MP (Sri Lanka) v Secretary of State for the Home Department [2016] UKSC 32

A Sri Lankan former LTTE member, tortured by state forces, suffered severe PTSD and suicidality. The UK Supreme Court considered whether his risk on return engaged subsidiary protection under the Qualification Directive and referred the question to the CJEU.

Facts

The appellant, a Sri Lankan national, arrived in the UK in January 2005 aged 28 with leave to enter as a student. After his leave expired, he claimed asylum on 5 January 2009, asserting that he had been a member of the Liberation Tigers of Tamil Eelam (LTTE) and had been detained and tortured by Sri Lankan security forces. The Secretary of State accepted the core of his account but refused asylum, finding he would not be of continuing interest to the Sri Lankan authorities.

The Upper Tribunal had medical evidence that scarring on the appellant’s body was “highly consistent” with his account of being beaten, burned with cigarettes and an iron bar, and cut with a knife. Psychiatric evidence showed he was suffering severe post-traumatic stress disorder and severe depression, with a high degree of suicidality and a serious determination to kill himself if returned to Sri Lanka. Mental health resources in Sri Lanka were extremely limited, with only 25 working psychiatrists in the country.

The Upper Tribunal rejected his appeal under the Refugee Convention and the Qualification Directive, finding no continuing interest by the Sri Lankan authorities, but allowed his appeal under article 3 ECHR on the basis that his return would expose him to inadequate mental health treatment and a serious risk of suicide. The Court of Appeal upheld that decision.

Issues

The central issue was whether the appellant was entitled to “subsidiary protection status” under articles 2(e) and 15(b) of EU Council Directive 2004/83/EC (the Qualification Directive), where the serious harm feared on return arose from the future deterioration of mental health caused by past torture inflicted by the state, rather than from a future risk of repetition of ill-treatment.

Arguments

Appellant

The appellant submitted that the Upper Tribunal and Court of Appeal took too narrow a view of the Qualification Directive. His mental illness should not be regarded as a “naturally occurring illness” because it was caused by torture at the hands of the Sri Lankan authorities. Just as the Upper Tribunal found a breach of article 3 ECHR in light of his history of state ill-treatment and the inadequacy of treatment facilities, it should equally have found him entitled to subsidiary protection. It made no difference that there was no longer a risk of repetition of the ill-treatment causing his condition.

Respondent

The Secretary of State argued that a necessary component of subsidiary protection is a risk of serious harm in the country of origin for which the home state will be responsible, either by inflicting it or by failing to protect against non-state actors. The Directive targets future ill-treatment, not the potential future consequences of past ill-treatment where there is no risk of repetition.

Judgment

Lord Toulson, with whom Lord Neuberger, Lady Hale, Lord Kerr and Lord Hughes agreed, observed that the Court of Appeal had relied on the decision of the European Court of Human Rights in N v United Kingdom (2008) 47 EHRR 39, which treated health-based article 3 cases as a special category applicable only in very exceptional circumstances, on the basis that future harm in such cases emanates from naturally occurring illness rather than from intentional acts or omissions of public authorities.

The Supreme Court was referred to authorities of the CJEU, including M’Bodj v Kingdom of Belgium (Case C-542/13) [2015] 1 WLR 3059, and of the European Court of Human Rights, but found that none was precisely in point. The Court concluded that the question of principle raised was debatable and should therefore be referred to the Court of Justice of the European Union.

The question referred was whether article 2(e), read with article 15(b), of the Qualification Directive covers 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.

Implications

The decision is significant because it raises a previously unresolved question about the scope of subsidiary protection under EU law: whether protection extends to applicants whose serious harm on return would arise not from a risk of future state ill-treatment but from the lasting psychological consequences of past state-inflicted torture, combined with inadequate medical treatment in the country of origin.

The case is of particular importance to survivors of torture who are no longer of interest to the authorities of their home state but who suffer enduring psychiatric harm. It also clarifies the relationship between article 3 ECHR jurisprudence (especially in health-related cases such as N v United Kingdom) and the Qualification Directive, an issue the CJEU has yet to address directly. The Supreme Court did not itself decide the substantive question, instead leaving it to the CJEU to determine whether the causative link between past state-inflicted torture and current health risks brings such applicants within the scope of subsidiary protection.

Verdict: The Supreme Court referred the question of the scope of articles 2(e) and 15(b) of the Qualification Directive to the Court of Justice of the European Union for a preliminary ruling, rather than determining the appeal itself.

Source: MP (Sri Lanka) v Secretary of State for the Home Department [2016] UKSC 32