What is Subsidiary Protection? Who can apply for it, and how?

In January 2014, a new system for assessing claims for Subsidiary Protection was introduced in Ireland. This article will explain what Subsidiary Protection is, and how Ireland’s new system works.

Subsidiary Protection is a form of protection that may protect someone who does not fit the definition of “refugee”. A person who applies for refugee status is required to prove that they have a well-founded fear of persecution on the grounds of race, religion, nationality, membership of a particular group or political opinion. So, a person who fears persecution, but not on the grounds of race, religion etc, would not qualify as a refugee. Nevertheless, if they are returned to their country of origin, they may be at risk of harm or death for some other reason. Subsidiary Protection is designed to protect such people.

Subsidiary Protection is provided for in EU law, under the “Qualification Directive” (Council Directive 2004/83/EC). Under the terms of the Directive, a person is entitled to subsidiary protection if he or she can show that, if returned to his/her country of origin, he/she would face a real risk of suffering serious harm. Serious harm is defined as:

  1. death penalty or execution, or
  2. torture or inhuman or degrading treatment, or
  3. a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

In Ireland, even if they know that they will not qualify, applicants have to apply for asylum – and have their application rejected – before they can apply for Subsidiary Protection. (Ireland is the only European country that has a system like this. Lots of human rights organisations, lawyers, academics and applicants have for years been asking the government to introduce a “single procedure” to examine these slightly different claims together. This would reduce the time that applicants spend waiting for a decision in their case.)

For a long time, Ireland’s system for assessing applications for Subsidiary Protection gave little hope to applicants. Eventually a decision of the European Court of Justice, as interpreted by the Irish High Court, forced Ireland to improve the system (you can read about that decision here).

While the system was being reformed, lots of applicants had to wait so that their application could be made under the new system. In November 2013, the new legislation was published. The first applications have been made under the new system during the first months of 2014. Unlike before, applicants now have an opportunity to attend an oral hearing. They also have an opportunity to provide up to date information about the situation in their home country, and about how it affects them.

Some applicants who are entitled to legal aid will receive assistance from a solicitor within the Legal Aid Board’s Refugee Legal Service (RLS). Because there are so many applicants, other applicants who are receiving legal aid will be provided with a list of private solicitors, and may ask one of these to make their application for them. The solicitor’s fees would be paid by the Legal Aid Board. I am on that list. Finally of course, applicants may choose to pay a private solicitor to make their application for them.

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Principal, Claire McCarthy Solicitor

Posted in Immigration