The Supreme Court considered whether a Sri Lankan national whose severe mental illness resulted from past torture by the authorities was entitled to subsidiary protection under the EU Qualification Directive on return, despite no continuing risk of ill-treatment. The Upper Tribunal and Court of Appeal had rejected that claim while allowing his appeal under article 3 of the European Convention on Human Rights because of the suicide risk and inadequate care in Sri Lanka. Finding the scope of the Directive debatable, the Supreme Court referred a question of interpretation to the Court of Justice of the European Union.
The appellant, a Sri Lankan national, arrived in the United Kingdom in January 2005 aged 28 and was granted leave to enter as a student, later extended to 30 September 2008. A further extension was refused on 11 December 2008. On 5 January 2009 he claimed asylum. He said that he had been a member of the Liberation Tigers of Tamil Eelam, had been detained and tortured by the Sri Lankan security forces, and would face further ill-treatment if returned.
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The Home Secretary accepted the core of MP’s account but considered that he was no longer of interest to the Sri Lankan authorities. Medical evidence before the tribunal linked severe mental illness and a risk of self-harm to the torture and the prospect of return.
The Upper Tribunal and Court of Appeal
The Upper Tribunal accepted that the appellant had a genuine fear of return and found it difficult to trust officials because of his past torture. It dismissed his appeals under the Refugee Convention and the Qualification Directive because it did not accept that he was of any continuing interest to the Sri Lankan authorities. It allowed his appeal under article 3 of the European Convention on Human Rights. Having regard to the gravity of his past ill-treatment, the severity of his illness and the sparse mental health facilities in Sri Lanka (largely confined to cities and not providing appropriate care), the Tribunal was not satisfied that return would comply with article 3.
The Court of Appeal upheld that outcome. Maurice Kay LJ, with whom the other members of the court agreed, held that the Qualification Directive was not intended to catch article 3 cases in which the risk is to health or of suicide rather than of persecution. Drawing on the approach in health cases, he treated the alleged future harm as arising from illness and lack of resources rather than from intentional acts, and considered that reliance on the state’s past responsibility for the illness stretched subsidiary protection too far.
Arguments and the Supreme Court’s approach
The appellant contended that the lower courts had taken too narrow a view of articles 2 and 15 of the Qualification Directive. His illness should not be treated as naturally occurring, because it had been caused by torture for which Sri Lanka was responsible. On the facts accepted for the article 3 claim, he argued that he was entitled to subsidiary protection even though there was no longer a risk that the original ill-treatment would be repeated.
The Secretary of State argued that subsidiary protection requires a risk of serious harm, as defined in article 15, in the country of origin for which that state will be responsible, either by inflicting the harm or by being unable or unwilling to protect against it. On this view the Directive addresses future ill-treatment, not the later consequences of past ill-treatment where there is no risk of repetition.
Lord Toulson, with whom Lord Neuberger, Lady Hale, Lord Kerr and Lord Hughes agreed, noted that the authorities to which the court had been referred, including a decision of the Court of Justice, were not precisely in point. The question of principle was therefore debatable and required a reference.
Verdict: The Supreme Court referred the EU-law question to the Court of Justice. It asked whether subsidiary protection could extend to a real risk of serious harm to health on return resulting from earlier torture or inhuman treatment by the state of origin. This judgment did not decide MP’s entitlement.
Source: MP (Sri Lanka) v Secretary of State for the Home Department [2016] UKSC 32
