If an asylum seeker is not a refugee within the meaning of the Refugee Convention, he or she may be eligible for subsidiary protection. This matter is dealt with in the Directive 2011/95/EU, a European directive which contains minimum standards that all EU Member States must comply with.

According to Article 2(e) and Article 18 of the Directive 2011/95/EU, persons are eligible for a subsidiary protection status if there are substantial grounds for believing that they would face a real risk of suffering serious harm if they return to the country they came from.

Serious damage entails, according to Article 15 of Directive 2011/95/EU:

1. the death penalty or an execution;
2. torture or inhuman or degrading treatment or punishment of an asylum seeker in the country of origin; or
3. he or she faces serious and individual threats as a result of indiscriminate violence in the context of an international or internal armed conflict.

The a-category is based on article 2 of the European Convention on Human Rights (ECHR).

The serious damage mentioned under b is identical to the serious damage mentioned in Article 3 ECHR and Article 4 of the Charter of Fundamental Rights of the EU. Article 3 ECHR also prohibits that a person may be expelled to a country where he or she will face treatment prohibited by Article 3 ECHR. An expulsion in violation of Article 3 ECHR is referred to as 'refoulement'.

An important difference between the refoulement ban in Article 3 ECHR and refoulement ban in the Refugee Convention is that Article 3 ECHR does not require a persecution ground as mentioned in the Refugee Convention, such as, for example, race and religion. This means that an asylum seeker who, for personal reasons, has problems with the authorities in his or her country of origin can invoke Article 3 ECHR, but not the Refugee Convention. Furthermore, Article 3 ECHR is unconditional and absolute. Even if the asylum seeker has committed a serious crime, he or she may not be expelled. Asylum seekers who have committed very serious crimes, however, do not fall within the scope of the Refugee Convention (Article 1F and Article 33(2)).

Artikel 15c of the Directive 2011/95/EU

The c-category was introduced in 2004. Since then it was possible to grant asylum permit to civilians who fear serious and individual threat(s) as a result of indiscriminate violence in the context of armed conflict. Such a situation is now also referred to as a 15c situation.

According to the current policy, when assessing whether an exceptional 15c situation exists, the IND takes the following elements into account:

• whether parties to the conflict use methods of war that increase the risk of civilian casualties or target civilians;
• whether the use of these methods is widespread among the conflicting parties;
• whether the violence is widespread or local; and
• the amount of deaths, injuries and displacements of civilians as a result of the fighting.

In the current policy of the INS, the INS stated if a situation in a certain country or part of a country qualifies as a 15c-situation. If an asylum seeker comes from a 15c-area, a residence permit may still not be granted due to the fact that, according to the INS, there is a settlement alternative for that person in another part of the country.

Do you want to know whether you should be granted a subsidiary protection status on the basis of Article 15 of the Directive 2011/95/EU and if a settlement alternative is foreseeable in your case? Register your case for free and without any obligations using the form on our website or contact one of our asylum attorneys by telephone at 013 53 53 8885.