld.
(ii)
torture or inhuman or degrading treatment or punishment of the applicant in
the country of origin
European Court of Human Rights
Article 3ECHR states that “[n]o one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”46 When considering a claim that an individual may
be subject to torture, inhuman, cruel or degrading treatment, article 13ECHR “…requires
independent and rigorous scrutiny of a claim that there exist substantial grounds for
44
Ibid. para. 111. The Court also noted the alternative available to the U.K., of extraditing Mr. Soering to
Germany (as he was a German citizen) where he could be tried for the acts alleged, without risk of facing
the death penalty.
45
This states that an individual may be excluded from subsidiary protection where she fled to the State to
claim protection solely to avoid punishment for a crime she committed.
46
This terminology is also adopted within Article 4 EUCFR.
11
fearing a real risk of treatment contrary to Article 3.”47 The decisions of the Court are
based on a very detailed analysis of the facts, which makes it hard to distil some
overarching principles applicable to all cases where a fear of a violation of article 3ECHR
may arise. However, a cursory examination of the principle cases within this area, sheds
some light on factors which the Court consider important in considering a claim of
violation, and which may indicate than a subsidiary protection applicant is entitled to
protection.
The ECtHR has stated that Contracting States to the ECHR have the right, as a matter of
international law, to control the entry, residence and expulsion of aliens.48 From Soering,
it is clear that there may be extra-territorial liability for a violation of article 3ECHR. In
Cruz Varas49 the Court had to consider inter alia whether the removal of the applicant
from Sweden to Chile was contrary to article 3ECHR. The applicant alleged that he was a
political activist and was fleeing the Pinochet regime. Several medical experts found the
applicant’s claims of being tortured to be credible. However Sweden, found no evidence
of the applicant’s political involvement after contacting various political groups. The
Court found no violation of article 3ECHR given the political improvements within
47
Jabari v. Turkey [2000] ECHR 369, para. 55; Finn, F. “Jabari v. Turkey” in Subsidiary Protection: Case
Law Project pp.73-76.
48
H.L.R. v. France [1998] 26 EHRR 29, para. 33; Hanley, B. “H.L.R. v. France” in Subsidiary Protection:
Case Law Project pp. 70-73.
49
Cruz Varas and Ors. v Sweden [1992] 14 EHRR 1; Lyons, C. “Cruz Varas and Ors. v Sweden” in
Subsidiary Protection: Case Law Project pp. 49-53.
12
Chile50, as well as the doubts the Court has in relation to the credibility of the applicant.
The Court noted that only after eighteen months did the applicant raise issues of torture
and alleged political activities.51 The Court also questioned the lack of corroboration of
the applicant’s assertions.52 The case of H.L.R53 dealt with torture and cruel and inhuman
treatment by non-state actors. The applicant claimed that the Colombian authorities
would be unable to protect him from a drug ring, after he had provided information about
this ring to French law enforcement officials’. The Court rejected the French argument
that article 3ECHR protection would only be available from an individual at risk from
inhuman or degrading treatment from State officials, but not from non-State actors.54
However, the applicant failed to provide any relevant evidence of risk of ill-treatment by
non-State actors. Furthermore, there was no evidence proffered that the Colombian
authorities would be unable or unwilling to protect him.55
Committee Against Torture
Article 3(1)CAT obliges states parties to the Convention to refrain from extraditing or
returning any persons to another State “where there are substantial grounds for believing
50
Ibid. para. 80.
51
Ibid. para. 78.
52
Ibid. para. 79.
53
[1998] 26 EHRR 29
54
Ibid. para. 40.
55
Ibid. para. 44.
13
that he would be in danger of being subjected to torture.”56 In making this assessment, the
State party is obliged to consider the existence of a “consistent pattern of gross, flagrant
or mass violations of human rights.”57
When examining the risk of torture which a subsidiary applicant may face, the decision
maker has to ensure that a risk goes “…beyond merely theory or suspicion. The risk need
not be highly probable, but must be personal and present.”58 The burden is on the
complainant to prove that she has a convincing case that she is personally at risk from a
violation of article 3CAT. The fact that torture is generally practised in places of
detention or by officials, does not in itself prove that an individual prone to torture unless
she can prove that this is the case.59 In the case of Motumbo60 the Committee against
Torture emphasised that additional grounds, other than the existence of gross and flagrant
human rights violations must be presented, to show that the individual is personally at
risk from torture.61 The Committee noted that in this case, the complainant, given his
ethnic background, his alleged political affiliation, the making of defamatory remarks
56
This provision can be found within Irish law under section 4(1) of the United Nations (Convention
Against Torture) Act 2000.
