Subsidiary Protection Application Success

    A KOD Lyons client has been granted subsidiary protection on the basis of compelling reasons arising out of serious harm she experienced in her country of origin.

    Subsidiary protection is a status granted to asylum seekers who are found not to meet the strict legal definition of a “refugee” but who can nonetheless demonstrate that they are at risk of serious harm if returned to their country of origin.  This status was introduced in the EU by Council Directive 2004/83/EC (known as the “Qualification Directive”), which was transposed in Ireland by the European Communities (Eligibility for Protection) Regulations 2006.

    The Directive itself makes no provision to grant refugee status or subsidiary protection on the basis of compelling reasons arising from past experiences.  This provision was added by the Minister for Justice, Equality and Law Reform when transposing the Directive into Irish law. Although rarely used in practice, it can provide an additional safeguard for those who experienced such atrocious harms that they would likely be severely traumatised if ordered to return.

    Unfortunately, this safeguard is not available to new subsidiary protection applicants. The European Union (Subsidiary Protection) Regulations 2013, brought in to allow applicants an oral hearing in line with the decision in MM v Minister for Justice (2013) IEHC 9, incidentally amended the 2006 Regulations to remove the “compelling reasons” provision as applied to subsidiary protection applications lodged after 14th November 2013. 

    Our client’s application had been lodged before this date, and so the decision-maker was able to take into account her horrific history of sexual violence and evidence of severe physical and psychological harm in finding her eligible for subsidiary protection despite the absence of any forward-looking risk.  There will, however, undoubtedly be applicants in future who have experienced similar degrees of harm, but who will not be eligible because of this change in the law.  It is alarming to think that victims of atrocious violence such as our client experienced will be excluded from protection simply because of the date of their application.

    It is unclear why this change was made to the law.  There was no European or constitutional imperative to remove it, nor have we seen any practical difficulties with implementation. The provision still applies to applications for refugee status. It may be that the Minister for Justice and Equality saw this as a way of reducing the number of successful applications under the new Regulations. If so, this is not only misguided – the threshold for “compelling reasons” is higher than most applicants can meet – but deeply unfair, and likely to lead to tragic consequences for those now deprived of this safeguard.  We hope the provision can be reinstated in future.

    For more information please contact Wendy Lyon of our Immigration and Asylum department.

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