This Directive applies to all EU Member States except Denmark. The Directive was published in the Official Journal of the EU on 30 September 2004 and came into force twenty days later. Member States were required to bring into force domestic legislation necessary to comply with the Directive by 10 October 2006. Ireland ‘opted-in’ to the Directive pursuant to Article 3 of the Protocol on the position of the United Kingdom and Ireland by way of notification dated 13 February 2002. In Ireland, the Directive is currently given domestic effect by the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006). The Immigration, Residence and Protection Bill 2008 proposes a new statutory scheme to comply with the Directive’s provisions.
The purpose of this Directive is to establish minimum standards for the qualification of third country nationals and stateless persons as refugees or beneficiaries of subsidiary protection within the Member States, and also the minimum levels of rights and benefits attached to the protection granted. The Directive also sets out the benefits to be enjoyed by family members of the beneficiaries of refugee status or subsidiary protection status. Member States can apply more favourable standards than those set out in the Directive.
The Directive obliges Member States to grant asylum to refugees, and Member States are expressly obliged to grant subsidiary protection to those eligible. The Directive defines “refugee” in terms similar to Refugee Convention, with the limitation that it can only apply to persons who are third country nationals and stateless persons. Article 10 provides guidance for each of the recognised Refugee Convention “Grounds” of race, religion, nationality, political opinion, and membership of a particular social group. With regard to the latter ground, Article 10(d) states that a group shall be considered to form a particular social group where in particular members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. The same section also states that, “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation.”