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All Dublin member states examine
whether a foreigner is a ”refugee,” but some of them also
know various sorts of ”humanitarian protection.” It is
based on national or international legal norms. Humanitarian protection
can be based on a legal obligation or discretion. No wonder that the
humanitarian protection practice is different from one country to the
other as the asylum practice is. More or less the same interpretation
questions arise (see "Are
you a refugee?").
Humanitarian protection against forcible return is sometimes accorded
when:
- someone is threatened by the death penalty without being a refugee,
- someone is threatened by torture or inhumane treatment without
being refugee,
- someone needs urgently a medical treatment which is not available
at home,
- someone is in danger at home for another reason (see section "Are
you a refugee?")
- someone has strong family links to a person living in the Dublin
State and one depends on the other,
- a minor wouldn’t be looked after when returned home,
- for other humanitarian reasons (cultural or weak family links).
Can a refugee avoid the application of Dublin II by saying: ”I
apply only for humanitarian protection, but not for asylum”?
Dublin II deals with ”applications for the refugee status” (asylum
applications) and other ”applications for international protection” which
are examined together with the asylum applications. Article 2 of the
Dublin Convention says: ”Any application for international protection
is presumed to be an application for asylum, unless a third-country
national explicitly requests another kind of protection that can be
applied for separately.”
So the following questions have to be answered in your individual
case:
- Can you reach a Dublin State where you will be protected for humanitarian
reasons? If so, the next question arises:
- Does the humanitarian reason applying to you fall under the term "international
protection?" As international conventions protect against forcible return
in most of the above mentioned cases (except the "other humanitarian reasons"),
the answer will normally be "yes." If the answer is "yes" the
last question arises. If the answer is "no" you can jump to
the next paragraph and skip the last question.
- Is it possible in this Dublin State to obtain the humanitarian
protection outside the asylum procedure? If not, you are forced
to apply for asylum
and Dublin II applies.
If you can get humanitarian protection in one Dublin State outside
the asylum procedure you should still check whether you could also
get asylum in the state responsible according to Dublin II. If you
have no chance to get asylum, in the state responsible according to
Dublin II, you should got to the state where you can get humanitarian
protection and clearly say: "I do not apply for asylum, but I
apply for humanitarian protection because .." (give your individual
reasons, indicate the danger at home in detail etc. by following the
rules for asylum procedures).
But if you also could get asylum in the state responsible according
to Dublin II, you have to take a difficult decision between:
- different procedures with different legal rules and remedies,
with different chances of success
- which sometimes take place in different states and
- which aim at a different status. On one hand, the refugee status
is better in most of the states. On the other hand, the step
into the asylum procedure
is a one-way step and forbids sometimes the access to the humanitarian
protection. Therefore we recommend, if ever you have doubts and
you cannot obtain qualified
legal advice in time, to apply for humanitarian protection outside
the asylum procedure first. If it does not work you can still
apply for asylum.
If you decide to apply for humanitarian protection outside the asylum
procedure, you should clearly say: ”I do not apply for asylum,
but I apply for humanitarian protection because ....” (give your
individual reasons, indicate the danger at home in detail etc. by following
the rules
given here. Search for advice by a help organisation for refugees
or a lawyer as soon as possible: Administrations sometimes tend to
push applicants into the asylum procedure by saying ”You have
no choice!”. But whether this is true or not depends partly on
the legal expertise of your counselors.
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