Subsidiary Protection

'Subsidiary protection' is the terminology used in EU asylum law — most fully in the recast Qualification Directive, Directive 2011/95/EU — for international protection granted to a person who does not meet the Refugee Convention definition of a refugee but who nonetheless cannot safely be returned home. The Directive defines a 'person eligible for subsidiary protection' as 'a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin ... would face a real risk of suffering serious harm as defined in Article 15 ... and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country'.

The United Kingdom does not use the label 'subsidiary protection' in its own domestic immigration law, either before or after Brexit. The equivalent UK status has always been called 'Humanitarian Protection', implemented through the Immigration Rules. Paragraph 327EA of Part 11 of the Immigration Rules defines 'a claim for humanitarian protection' as 'a request by a person for international protection due to a claim that if they are removed from or required to leave the UK, they would face a real risk of suffering serious harm ... in their country of origin, and they are unable, or owing to such risk, unwilling to avail themselves of the protection of that country' — closely mirroring the EU concept of subsidiary protection in substance, even though the UK measure has never adopted the EU's own terminology.

Serious harm for the purposes of UK humanitarian protection is defined in the Immigration Rules to include the death penalty or execution, unlawful killing, torture or inhuman or degrading treatment, and serious and individual threat to a civilian's life from indiscriminate violence in armed conflict — the same categories of harm addressed by the EU subsidiary protection concept. A person granted humanitarian protection under the Immigration Rules receives a form of limited leave to remain distinct from refugee status, in the same way that a beneficiary of subsidiary protection under EU law receives a status distinct from — though closely parallel to — refugee status.