Ireland - High Court, 4 December 2009, M.S.T. v Minister for Justice, Equality and Law Reform [2009] IEHC 529
Keywords:
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks 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.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
This case concerned the interpretation of Article 4(4) of the Qualification Directive and the transposing Irish measure, which had added certain wording. The Court noted that the Directive left it open to Member States to introduce more favourable standards so long as they are compatible with the Directive. The Court held that the additional wording merely allowed a decision-maker in a case of compelling reasons, to determine eligibility for subsidiary protection as established without being obliged to be fully satisfied that previous serious harm inflicted upon an applicant runs a risk of being repeated.
Facts:
The applicants were mother and daughter and were ethic Serbs who came from Croatia to Ireland in September 2004 and applied for asylum. They claimed to have suffered violence, threats and intimidation as a result of which they suffered from serious mental health problems. Their asylum application was refused at first instance and appeal and an application was made to the Minister for subsidiary protection.
The transposing legislation had added to the wording of Article 4(4) of the Qualification Directive “but compelling reasons arising out of previous serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection”.
Decision & reasoning:
While the common standards required to be effected by Member States by the Qualification Directive are minimum standards, Recital 8 and Article 3 make it clear that Member States remain free to introduce or maintain more favourable standards for determining who qualifies as a refugee or is eligible for subsidiary protection so long as those standards are compatible with the Directive.
The additional wording can only be construed as intending to permit some limited extension to the conditions of eligibility prescribed in Article 4(4) designed to allow some latitude in according subsidiary protection based exclusively upon the fact of previous serious harm when it is accompanied by compelling reasons. For example, even if the conditions in the country of origin had so changed that no real risk now existed of those events happening again, the trauma already suffered might still be such as to give rise to compelling reasons for not requiring the applicant to return to the locality of the earlier suffering because the return itself could be so traumatic as to expose the applicant to inhuman or degrading treatment.
The additional wording does not operate to create a distinct new criterion for entitlement to subsidiary protection over and above that contained in Article 4(4). Rather, the additional wording is to be regarded as facilitating the application of the basic provision in Article 4(4) by clarifying how evidence of facts and circumstances relating to incidents of previous serious harm may be assessed. The additional words merely allow the protection decision-maker the facility in a case of compelling reasons, to determine eligibility as established without being obliged to be fully satisfied that the harm runs a risk of being repeated.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| Ireland - High Court, 24 April 2008, F.N. v Minister for Justice, Equality and Law Reform [2008] IEHC 107 |
| ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89) |
| ECtHR - Tyrer v UK (Application no. 5856/72) |
| Ireland - Meagher v Minister for Agriculture [1994] 1 IR 329 |