In the case of C-353/16 MP v Secretary of State for the Home Department, decided yesterday, the Court of Justice of the European Union has found that

A person who has in the past been tortured in his country of origin is eligible for ‘subsidiary protection’ if he faces a real risk of being intentionally deprived, in that country, of appropriate physical and psychological health care [my emphasis].

Who is eligible for “subsidiary protection”?

The EU Qualification Directive 2004/83 is about setting “minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted”. Article 2(e) states that someone who would face a real risk of suffering serious harm if returned to their country of origin should be granted subsidiary protection.

Serious harm is defined at article 15 of the Directive, and includes “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin”.

In other words, someone who does not qualify for refugee status but who would face a real risk of suffering these types of severe ill-treatment in their country of origin should be granted this alternative type of protection instead.

But — as the Court of Justice confirmed in the present case — the fact that a person has in the past been tortured by the authorities of their country of origin is not in itself a reason to be granted subsidiary protection, when they would no longer be at risk of such treatment if returned to that country.

The case of MP

MP is a Sri Lankan national who claimed asylum on the basis that he had been detained and tortured by the Sri Lankan security forces as a member of the Tamil Tigers. He said that, if he returned to Sri Lanka, he would be at risk of further ill-treatment for the same reason.

The Home Office refused MP’s claim. It did not accept that MP would still be at risk of torture if returned to Sri Lanka.

It seems to have been accepted, by the time the case reached the Supreme Court, that MP was suffering from severe post-traumatic stress disorder and serious depression, showed marked suicidal tendencies, and would have been at risk of committing suicide if returned to Sri Lanka. It was also accepted that, in Sri Lanka, MP would not be able to access appropriate physical and psychological treatment.

The Supreme Court decided to ask the Luxembourg court whether, in those circumstances, someone like MP was entitled to subsidiary protection. The justices asked

Does Article 2(e), read with Article 15(b), of Directive 2004/83 cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?

This, then, was the question for the Court of Justice to resolve.

General protection against torture

The court found that the Qualification Directive must be interpreted and applied in a manner that is consistent with the EU’s Charter of Fundamental Rights (much in the news this week), as well as the European Convention on Human Rights (ECHR). Both say that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Relying on case law from the European Court of Human Rights on Article 3 of the ECHR, including the case of Paposhvili v Belgium (application no. 41738/10), the Court of Justice said that

the suffering caused by a naturally occurring illness, whether physical or mental, may be covered by that article if it is, or risks being, exacerbated by treatment, whether resulting from conditions of detention, removal or other measures, for which the authorities can be held responsible, provided that the resulting suffering attains the minimum level of severity required by that article.

and

It follows that Article 4 and Article 19(2) of the Charter, as interpreted in the light of Article 3 of the ECHR, preclude a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.

The UK could not, therefore, return MP where his expulsion would result in significant and permanent deterioration of his mental health disorders.

Subsidiary protection only for those at risk of intentional deprivation of care

So EU member states cannot return those whose health would seriously deteriorate if sent home. But, the court said, it is only if a person is intentionally deprived of health care that they would be eligible for subsidiary protection:

it should be recalled that the Court has held that the serious harm referred to in Article 15(b) of Directive 2004/83 cannot simply be the result of general shortcomings in the health system of the country of origin. The risk of deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection (see, to that effect, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraphs 35 and 36).

The Supreme Court will need to judge whether MP is likely, if returned to Sri Lanka, to face a risk of being intentionally deprived of appropriate care for the physical and mental after-effects resulting from the torture he was subjected to by the authorities of that country.

If the UK were to find that MP will be intentionally deprived of care, then the authorities should grant him subsidiary protection.

If the UK were to find that he will not be deprived of care, but, as it seems has already been found, his physical and psychological mental health would seriously deteriorate, leading to a serious risk of him committing suicide on account of trauma resulting from the torture he was subjected to, then he should still be allowed to remain in the UK — albeit not necessarily be granted subsidiary protection.

Why not grant subsidiary protection?

Subsidiary protection is most commonly known in British immigration law as “humanitarian protection”. Those who are granted humanitarian protection are granted an initial period of five years limited leave to remain, during which they have recourse to public funds. After five years, provided they continue to need protection, they are eligible to apply for indefinite leave to remain in the UK. Those granted humanitarian protection also have the right to family reunion.

If MP, or someone in his position, is not granted subsidiary protection, he will most likely be granted discretionary leave for a period of two and a half years, on a ten year route to settlement. In other words, he will need to build up ten years in the UK before applying for indefinite leave to remain. In addition, he will have no recourse to public funds (unless he can show that one of the exceptions apply), and will have no right to family reunion.

Call me cynical, but I am guessing these are the main reasons the Secretary of State fought this case all the way up to the Supreme Court.