57
Article 3(2)CAT. The Minister for Justice, Equality and Law Reform, is obliged to take this ground into
account by virtue of section 4(2) of the 2000 Act.
58
Losizkaja v. Switzerland (20 November 2006), CAT/C/37/D/262/2005, para. 8.5 (author’s emphasis);
Thornton, L. “Losizkaja v. Switzerland” in Subsidiary Protection: Case Law Project pp.108-112.
59
M.N. v. Switzerland, 22 November 2006, CAT/C/37/D/259/2004, para. 9.7.; Thornton L. “M.N. v.
Switzerland” in Subsidiary Protection: Case Law Project pp.113-117.
60
Mutombo v. Switzerland (27 April 1994), (13/1993); Thornton, L.
“Mutombo v. Switzerland” in
Subsidiary Protection: Case Law Project pp.120-122.
61
Ibid. para. 9.3.
14
about his country of origin, Zaire, during the refugee status determination process,
exposed him to a real risk of torture.62 The Committee further noted that Zaire was not a
party to the Convention, and were mindful that the complainant, if removed to Zaire,
would no longer be assured of the Committee’s protection.63
In a series of cases involving the Islamic Republic of Iran, the Committee prohibited the
refoulement of a number of individuals on the basis of the existence of gross and flagrant
human rights abuses, coupled with the individual risk to the complainant of torture. In all
of the Iranian cases, discussed below, the evidence of the complainants to the domestic
refugee determination bodies was considered inconsistent and contradictory. However the
Committee emphasised the fact that torture victims cannot always give an accurate
account of torture methods. All of the cases had medical evidence suggesting the
possibility that the complainant was subjected to torture. In Tala64 the complainant
alleged that he was detained and tortured in Iran for his political affiliation. Sweden felt
that the complainant’s testimony was far from coherent or consistent. The complainant
claimed that the inconsistencies in his story, originated from his poor relationship with
his previous counsel and weariness in telling his story. Medical evidence existed which
suggested that his injuries were not self-inflicted. The Committee stated that given his
62
Ibid. para. 9.4.
63
Ibid. para. 9.6.
64
Tala v Sweden, (15 November 1996); CAT/C/17/D/43/1996; Thornton, L. “Tala v Sweden” in Subsidiary
Protection: Case Law Project pp. 122-123.
15
political affiliation, previous detention, and the medical evidence available,65 Sweden had
to refrain from forcibly returning the complainant to Iran.66
In Aemei67 the Committee Against Torture stated that notice should be taken of the large
numbers of cases of cruel, inhuman and degrading treatment or punishment when
considering the risk of return to an applicant.68 When assessing this risk of torture or
inhuman or degrading treatment or punishment, a State party must consider the risk of
torture within her home country, and any subsequent activities, within the host country,
exposes a person to a risk of torture if returned.69 Within Switzerland, Aemei was active
within an organisation prohibited in Iran. This gave rise to substantial grounds for
believing that Mr. Aemei and his family would be exposed to treatment contrary to
Article 3CAT if returned to Iran. In A.F.,70 Sweden stated that it examined the general
situation of human rights abuses in Iran, the personal risk that A.F. would face, and the
risk of torture if A.F. was returned. Sweden concluded that A.F. did not face a risk of
torture within Iran. Sweden questioned his level of political activism and further noted
that A.F. did not apply for asylum for two weeks. This, stated Sweden, indicated that he
was not in need of protection. The Committee however took a different view of matters,
65
Ibid. para. 10.3
66
Ibid. para. 11.
67
Aemei v. Switzerland (9 May 1997), CAT/C/18/D/34/1995; Morgan, D. “Aemei v. Switzerland” in
Subsidiary Protection: Case Law Project pp. 93-97.
68
Ibid. para. 9.9.
69
Ibid. para. 9.7.
70
A.F. v. Sweden, (8 May 1998), CAT/C/20/D/89/1997; Morgan, D. “A.F. v Sweden” in Subsidiary
Protection: Case Law Project pp. 97-101.
