The lack of appropriate psychological care in the country of origin of a person who was tortured there in the past is not sufficient to allow that person to claim subsidiary protection in an EU member state.
However, the member state in question has the discretionary power to authorise the person’s stay for humanitarian reasons.
These were the conclusions reached by Advocate General Yves Bot on Tuesday 24 October in Case C -353/16, in which the European Court of Justice was asked by the British Supreme court about whether a non-EU national, who is still suffering the effects of torture inflicted in his country of origin, but who is no longer likely to undergo such treatment if he returns there, may receive subsidiary protection under EU Directive 2004/83/EC on the minimum standards for granting non-EU nationals refugee or subsidiary status on the grounds that his psychological conditions would not be treated adequately by the healthcare system in that third country.
The advocate general proposes that the judges say no. He says the directive allows the granting of subsidiary protection only if, in the future, the individual could still risk inhumane treatment or torture in his home country, which is not the case here.
Bot says that the risk of deterioration in the health of the applicant as a result of there being no appropriate treatment in his country of origin (without care being intentionally deprived) is not sufficient to warrant that person being granted subsidiary protection, even if the condition from which the applicant suffers is a consequence of past torture in his country of origin.
In addition, the advocate general says that an interpretation of this directive, read in conjunction with the provisions of the ECHR, always allows member states the option of refusing to grant subsidiary protection to an individual in the situation of the plaintiff, who is suffering from past torture but no longer at risk of torture if he returns to his own country.
Extending the right to subsidiary protection to anyone who has suffered ill treatment or torture in the past would go beyond what was intended by the legislators when they adopted this directive, and would lead to too great an increase the obligations of the member states with regard to subsidiary protection.
Nevertheless, the member state always has the option, on a discretionary and humanitarian basis, of granting leave to remain to such an individual, but this is not covered by the directive in question, the advocate general concluded. (Original version in French by Francesco Gariazzo)