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, according to a declaration by the European Court of Justice in a ruling delivered on Tuesday 24 April (C-353/16).
MP is a national of Sri Lanka who arrived in the UK in January 2005. MP lodged an application for asylum on the basis that he had been detained and tortured by the Sri Lankan security forces and, if he returned to Sri Lanka, would be at risk of further ill-treatment.
After the UK authorities first rejected his application, MP brought an action against this decision and submitted medical evidence that he was suffering after-effects of the torture, post-traumatic stress disorder and depression.
The British courts upheld the decision not to grant MP subsidiary protection under the terms of the 2004/83 directive on the same grounds that it had not been established that MP would still be at risk if he returned to his home country.
Requested by the Supreme Court of the United Kingdom to hear the case, the Court in turn reiterates the reasons provided by the Advocate General that a person who has been tortured by the authorities of his country of origin but would no longer be at risk of such treatment if he returned to that country is not in itself sufficient justification for that person to be eligible for subsidiary protection (see EUROPE 11890). This would be applicable if there were serious and proven reasons to believe that by sending the person back to their country of origin, the person concerned would face such risk.
The Court notes, however, that MP continues to suffer severe psychological after-effects that would be substantially aggravated if he were returned to his country of origin. In line with the recent case law of the ECHR, the Court of Justice considers that the Charter of Fundamental Rights opposed such removal if it entailed a real and demonstrable risk of significant and permanent deterioration in the state of health of the person concerned.
Therefore, it is for the British Supreme Court to assess, in the light of all current and relevant information (in particular reports by international organisations and non-governmental human rights organisations) whether, in the present case, MP is likely, if returned to his country of origin, 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 in the past by the authorities of that country. (Original version in French by Mathieu Bion)