Ireland - High Court, 4 December 2009, M.S.T. v Minister for Justice, Equality and Law Reform [2009] IEHC 529

While the common standards required to be effected by Member States by the Qualification Directive are minimum standards, Recital 8 and Article 3 make it clear that Member States remain free to introduce or maintain more favourable standards for determining who qualifies as a refugee or is eligible for subsidiary protection so long as those standards are compatible with the Directive.

The additional wording can only be construed as intending to permit some limited extension to the conditions of eligibility prescribed in Article 4(4) designed to allow some latitude in according subsidiary protection based exclusively upon the fact of previous serious harm when it is accompanied by compelling reasons. For example, even if the conditions in the country of origin had so changed that no real risk now existed of those events happening again, the trauma already suffered might still be such as to give rise to compelling reasons for not requiring the applicant to return to the locality of the earlier suffering because the return itself could be so traumatic as to expose the applicant to inhuman or degrading treatment.

The additional wording does not operate to create a distinct new criterion for entitlement to subsidiary protection over and above that contained in Article 4(4). Rather, the additional wording is to be regarded as facilitating the application of the basic provision in Article 4(4) by clarifying how evidence of facts and circumstances relating to incidents of previous serious harm may be assessed. The additional words merely allow the protection decision-maker the facility in a case of compelling reasons, to determine eligibility as established without being obliged to be fully satisfied that the harm runs a risk of being repeated.