Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 83Persons granted complementary protection must benefit from guaranteesunder international human rights law applicable to non-nationals.173 In this regard, the UNHCR ExCom has encouraged States, “ingranting complementary forms of protection to those persons in needof it, to provide for the highest degree of stability and certainty by ensuringthe human rights and fundamental freedoms of such personswithout discrimination, taking into account the relevant internationalinstruments and giving due regard to the best interest of the child andfamily unity principles”. 174As to the procedure to determine whether someone is entitled to complementaryprotection, the UNCHR ExCom has recommended establishinga comprehensive procedure to assess both refugee status and otherinternational protection needs, so that refugee protection would not beundermined by the granting of complementary protection. 175 Regardingthe cessation of complementary protection, the same body recommendedthat States draw guidance from the refugee criteria, and “adopt criteriawhich are objective and clearly and publicly enunciated”. 176c) Discretionary Forms of ProtectionSome States have provisions allowing them to grant in a discretionaryway protection for “humanitarian” or “compassionate” reasons.In certain cases they may arise from the obligations of States underArticle 1(C)(5) of the Geneva Refugee Convention which excludes thecessation of the application of the Convention for “a refugee [. . .] whois able to invoke compelling reasons arising out of previous persecutionfor refusing to avail himself of the protection of the country of nationality”.177 In other cases, they are used by the State as systems of protectionfor those situations of impossibility of expulsion or rejection ofthe person on international human rights law grounds (see, Chapter 2,Section III), when those situations are not expressly considered by thedomestic system of complementary protection. Finally, these forms ofprotection are also used to cover situations which generally do not relyon an international law obligation for their application. In such cases,the need for protection might be inspired by international human rightslaw, but the granting is at the discretion of the State. These last situationsmay occur, for example, in cases of serious threats to the healthof the person.173 See, Conclusion No. 103, UNHCR, op. cit., fn. 143, para. n. See also Ruma Mandal, op. cit.,fn. 142, p. xiii.174 Ibid., para. m.175 Ibid., para. q.176 Ibid., para. o.177 Article 1C(5), Geneva Refugee Convention.