Refugee Newsletter - unhcr

Complementary ProtectionComplementary Protectionand Australian Practiceby the Department ofImmigration, Multicultural andIndigenous Affairs (DIMIA)The 1951 United Nations ConventionRelating to the Status of Refugees is thecornerstone of the international protectionof refugees. A full and inclusiveapplication of the Refugees Conventionensures that persons who meet itsrequirements are recognized as refugeesand are protected.The Refugees Convention does notprovide for protection of people who donot meet the Convention definition of arefugee. Practices which have come to beknown as “complementary protection” areused by some European countries toprovide temporary or permanentresidence to people who are not owedrefugee protection. The concept has beendeveloped in individual countries throughdomestic legislation and is not defined orspecified in any international treaty.The nature and application ofcomplementary protection differs betweencountries. It can include permanent ortemporary residence on various groundsbased on humanitarian concerns,obligations under international humanrights treaties, or judgement by a State asto whether it is unsafe, inappropriate ornot practicable to effect return to thecountry of origin. In general, the practicein those countries which offercomplementary protection is that it affordsfewer benefits and entitlements than thoseprovided to refugees.For example, in the UK, a persongranted ‘humanitarian protection’ is initiallygiven a three-year residence permit,access to social security and health careand limited travel rights, but is not eligiblefor family reunion. They may apply at theend of the three-year period for indefiniteleave to remain. Applications for indefiniteleave to remain are assessed to determinewhether the applicant still qualifies forhumanitarian protection. It may be refusedif protection is no longer required. Manyother European countries (such asDenmark, Finland, France, Germany, theNetherlands) provide temporary residenceinitially to persons with complementaryprotection status with varying standards ofaccess to benefits. Family reunion may beavailable in some countries (eg Denmark)but not in others (eg Germany).Countries providing some form ofcomplementary protection often havelower refugee status approval rates than isthe case in Australia for applicants of agiven nationality. In Europe, there is atendency for complementary protectionstatus to be granted more often thanrefugee status. For example, in 2002, theUK granted only 10% of asylumapplications from asylum seekers onRefugee Convention grounds, but over21% were given some status onhumanitarian or other grounds. Swedengranted only 1.1% of asylum applicationsfrom asylum seekers on Conventiongrounds, but over 20% were grantedsome status on humanitarian or othergrounds 1 . By comparison, Australiaprovided protection under the RefugeesConvention to 29.4% of asylum seekers in2001/02. 2Whilst other countries continue to havequite different practices with regards tocomplementary protection, it appears theEuropean Commission is moving towardsharmonising the approach tocomplementary protection (termed‘subsidiary protection’) in European Unioncountries. The Council Directive on‘Minimum Standards for the Qualificationand Status of Third Country Nationals andStateless Persons as Refugees or asPersons Who Otherwise Need InternationalProtection’ was adopted in April 2004. ThisDirective provides a framework for aninternational protection regime based onexisting international refugee and humanrights instruments obligations, whichemphasises the primacy of refugee status.Member States are required to haveimplementing national legislation in placeby October 2006.The EC Council Directive sets outminimum standards, with flexibility forStates to give lesser benefits to holders ofcomplementary protection (subsidiaryprotection) reflecting the potentially moretemporary nature of this category. Forexample, the Directive dictates thatpersons with subsidiary protection statusare provided with an initial one yearresidence permit, automatically reneweduntil protection is no longer required.Member states need only issue traveldocuments to persons withcomplementary protection status whenthey are unable to obtain a nationalpassport from their consular authorities.Access to social security is immediate andaccess to employment is available aftersix months of subsidiary protection status.Australia’s commitment to assistingrefugees and others in humanitarian needis reflected in its Humanitarian Program.Under this program Australia resettlessome of the refugees in greatest need ofprotection and others of humanitarianconcern and provides protection torefugees who arrived in Australia whoDiscussion Paper No. 2/20057