In an earlier post, I outlined the core meaning of the terms refugee and asylum seeker. In addition to refugee protection in Ireland, an asylum seeker who fails to fall within the terms of this definition may be entitled to subsidiary protection. Subsidiary protection came about as a result of European Union law. Where an asylum seeker can show that she will face a real risk of serious harm in her home country, she will be entitled to subsidiary protection. Serious harm is defined as the:
- death penalty or execution;
- torture or inhuman or degrading treatment or punishment; and/or
- a serious and individual risk to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
Unlike the decision on refugee status, any decision that an asylum seeker is entitled to subsidiary protection is made solely by the Minister for Justice, Equality and Law Reform (or more accurately his officials) after any claim for refugee status has been dismissed. This is done on the basis of paper representations and with reference to the decision of the Refugee Appeals Tribunal. In March 2011, Hogan J. referred a question to the Court of Justice of the European Union asking whether officials, acting on behalf of the Minister, need to inform a subsidiary protection applicant, prior to making a final decision, whether they are minded to reject the subsidiary protection application and the reasons for this rejection. In such circumstances, should the asylum seeker have a right to make representations to respond to this initial communication? The CJEU’s response to this question is pending.
Very few applicants for subsidiary protection are awarded this status. Between October 2006 and October 2010, there were 6, 356 applications made to the Minister for subsidiary protection. 34 grants of subsidiary protection were made and 1,609 applications were refused. There are long delays in considering whether an unsuccessful refugee applicant is entitled to subsidiary protection.