CJEU – C-353/16, MP v Secretary of State for the Home Department

Facts:

MP, a national of Sri Lanka, arrived in the UK in 2005 and obtained a leave to remain as a student until 30 September 2008. In January 2009, he lodged an application for asylum on the grounds that he had been a member of the “Liberation Tigers of Tamil Eelam” and for this reason had been detained and tortured in Sri Lanka; he alleged that, if returned to Sri Lanka, he would be at risk of further ill-treatment for the same reason.

The competent national authority did not accept that MP was likely to be still of interest to the authorities in Sri Lanka and rejected the application.

MP brought an action against the decision before the Upper Tribunal. Medical evidence was submitted to that court that MP was suffering the after-effects of torture, severe post-traumatic stress disorder and serious depression; that the applicant showed marked suicidal tendencies and seemed determined to kill himself if returned to Sri Lanka. The Tribunal rejected the action insofar as it was based on the 1951 Geneva Convention on the Status of Refugees and on Directive 2004/83. However, the court ruled that, given the dire conditions of the mental health services in Sri Lanka, Article 3 of the ECHR precluded MP from being removed from the UK.

MP appealed the decision claiming that the court had taken too narrow a view of the scope of Directive 2004/83 and that he was entitled to subsidiary protection under Articles 2 and 15 of said Directive. The Court of Appeal upheld the judgment of the Upper Tribunal; the Supreme Court of the UK referred the following question to the CJEU: “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?”

Decision & reasoning:

Under Article 2(e) of Directive 2004/83, a third country national is eligible for subsidiary protection only if substantial grounds have been shown for believing that the person concerned, if returned to his country of origin, would face a real risk of suffering serious harm. The definition of serious harm under Article 15(b) includes torture or inhuman or degrading treatment or punishment. The fact that the person concerned has in the past been subject to serious harm is a significant indication that he faces a real risk of suffering such harm again; however, this rule does not apply when there are good reasons to consider that the serious harm will not be repeated (Article 4(4)).

Article 15(b) must be interpreted in accordance with Article 4 of the Charter of Fundamental Rights of the EU (prohibition of torture and inhuman or degrading treatment). Moreover, under Article 52(3) of the CFREU, the meaning and scope of Article 4 of the CFREU are the same as those of Article 3 of the ECHR.

In this regard, the case-law of the ECtHR sets forth that Article 3 may preclude the deportation of a person suffering from a naturally occurring illness if (1) the suffering is (or risks being) exacerbated by treatment for which the authorities can be held responsible and (2) the suffering attains a minimum level of severity. The same level of severity must be attained when the illness is not naturally occurring; in this case, however, it is not relevant if the lack of care that would be available to the deported person is attributable or not to intentional acts or omissions of the receiving State. In particular, the threshold of severity is met where the person is at risk of imminent death or where, if returned to his country of origin, he would face a real risk of suffering a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy.

A similar threshold has been adopted also by the CJEU in considering Articles 4 and 19(2) of the CFREU. In particular, in the case of a serious psychiatric illness, both the consequences of physically transporting the person concerned to the third country and all the significant and permanent consequences of the removal must be taken into account (C.K. and Others, C-578/16).

It follows that Articles 4 and 19(2) of the CFREU, as interpreted in the light of Article 3 of the ECHR, preclude the expulsion of a third country national when such expulsion would result in significant and permanent deterioration of that person’s mental health.

However, it is important to note that the present case does not concern the protection against removal deriving from the prohibition on exposing a person to inhuman or degrading treatment; on the contrary, the referring court inquires whether Directive 2004/83 must be interpreted, in the present circumstances, as to entitle MP to subsidiary protection.

The CJEU has previously held that the fact that a person cannot be repatriated under Article 3 of the ECHR (as outlined above) does not imply that that person should be granted a leave to reside in the host country by way of subsidiary protection (M’Bodj, C-542/13). However, unlike in the M’Bodj case, both the fact that the current state of health of MP was caused by acts of torture inflicted by the authorities of his country of origin in the past, and that, if returned to Sri Lanka, his mental health disorders would be substantially aggravated, are relevant factors to be taken into account. Nevertheless, such aggravation cannot, in itself, be regarded as inhuman or degrading treatment within the meaning of Article 15(b) of Directive 2004/83. Indeed, the Court has held that, in order for the person concerned to be granted subsidiary protection, he must be intentionally deprived of health care (M’Bodj).

Although Article 14 of the Convention against Torture (UNCAT) recognizes the right to obtain redress  to victims of torture, violations of such obligation, given the distinct areas covered by Directive 2004/83 and the UNCAT, cannot automatically result in eligibility for subsidiary protection.

Outcome:

Articles 2(e) and 15(b) of Directive 2004/83 must be interpreted as meaning that a third country national, in the present circumstances, is eligible for subsidiary protection only if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of torture. It is for the national court to determine whether, if repatriated, the person concerned would be exposed to such a risk.