Subsidiary Protection in UK Law

The Tribunal received considerable oral and written submissions on one particular issue of subsidiary protection, as provided in Chapter V of Council Directive 2004/83/EC (“the Qualification Directive”): the risk of suffering the form of serious harm identified in article 15(c) of the Qualification Directive, namely, 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.

These can properly be regarded as indiscriminate in the sense that, albeit they may have specific or general targets, they inevitably expose the ordinary civilian who happens to be at the scene to what has been described in argument as collateral damage. The means adopted may be bombs, which can affect others besides the target, or shootings, which produce a lesser but nonetheless real risk of collateral damage.

Our primary focus in these appeals is strictly confined to Article 15(c) of the Qualification Directive, and a discrete issue relating to risk on return to BIAP. However, since this case deals with the current situation in Iraq it will inevitably be a reference point for decision-makers deciding asylum-related appeals brought by Iraqis that are not confined to the Article 15(c) issue.

Nor, however, has the judgment introduced an additional test of exceptionality. By using the words “exceptional” and “exceptionally” it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of article 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety.

First of all, decision-makers are obliged by the structure of the Qualification Directive to give primacy to the issue of eligibility for refugee protection; whereas Articles 15(b) and (c) are species of “subsidiary” protection: see recitals 3, 5. Second, to skip over refugee eligibility would be to lend support to the misconception that persons fleeing armed conflict cannot fall within the Article 1A(2) Refugee Convention definition.

It is primarily for the national court to determine what national claims may be considered to be comparable to the claim based on community law in issue in the proceedings ( Tridimas, page 425). The exercise of that right cannot be deferred compulsorily until a decision which comes within the scope of section 82 of the 2002 Act has been made.

The rights of a refugee, as now provided in national law, and the rights of a person with subsidiary protection status, as provided by the Directive are in many respects similar. They are sufficiently similar, in my judgment, to require national law to provide the person seeking international protection of that kind to have the same remedy of recourse to an independent tribunal against an adverse decision of the Secretary of State as has a person seeking international protection as a refugee.