16
noting the evidence of torture presented by A.F.,71 and found that Sweden was under an
obligation not to return the applicant to Iran.72
(iii)
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 final criterion of qualification for subsidiary protection is rather convoluted and
contradictory. Attempting to prove that there are ‘substantial grounds’73 for believing
that a person would face a ‘real risk’ that was ‘individual’ within an area of
‘indiscriminate’ violence seems an overwhelming task for any subsidiary protection
applicant to prove.74 The preamble recital to the Qualification Directive states that
“[r]isks to which a population of a country or a section of the population is generally
exposed do normally not create in themselves an individual threat which would qualify as
serious harm.”75 Cases within the ECtHR and within the Committee Against Torture,
have only dealt with the issues of gross, flagrant or mass violations of human rights as an
interlinked issue to individual threats of torture or violence. It therefore remains to be
71
Ibid. para. 6.5
72
Ibid. para. 6.6.
73
Article 2(e)QD.
74
For more on this argument see, Battjes, H. European Asylum Law and International Law (Leiden,
Martinus Nijhoff Publishers, 2006), paras. [302]-[304].
75
Preamble recital 26 of the QD.
17
seen what impact existing jurisprudence in related areas will have on decision making
under this ground.
European Court of Human Rights
The ECtHR has on occasion held that serious human rights problems with domestic
police contributed to a finding that an individual should not be deported, despite the
insistence of the State party that the complainant was involved in terrorist activities.76 In
Vilvarajah77 persons were detained and ill-treated due to their perceived membership of
the Peoples Liberation Organisation of Tamil Eelam (LTTE). The U.K. stated that it fully
respected the prohibition of refoulement. The U.K. argued, that the individuals in this
case were no more at risk of ill-treatment than other men in this area of Sri Lanka. The
applicants were subsequently deported to Sri Lanka. Upon return to the U.K. all the
applicants claimed that they were mistreated and tortured. The applicants sought a
declaration that their initial return to Sri Lanka was contrary to article 3ECHR. The Court
accepted that it was not precluded from considering information which came to light
subsequent to expulsion.78 The Court however, concluded that there was no violation of
article 3ECHR given that the applicants’ personal positions were no worse than that of
other members of the Tamil Community.79
76
Chahal v United Kingdom [1997] 23 EHRR 413, para 102; Langley, S. “Chahal v United Kingdom” in
Subsidiary Protection: Case Law Project, pp. 38-49.
77
Vilvarajah and Ors v UK [1992] 14 EHRR 248; Lyons, C. “Vilvarajah and Ors v UK” in Subsidiary
Protection: Case Law Project pp. 88-92.
78
Ibid. para. 107.
79
Ibid. para. 112.
18
In Ahmed80 the applicant, a Somali refugee, received a criminal conviction for attempted
robbery. Austria withdrew Mr. Ahmed’s refugee status. Austria sought to return him to
Somalia. The Court, emphasising the absolute nature of article 3ECHR, noted that the
dangers in Somalia which resulted in the applicant being granted status still existed.81 In
this particular instance, there would be a violation of article 3 were the applicant to be
deported to an area where there was a lack of a State authority.82
Committee Against Torture
The Committee Against Torture, when examining a particular case has noted that the
existence of gross, flagrant or mass violations of human rights is not in itself a ground for
determining that a person may face torture.83 In the series of Iranian cases (discussed
above) the Committee examined both the individual and surrounding circumstances
which prohibited return. The Committee has also found that the existence of civil
disorder will not in itself raise State liability under article 3CAT.
80
In M.R.A84 the
Ahmed v Austria [1997] 24 EHRR 278; Langley, S. “Ahmed v Austria” in Subsidiary Protection: Case
Law Project pp.14-17.
81
Ibid. para. 44.
82
Ibid. para. 46.
83
Khan v Canada, (15 November 1994), CAT/C/13/D/15/1994 para. 12.2.; Cumiskey, C. “Khan v Canada”
in Subsidiary Protection: Case Law Project pp.104-108.
84
M.R.A v Sweden (22 November 2006), CAT/C/37/D/286/2006; Thornton L. “M.R.A v Sweden” in
Subsidiary Protection: Case Law Project pp. 117-119.
