In this reference, the Supreme Court asked the CJEU to rule on the question whether a third country national, who had been tortured in the past but will not be tortured upon return, is entitled to “subsidiary protection” because his psychological conditions would not be adequately treated by the healthcare system available in his state of origin. In response the CJEU has held that a person who has in the past been tortured in his country of origin is eligible for subsidiary protection if he does face a real risk of being intentionally deprived, in his home country, of appropriate physical and psychological healthcare. Returning such a person to his home state may also breach the ECHR. Essentially, the question concerned the scope of coverage for mental illness and past torture within the meaning of the Qualification Directive (2004/83/EC). Apart from interpreting the Directive’s provisions, the CJEU had the opportunity to alternatively rule on article 3 of the ECHR and article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The court’s overall rationale is a significant departure from AG Yves Bot’s proposal that, notwithstanding article 3 of the ECHR and article 14(1) of CAT, the CJEU should rule that article 2(e) and article 15(b) of the Directive impose no obligation on EU states to widen the scope of subsidiary protection to include cases such MP’s case.
The landmark decision in Paposhvili v Belgium  ECHR 1113, which overturned the longstanding restrictive authority of N v United Kingdom (2008) 47 EHRR 39, did not feature in AG Bot’s reasoning at all but the new approach was given due consideration by the CJEU. MP 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. He claimed asylum on the basis that he had been a member of the LTTE because of which the Sri Lankan security forces detained and tortured him. He said his links to the Liberation Tigers of Tamil Eelam (LTTE) put him at risk of further ill-treatment in Sri Lanka. His claim was refused in February 2009. His narrative 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 upon return.
The concept of “subsidiary protection” accommodates a third-country national or a stateless person who does not qualify as a refugee but vis-à-vis whom substantial grounds have been shown for believing that, if returned to the country of origin – or in the case of a stateless person, to the country of former habitual residence – would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.
The outcome in N v United Kingdom – where the ECtHR endorsed the decision of the House of Lords in N v SSHD  UKHL 31 – meant that the protection of article 3 against removal in medical cases used to be confined to “deathbed” cases where death is already imminent when the applicant is in the removing country. The ECtHR subsequently relaxed the stringency of the test and held in Paposhvili that the protection of article 3 extended to cases where:
183. … substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.
Along with two others, MP was one of the appellants in the country guidance case of GJ and Others (Post-Civil War: Returnees) Sri Lanka CG  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. MP also suffered from post-traumatic stress disorder (PTSD) and depression. Applying the principles in case law – J v SSHD  EWCA Civ 629 and Y (Sri Lanka) v SSHD  EWCA Civ 362 – his appeal under article 3 of the ECHR was allowed in light of his suicide risk. His appeal under the Refugee Convention 1951 and the Directive was dismissed. MP was unlikely to still be of interest to the Sri Lankan authorities.
Thereafter, the Court of Appeal upheld the Upper Tribunal’s decision and found 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 that article 3 applied only in very exceptional circumstances in “special category” cases where a health related risk came into play. N herself was an AIDS sufferer who claimed that her removal to Uganda would breach article 3 and died soon after reaching there.
Maurice Kay LJ judged that 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 Directive that the Sri Lankan state was responsible for his mental illness because of its past torture. In making the reference, the Supreme Court noted that none of authorities were on point. The ECtHR had not, at the material time, addressed the question and the CJEU did not answer the question in M’Bodj (C-542/13, EU:C:2014:2452).
The Court of Justice (Grand Chamber)
For a third country national to be eligible for subsidiary protection under article 2(e) of the Directive there must be substantial grounds for believing that a real risk exists that upon return home he will suffer one of the three types of serious harm defined in article 15. The serious harm in contemplation includes torture or inhuman or degrading treatment or punishment of an applicant in the country of origin. The court recalled that under EU law, the fact that a person has in the past been tortured by the authorities of his country of origin but would no longer be at risk of such treatment upon return is not on its own sufficient justification for that person to be eligible for subsidiary protection.
The aim of subsidiary protection regime is to shield the individual from a real risk of serious harm upon return to the country of origin. This means that substantial grounds must be demonstrated for believing that the said person concerned would face such a risk upon return. MP could not be classified in this cohort of persons. On the other hand, he was tortured by the Sri Lankan authorities and suffers from severe psychological problems and repercussions resulting from the torture inflicted upon him in the past.
