MP v Secretary of State for the Home Department

It is unresolved whether subsidiary protection under article 2(e), read with article 15(b), of the Qualification Directive extends to a real risk of serious physical or psychological harm on return which results from past torture or inhuman or degrading treatment attributable to the country of origin, where there is no continuing risk of such ill-treatment.

Existing European authority did not determine that question. Since the point was debatable, the Supreme Court referred it to the Court of Justice of the European Union rather than determining the appeal.

The appellant, a Sri Lankan national and former member of the LTTE, had previously been detained and tortured by the Sri Lankan security forces. He suffered severe post-traumatic stress disorder and depression and presented a serious risk of suicide if returned. The Upper Tribunal found no continuing interest in him by the Sri Lankan authorities. It therefore rejected his claims under the Refugee Convention and the Qualification Directive, but allowed his appeal under article 3 of the European Convention on Human Rights.

The Court of Appeal upheld that decision in [2014] EWCA Civ 829. The issue before the Supreme Court was whether article 2(e), read with article 15(b), of the Directive covers a real risk of serious harm to health on return which results from previous torture or inhuman or degrading treatment for which the country of origin was responsible.

1. Question referred to the Court of Justice of the European Union. Lord Toulson, with whom Lord Neuberger, Lady Hale, Lord Kerr and Lord Hughes agreed, concluded that the interpretative issue was debatable and was not precisely answered by the European authorities cited to the court. The Supreme Court therefore did not determine the appellant’s entitlement to subsidiary protection.

2. Subsidiary protection under article 2(e) of the Qualification Directive depends on substantial grounds for believing that return would expose the applicant to a real risk of serious harm as defined by article 15. Article 15(b) identifies torture or inhuman or degrading treatment or punishment in the country of origin as serious harm. The dispute concerned whether those provisions require a future risk of ill-treatment by the state, or by a non-state actor against which the state cannot or will not provide protection.

3. The appellant argued that his severe mental illness was not naturally occurring because it had been caused by torture attributable to the Sri Lankan authorities. He contended that the risk of severe mental harm on return, combined with inadequate treatment facilities, fell within the Directive even though the torture was unlikely to recur. The Secretary of State contended that the Directive protects against future ill-treatment and does not cover future consequences of past ill-treatment where there is no risk of repetition.

4. The court referred the following question: whether article 2(e), read with article 15(b), covers a real risk of serious harm to an applicant’s physical or psychological health on return which results from previous torture or inhuman or degrading treatment for which the country of origin was responsible.

1. United Kingdom Supreme Court: In [2016] UKSC 32, unanimously referred the unresolved interpretation of articles 2(e) and 15(b) of the Qualification Directive to the Court of Justice of the European Union.
2. Court of Appeal: In [2014] EWCA Civ 829, upheld the Upper Tribunal’s decision. It considered that the Directive was not intended to cover article 3 cases in which the relevant risk arose from health or suicide rather than persecution.
3. Upper Tribunal: Rejected the appellant’s claims under the Refugee Convention and the Qualification Directive because he was no longer of interest to the Sri Lankan authorities. It allowed his appeal under article 3 of the European Convention on Human Rights because of his severe mental illness, suicide risk and the inadequacy of available mental-health care.