Council Directive 2004/83/EC (the Qualification Directive) sets out the provisions and criteria for granting subsidiary protection (referred to as Humanitarian Protection in the UK). It has been transposed into UK law through The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 and the Immigration Rules. The relevant articles are:
Article 2(e) provides that those who do not qualify as a refugee but face a real risk of serious harm on return to their country of origin from which the national authorities cannot afford sufficient protection, may be eligible for subsidiary protection
Article 15 sets out the definition of serious harm, which includes reference to a serious and individual threat to a civilian's life due to indiscriminate violence in international or internal armed conflict under Article 15(c)
Article 16 sets out when it would be appropriate to cease eligibility for leave, where circumstances which gave rise to the need for protection have ceased to exist or have changed such that protection is no longer needed
Article 17 sets out the circumstances in which someone is excluded from subsidiary protection, which mirrors provisions in Article 12 relating to exclusion from refugee status under the Directive
Article 19 sets out when it would be appropriate to revoke, end or refuse to renew a grant of subsidiary protection and mirrors provisions in Article 14 that relates to revocation of refugee status under the Directive
Humanitarian Protection (HP) application is considered as part of the application for asylum claim. HP is designed to provide international protection where it is needed, to individuals who do not qualify for protection under the Refugee Convention. It covers situations where someone may be at risk of serious harm if they return to their country of origin, but they are not recognised as refugees because the risk is not of persecution for a reason covered by the Refugee Convention.
Humanitarian Protection (HP) is granted where the person has protection needs but where they do not meet the criteria for refugee status. It is granted where the person would, if removed, face in the country of return a serious risk to life or person arising from:
The death penalty;
Unlawful killing; or
Torture or inhuman or degrading treatment or punishment.
Under paragraph 327 of the Immigration Rules any claim for international protection is treated first as an asylum claim. As such the broad principles that apply to considering asylum claims apply equally to considering whether or not a person qualifies for humanitarian protection (HP).
Humanitarian Protection (HP) leave is granted for 5 years and an application for Indefinite Leave to Remain (ILR) can be made after the applicant has completed 5 years residence with Humanitarian Protection (HP) leave.
All those who apply for settlement after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement.
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