Despite the fact that there is no present risk of him being tortured again if returned to Sri Lanka, on the basis of duly substantiated medical evidence those after-effects would become substantially aggravated and trigger a serious risk of him committing suicide if he were returned to his country of origin. The CJEU judged that the system of subsidiary protection must be interpreted and applied in accordance with the rights guaranteed by the Charter of Fundamental Rights of the European Union (CFR). Under the CFR any guaranteed rights corresponding to those guaranteed by the ECHR have the same scope and meaning.
As discussed in the authorities of Aranyosi and Căldăraru (C‑404/15 and C‑659/15 PPU, EU:C:2016:198) and C.K. and Others (C‑578/16 PPU, EU:C:2017:127), a need arises to interpret article 15(b) consistently with the rights guaranteed by article 4 of the CFR – which mirrors the absolute prohibition on torture in article 3 of the ECHR – and is closely connected to respect for human dignity within the meaning of article 1 of the CFR. Under article 52(3) of the CFR, the rights guaranteed by article 4 corresponding to article 3 have the same meaning and scope as those expressed in the latter provision.
Where the threshold of engagement of article 3 is met, following Paposhvili suffering caused by a naturally occurring illness, whether physical or mental, is within the reach of article 3 if it actually is or risks becoming exacerbated by treatment – caused by detention, removal or other measures – for which the authorities can be held responsible. Under Strasbourg jurisprudence such as S.H.H v the United Kingdom  ECHR 102, the same threshold of severity must be satisfied for article 3 to bar the expulsion someone whose illness is not naturally occurring and the lack of care that would be available to that person upon expulsion is not associated with intentional acts or omissions on the part of the receiving state.
In light of the threshold of severity for finding a violation of article 3, it is the consequence of Paposhvili that removing a seriously ill person at risk of imminent death is precluded. Moreover, removal is also impermissible where because of absence of appropriate treatment in the receiving country (or the lack of access to such treatment) substantial grounds point to believing that such a person would face a real risk of suffering a serious, rapid and irreversible decline in his health causing intense suffering or resulting in a significant reduction in life expectancy.
Equally, article 4 of the CFR exacts that removing a seriously mentally or physically ill third country national amounts to inhuman and degrading treatment if the removal results in a real and demonstrable risk of significant and permanent deterioration in the said person’s state of health. The point is reinforced by the terms of article 19(2) of the CFR whereby no person may be removed to a state where there is a serious risk that he would be subjected to inhuman or degrading treatment. The CJEU therefore held that:
43. It follows that article 4 and article 19(2) of the CFR, as interpreted in the light of article 3 of the ECHR, preclude a member state from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.
The court also observed that in Abdida (C‑562/13, EU:C:2014:2453) it held that, in sufficiently exceptional cases, removing a seriously mentally or physically ill third country national to a state where no appropriate treatment is available may comprise an infringement of the non-refoulement principle and thus constitute an infringement of article 5 of the Returns Directive (Directive 2008/115) read in light of article 19 (protection in the event of removal, expulsion or extradition) of the CFR.
Since the national courts acknowledged that article 3 of the ECHR prevented MP’s removal, his case was unconcerned with the protection afforded by that provision. Rather, his case involved subsidiary protection and torture and whether he should be granted such status because the severe psychological after-effects suffered by him would be substantially aggravated upon return to Sri Lanka and lead to a serious risk of him committing suicide.
Past torture inflicted by Sri Lankan authorities caused his PTSD and his suffering would be significantly and permanently exacerbated, to the point of endangering his life upon return. By contrast M’Bodj had been a third country national who had been the victim of an assault in the host member state. In the instant case, both the past torture inflicted in the country of origin and the substantial aggravation of existing consequential psychological trauma upon return are factors relevant to the interpretation of article 15(b). The court nevertheless found that on its own such substantial aggravation is incapable of being regarded as inhuman or degrading treatment inflicted on the concerned person in his country of origin within the meaning of article 15(b).
Despite fact that the ECHR precludes the removal of a non-EU national in exceptional cases evidencing a risk of harm because of the unavailability of appropriate treatment in the country of origin, this point does not mean that the said person should be granted leave to reside in a member state by way of subsidiary protection. Following M’Bodj the serious harm contemplated by article 15(b) cannot arise simply because of general shortcomings in the country of origin’s healthcare system. Unless there is intentional deprivation of healthcare, the risk of the non-EU national’s health deteriorating is insufficient to justify the grant of subsidiary protection.
