COMPARATIVE STUDY OF THE MIGRATION PROGRAM – Subsidiary forms of protection
The eighth chapter of the comparative study analyzes the implementation of a EU directive which stipulates the minimum provisions governing temporary protection in the event of a mass influx of displaced persons. This chapter will be expanded to include a comparison with the leave-to-remain practice based on the principle of non-refoulement in France and perhaps also other European countries.
Summary:
Subsidiary forms of protection are those types of residency permits in a given country that may be granted to persons who do not fulfill the criteria for granting an asylum, but need a certain (weaker) level of protection.
In the Czech legal system, this includes providing a safe haven to persons escaping en masse from a major social or natural catastrophe (‘temporary protection’) and helping to solve a difficult situation in which a person may find himself (‘leave to remain’ or granting residency or asylum for humanitarian reasons).
Within the European Union, the temporary protection regime is harmonized and coordinated under the Council Directive No.2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof which the Czech Republic adopted into the Czech legal system by means of a separate act. Although this act complies with the minimum standards stipulated by the directive, it balances at the bottom level of these standards and contains a number of unnecessarily harsh provisions, both from the perspective of respect for human rights and from the perspective of its utility for displaced persons and the Czech Republic.
Leave to remain covers two possibilities under which foreigners may be granted the right to remain on the territory of a state:
a) impossibility to leave (e.g. for technical or medical reasons),
b) the non-refoulement principle prohibits the state from forcing a person to leave and travel into a country where this person would face certain danger (based on international human rights treaties in force).
Humanitarian reasons, the review of which is more at the discretion of public officials, may lead to granting asylum or a permanent residency permit to a person, which gives such a person a much higher and more secure residency status than a leave to remain visa.
Compared to the Czech Republic, the reasons for granting a residency permit due to a foreigner’s difficult situation in most EU member states are better and more logically structured and often also more focused on certain target groups requiring special assistance (e.g. underage children, victims of trafficking ready to testify against the perpetrators, asylum applicants whose asylum proceedings are excessively long and who are already socially integrated).
Summary:
Subsidiary forms of protection are those types of residency permits in a given country that may be granted to persons who do not fulfill the criteria for granting an asylum, but need a certain (weaker) level of protection.
In the Czech legal system, this includes providing a safe haven to persons escaping en masse from a major social or natural catastrophe (‘temporary protection’) and helping to solve a difficult situation in which a person may find himself (‘leave to remain’ or granting residency or asylum for humanitarian reasons).
Within the European Union, the temporary protection regime is harmonized and coordinated under the Council Directive No.2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof which the Czech Republic adopted into the Czech legal system by means of a separate act. Although this act complies with the minimum standards stipulated by the directive, it balances at the bottom level of these standards and contains a number of unnecessarily harsh provisions, both from the perspective of respect for human rights and from the perspective of its utility for displaced persons and the Czech Republic.
Leave to remain covers two possibilities under which foreigners may be granted the right to remain on the territory of a state:
a) impossibility to leave (e.g. for technical or medical reasons),
b) the non-refoulement principle prohibits the state from forcing a person to leave and travel into a country where this person would face certain danger (based on international human rights treaties in force).
Humanitarian reasons, the review of which is more at the discretion of public officials, may lead to granting asylum or a permanent residency permit to a person, which gives such a person a much higher and more secure residency status than a leave to remain visa.
Compared to the Czech Republic, the reasons for granting a residency permit due to a foreigner’s difficult situation in most EU member states are better and more logically structured and often also more focused on certain target groups requiring special assistance (e.g. underage children, victims of trafficking ready to testify against the perpetrators, asylum applicants whose asylum proceedings are excessively long and who are already socially integrated).
24. 5. 04