Subsidiary Protection for Asylum Seekers within Ireland

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. ‘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. 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. This article does not seek to give a detailed critique of the narrowness or vagueness of the definition of subsidiary protection within Irish and European law. 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), Faculty of Law, University College Cork, has put together a subsidiary protection case-book. The case-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