The international protection status of Subsidiary Protection was introduced at EU level by the “Qualification Directive” in 2004. It aims to cover persons seeking international protection within the EU who do not meet the legal definition of a Refugee but are nonetheless at a real risk of suffering serious harm in their home countries.
The status was transposed into Irish law in 2006 under the European Communities (Eligibility for Protection) Regulations 2006. The government introduced a two stage application procedure whereby protection applicants can only apply for Subsidiary Protection status after they have been refused Refugee status. This meant that an applicant might be in the State for many years before he or she was given the opportunity to apply for Subsidiary Protection. This two-stage application process is unique to Ireland while all other EU Member States allow both applications to be made at the same time.
The applicant in Nawaz argued that the Irish system is incompatible with EU Law because it does not allow persons to apply for Subsidiary Protection without first having been refused Refugee status. The Court of Justice of the European Union (CJEU) found that it is legitimate for Member States to require that an applicant be refused Refugee status before their Subsidiary Protection application is determined. However, the Court held that Member States are required to permit persons to submit an application for both statuses at the same time. This judgment will have a significant impact on the Irish system of protection which has already been the subject of much criticism in recent years. In particular, it would seem that it is no longer possible for the Minister for Justice and Equality to refuse to accept Subsidiary Protection applications from individuals who are entering or are already within the Refugee application procedure.