CJEU finds subsidiary protection can be granted where persons face intentional deprivation of physical and psychological care in home country
The European Court of Justice (CJEU) has ruled that under the European Convention on Human Rights (ECHR), a person who was subjected to torture in their home country may be eligible for subsidiary protection if they risk being intentionally deprived of appropriate care for the physical and mental effects arising from that torture.
Under the Council Directive 2004/83/EC on minimum standards for qualification and status of third country nationals who need international protection, minimum standards are set for the granting of subsidiary protection. This is a form of international protection afforded to people seeking asylum who do not qualify as refugees. A person who may be subjected to serious harm upon return to their country of origin may receive subsidiary protection.
MP, a Sri Lankan citizen, was a member of the Liberation Tigers of Tamil Eelam, a secessionist paramilitary group involved in the Sri Lankan Civil War. During the conflict, he had been detained and tortured by members of the Sri Lankan security forces. He arrived in the UK in 2005 and was granted leave to remain as a student, and eventually applied for asylum on the grounds that if he was to return to Sri Lanka, he would be again subjected to mistreatment.
His application was rejected as the UK authorities believed that it could not be established that MP would be at risk of further ill-treatment if he returned to his country of origin. MP appealed this decision in the UK Upper Tribunal, supplied substantiated medical evidence revealing the after-effects of the torture, such as post-traumatic stress disorder and suicidal tendencies. The Upper Tribunal upheld the previous decision not to grant subsidiary protection but recognised that if the UK was to return MP to Sri Lanka he would not get appropriate mental health care, which would be in violation of the ECHR.
The UK Supreme Court subsequently referred the matter to the CJEU for a preliminary hearing. The CJEU stated that a person who was subjected to torture by the government in their home country, but that there was no longer a considerable risk of subjection to that treatment again, did not qualify for subsidiary protection. The subsidiary protection regime applies to protect the individual against a real risk of serious harm if returned to his country of origin, which implies that substantial grounds must be shown for believing that the person concerned, if returned to that country, would face such a risk. This is not the case where there are good reasons for believing that the serious harm previously suffered will not be repeated or continuous.
The ECHR, along with the Charter of Fundamental Rights of the EU, prevents the removal of a non-EU national to their country of origin where this would result in major deterioration of that person’s mental state, in particular where this deterioration could endanger that person’s life. Conversely, this does not mean that this person would be entitled to subsidiary protection, and the Court was of the opinion that aggravation of MP’s poor health resulting from the torture cannot in itself be regarded as inhuman or degrading treatment.
However, the CJEU found that this risk of deterioration of mental health of a non-EU national upon return to their home country was not adequate to grant subsidiary protection, unless that person faced a real risk of being intentionally deprived of the necessary care. The CJEU found that it is for the Supreme Court to assess, in light of all current and relevant information (in particular reports by international organisations and non-governmental human rights organisations) whether, in the present case, MP is likely, if returned to his country of origin, to face a risk of being intentionally deprived of the necessary care. In light of this, the UK Supreme Court ruled that MP was likely be intentionally deprived of the appropriate care for the physical and mental after-effects of the torture he suffered at the hands of the Sri Lankan authorities.
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