The Standard of Proof in Complementary Protection Cases: Comparative Approaches in North America and Europe

Abstract

Though the title of this paper implies a technical and comparative legal analysis of the standard of proof in complementary protection claims vis-à-vis Convention refugee claims, this is only part of its substance. Indeed, while the standard of proof has become a central distinguishing feature in the Canadian context between attaining protection as a 'refugee' or as a 'person in need of protection', this debate has been largely absent from the EU arena. Nevertheless, high evidentiary burdens, combined with a haphazard consideration of the three possible grounds for subsidiary protection in the EU, mean that as in Canada, subsidiary protection status cannot be regarded as a residual status for people who would be Convention refugees but for the absence of a nexus with one of the five Convention grounds. Accordingly, this paper focuses on the legal impediments to obtaining subsidiary protection in the EU that have manifested themselves in the 18 months since the Qualification Directive entered into force for the EU Member States. Its particular issue is article 15(c), which extends protection to those facing serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict. This paper examines how article 15(c) has been interpreted in the jurisprudence of a number of EU Member States and demonstrates why it is not functioning effectively as a complementary form of protection.

Keywords: Human Rights Law, International Law, complementary protection, refugees