The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime

Abstract

The European Union Qualification Directive is the first supranational instrument to seek to harmonize complementary protection (termed "subsidiary protection" in the EU). Though it has shifted complementary protection beyond the realm of ad hoc domestic practices to a codified regime, it entrenches a protection hierarchy that unjustifiably differentiates between the rights and status accorded to Convention refugees vis-a-vis beneficiaries of subsidiary protection. This article traces the development of the Qualification Directive by examining preparatory documents and drafting records. It discusses changes to the categories of persons granted subsidiary protection as well as to the substantive rights attaching to that status. In particular, it criticizes the narrowing-down of originally proposed categories of persons eligible for subsidiary protection, arguing that omitting to provide for known groups of extra-Convention refugees does not eliminate them, but simply creates new categories of unprotected persons. It also highlights the absence of any international legal basis on which to base distinctions between the rights granted to Convention refugees vis-a-vis beneficiaries of subsidiary protection. It concludes that the Qualification Directive represents a regional, political manifestation of the broader legal concept of complementary protection, and as such does not provide a model for emulation at the international level.

Keywords: refugees, complementary protection, subsidiary protection, asylum seekers, protection, human rights, qualification directive, international law, Refugee Convention, Convention against Torture, European Convention on Human Rights, European Union, non-refoulement

JEL Classification: K33, K39