Qualification Directive and Previous Torture: What is the Scope of Coverage for Mental Illness?

MP (Sri Lanka) v Secretary of State for the Home Department [2016] UKSC 32 (22 June 2016)

Nowadays, the island nation of Sri Lanka is a popular tourist destination. People from all over South Asia, and elsewhere, flock to marvel at the country’s historical attractions and its overwhelming natural beauty. But, rather than being driven by genuine peace making, stability in Sri Lanka was achieved through the barrel of the gun and mass murder. As if the Sinhalese government’s war crimes were not enough, the country is also governed under a plenary system whereby “Parliament has turned out to be ineffective against an over-mighty executive President, playing to the President’s tune.” Rather than speaking “softly” and carrying “a big stick”, senior academics and lawyers in the country are united in their view that “Parliament has been talking big while carrying a fiddle stick.” In this Sri Lankan case, Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Hughes and Lord Toulson decided to make a reference to the CJEU and asked: Does article 2(e), read with article 15(b), of the Qualification Directive cover 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?

MP, the appellant came to the UK from Sri Lanka in early 2005 as a student. His leave to remain was extended to September 2008 but a further extension was refused in December 2008. Thereafter, he claimed asylum on the basis that he had been a member of the (now tamed) Liberation Tigers of Tamil Eelam (LTTE) because of which the Sri Lankan security forces detained and tortured him. He said his LTTE background meant he was at risk of further ill-treatment if returned to the Sri Lanka. His claim was refused in February 2009. His story about LTTE membership and detention and torture claims were not disputed but it was not accepted that he would be of continuing interest to the Sri Lankan authorities or at risk of further ill-treatment if he were returned.

Lord Toulson said the issue in the appeal was whether MP is entitled to “subsidiary protection status” under articles 2 and 15 of EU Council Directive 2004/83/EC, or the Qualification Directive, on the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

Along with GJ and NT, MP was one of the appellants in the country guidance case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC). The medical evidence pointed to the scars on his chest, arms and limbs to be “highly consistent” with his claims of being beaten with blunt instruments and other forms of torture such as cigarette burns and hot iron bar burns and cuts to his hand with a knife. Psychiatric evidence and medical records pointed to severe post-traumatic stress disorder and severe depression. MP showed intense signs of suicidality and he exhibited serious determination to take his own life if forcibly returned to Sri Lanka. He did not give any evidence because the psychiatrist considered him unfit to do so.

It was not disputed that he had a genuine fear of return to Sri Lanka and his mistrust of officials, British or otherwise, was understandable in light of the past torture he suffered. Yet his appeal under the Refugee Convention and the Qualification Directive was dismissed because the idea that he was of any continuing interest to the Sri Lankan authorities was rejected. However, applying the principles in case law – J v SSHD [2005] EWCA Civ 629 and Y (Sri Lanka) v SSHD [2009] EWCA Civ 362 – his appeal under article 3 of the ECHR was allowed in light of his suicide risk. With only 25 working psychiatrists in the whole country and wide spread misuse of public money in inaccessible mental health facilities, the evidence suggested a shortage medical facilities and expertise. Sparse resources and, as seen in the OGN on Sri Lanka, inappropriate care for mentally ill people meant that MP’s clear suicidal intentions showed that returning him to Sri Lanka now would not comply with article 3.

The Court of Appeal, [2014] EWCA Civ 829, upheld the Upper Tribunal’s decision and held para 48 that “the Qualification Directive was not intended to catch article 3 cases where the risk is to health or of suicide rather than of persecution”. In reaching this conclusion, Maurice Kay LJ, with whom Elias and Underhill LJJ concurred, held in light of N v United Kingdom (2008) 47 EHRR 39 that article 3 applied only in very exceptional circumstances in “special category” cases where a health related risk came into play. N itself involved (see here) an AIDS sufferer who said that her removal to Uganda would breach article 3 and died soon after reaching there and he said:

43. … in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.

Maurice Kay LJ considered it would be stretching the concept of subsidiary protection too far to accept the argument that it made a critical difference to the applicability of the Qualification Directive that the Sri Lankan state was responsible for his mental illness by its past ill-treatment.

MP argued that both the tribunal and the court took a restricted view of the directive’s scope. Notably, his mental condition was not a “naturally occurring illness” because its onset was brought about by the torture inflicted by Sri Lankan authorities. For him it did not make sense that the tribunal did not dispute that his return would breach article 3 because of his history of ill-treatment at the hands of the state but nevertheless decided that he was not entitled to subsidiary protection status under the directive.

From his perspective it makes no difference to his entitlement to such protection that there is no longer a risk of repetition of the ill-treatment causative of his current state of health. The position was attacked by the home office which said the directive was not aimed at potential future consequences of past ill-treatment of which there is no risk of repetition. Rather it targets providing international protection against the risk of serious harm from future ill-treatment.

None of the CJEU and ECtHR authorities were on point. M’Bodj v Kingdom of Belgium (Case C-542/13) [2015] 1 WLR 3059 did not answer the question which needed to be referred:

Does article 2(e), read with article 15(b), of the Qualification Directive cover 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?

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 3, Asylum, CJEU, ECHR, European Union, Sri Lanka, Terrorism, UKSC and tagged , , , , . Bookmark the permalink.

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