The CJEU observed that in making the overall assessment in a case of the present nature, recital 25 of the Directive – inextricably linking the grant of subsidiary protection to international obligations under human rights instruments and practices existing in member states – requires that state parties to CAT must apply article 14 of that convention to ensure that a victim of torture has the right to obtain redress under their legal systems, including the resources required to achieve the fullest possible degree of rehabilitation.
Referring by analogy to Diakité (C‑285/12, EU:C:2014:39), the court noted that the regime under the Qualification Directive pursues different objectives and establishes protection mechanisms which are clearly distinct from those under CAT. In comparative perspective, CAT’s main aim is to enhance by means of prevention the effectiveness of the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world. The Directive’s main objective is to ensure that (a) member states apply common criteria for the identification of persons genuinely in need of international protection, and (b) a minimum level of benefits is available for those persons in all member states.
The subsidiary protection status conferred by the Directive, which is similar to the type afforded to refugees by the Refugee Convention 1951, seeks to protect persons who cannot be classified as refugees but are still at risk, among other things, of being subjected to torture or inhuman or degrading treatment if returned to their home country. Overall, the operative part of the court’s judgment states that:
58. It follows from the foregoing that articles 2(e) and 15(b) of Directive 2004/83, read in the light of article 4 of the Charter, must be interpreted as meaning that a third country national who in the past has been tortured by the authorities of his country of origin and no longer faces a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of him committing suicide on account of trauma resulting from the torture he was subjected to, is eligible for subsidiary protection if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental after-effects of that torture, that being a matter for the national court to determine.
Ultimately, the Supreme Court must assess taking into account all the relevant updated information – especially reports by international organisations and non-governmental human rights organisations – whether upon return to Sri Lanka it is likely that MP will 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 Sri Lankan authorities. If his rehabilitation needs are not met in line with the duties under CAT, then the suicide risk presented by MP as a result of past torture will be made out. A risk will also arise if there is ethnically motivated discrimination in relation to accessing requisite healthcare for the physical and mental repercussions of the torture perpetrated by the Sri Lankan authorities.
The outcome of MP’s case has wide-ranging implications in other cases. Significantly, the fact that MP was protected from removal under article 3 only entitled him to renewable discretionary leave to remain allotted in periods of 30 months. By contrast persons granted humanitarian protection are entitled to family reunion and a residence permit. They are also able to acquire settlement after five years’ residence and a travel document.
Sri Lanka’s Prevention of Terrorism Act is seen as extremely draconian because it allows arrests for unspecified “unlawful activities” without a warrant and permits detention for up to 18 months without the suspect appearing before a court. Since the LTTE’s military tactics involved using child soldiers to conduct suicide bombings, the government does not want to be seen as soft on terrorism. Despite it being common ground in the instant case that MP would not be tortured upon return, there are widespread reports of Tamils being tortured upon return to Sri Lanka.
Above all, Paposhvili has come to symbolise the reluctance of the UK courts to depart from their existing rulings such as N v SSHD and the legal benchmark it established. In EA & Ors (Article 3 Medical Cases: Paposhvili Not Applicable: Afghanistan)  UKUT 445, the Upper Tribunal held that the Paposhvili test “is not a test that it is open to the Tribunal to apply by reason of its being contrary to judicial precedent.”
In AM (Zimbabwe) & Anor  EWCA Civ 64, the parties agreed that the restrictive “deathbed” approach in N v United Kingdom is binding authority on the Court of Appeal regarding the test to be applied in domestic law despite the more lenient approach in Paposhvili. Nevertheless, Sales, Patten and Hickinbottom LJJ also found it “highly desirable that the Supreme Court should consider the impact of Paposhvili for the purposes of domestic law at an early stage.” The Court of Appeal remarked that the two appeals before it were not “ideal as vehicles for that exercise” but perhaps MP’s case will facilitate the expedition of proper light to be thrown on Paposhvili at apex court level.
Professor Peers notes in his commentary that this was the first time that the CJEU had the opportunity to interpret the CAT in its case law. He reminds us that the Returns Directive does not apply to the UK and Ireland and criticises the court for not providing greater clarity on how EU law, particularly the CFR, applies in these member states. He explains that the present ruling contains dually emollient qualities because it uniquely assists torture victims and also potentially applies to any “medical cases”. The overall conclusion is that the CJEU “has gone some way to ensuring greater protection, where necessary, for the most vulnerable migrants: torture victims and the terminally ill.”