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applicant was to be returned to the Netherlands on the basis of the Dublin Convention.85
It was likely that The Netherlands’ would not assess his refugee claim. There existed a
possibility that the complainant would be returned to Iraq. The Committee found that the
applicant’s assertions that he would be tortured by the Iraqi authorities were not
credible.86 The Committee were satisfied that Sweden had considered the possibility of
return to Iraq and was satisfied that the complainant was not at risk of torture, inhuman or
degrading treatment in Iraq.87
Analysis
From the selection of case law examined above, some common trends emerge within
each of the grounds. The prohibition on extradition or expulsion for those whom may
face the death penalty is accepted and well established within European human rights law
since Soering. While a country may not grant every individual subsidiary protection,
85
The Dublin Convention was an instrument which decided on the European country that was responsible
for considering an application for refugee status. This Convention has now been replaced by the Dublin II
Regulation.
86
The complainant claimed to have been granted refugee status in Lebanon, where from he fled to Israel
where he claimed to be questioned by the Israeli secret service, before fleeing to the Netherlands and then
Sweden. The complainant stated that the risk of torture in Iraq stemmed from his perceived complicity with
Israeli authorities.
87
Supra. note 84 at paras. 7.5-7.6.
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where there is an issue of culpability for the alleged crime, there will still be a prohibition
of refoulement. It is within the second and third grounds (‘torture’ and ‘generalised
violence’) wherein the difficulties arise in deciding whether an individual is entitled to
subsidiary protection. From the case-law examined above, it is clear that applicant’s
stories require a degree of cooberation. Within Cruz Varas, the applicant was not known
to opposition political groups. He only raised the issue of mal-treatment from the
Pinochet regime eighteen months after he made his asylum claim. This seriously
undermined the credibility of Mr. Cruz Varas. When dealing with torture victims, caselaw suggests that inconsistencies or delay in raising the issue of torture does not
necessarily mean that the applicant is being untruthful. If independent medical evidence
suggests that the applicant may have been tortured, then the decision maker should play
close heed to such professional opinion. As seen from the H.L.R. case there will need to
be an element of credibility to the applicant’s fear. Unrealistic fears along with little
evidence on the risk of torture may result in an unsuccessful subsidiary application.
However, an over-focus on inconsistencies, not overly connected with the protection
claim, and not considering available medical evidence, would result in a breach of
international obligations under CAT if the applicant was returned to her country of origin
(Tala; Aemei; A.F.). Freedom of expression for one’s political, religious or moral
viewpoint is pinnacle to human rights protection. Subsidiary status should not be refused
due to the applicant being in need for protection due to her exercise of the right to
freedom of expression within the host state (Aemei).88 In relation to the generalised
88
However, there exists the possibility for limiting the rights of those granted subsidiary protection under
article 20(7) of the Qualification Directive. A State may reduce benefits where the activities of the
21
violence ground for protection, the applicant will have to show the decision maker that
she is at personal risk. As seen from the case law discussed above, it can be difficult to
prove state responsibility for actions which occurred in a third State, due to the general
nature of the violence within that State (Vilvarajah). The essence of the ‘generalised
violence’ ground is reflected within article 3CAT. Even in a dangerous conflict zone like
Iraq, the absence of proof of individual risk, would allow a decision maker to reject a
claim for subsidiary status (M.R.A.).
However, within Ahmed the lack of a State
authority, coupled with a risk of article 3 violation , saw article3ECHR protection for the
applicant being engaged.
Conclusion
It has yet to be seen what precise effect subsidiary protection will have upon Irish
immigration law. However, ensuring a greater degree of protection of vulnerable
individuals is welcome. The purpose of this article was merely to direct practitioners’ and
decision makers to some cases which may assist them in their respective roles. With the
inevitable publication of a new Immigration Bill within the next few months, the Irish
government has a chance to restate its commitment to international law and human rights
standards. It is hoped that concerns with the 2007 Bill will be addressed in a manner
which places human dignity of all at its fundamental core. The narrowness of application
of subsidiary protection stems from a pan-European political choice. The competing tasks
of human rights commitments and protection of the immigration system of a State vied
for importance. Unfortunately, the chance to create a genuine and robust system of
applicant within the host state, brought about the conditions for grant of subsidiary status.
22
subsidiary protection, with an emphasis on human rights protection, has, for now,
passed.89 Ensuring respect for human rights, the rule of law and for Ireland’s international
commitments will ensure a fair and humane, refugee/subsidiary protection status
determination procedure.
89
For more on this issue, see MacAdam, supra. note 4, pp. 81-84. Please note also, that by April 2008, the
European Commission may propose amendments to inter alia the definition of ‘serious harm’ under Article
15QD, which may result in broadening the scope of subsidiary protection.
23