JUDGMENT
MP (Sri Lanka) (Appellant) v Secretary of State for
the Home Department (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
22 June 2016
Heard on 11 May 2016
Appellant Respondents
Raza Husain QC Jonathan Hall QC
Alasdair Mackenzie Will Hays
Alison Pickup
(Instructed by Birnberg
Peirce and Partners
)
(Instructed by The
Government Legal
Department
)
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LORD TOULSON: (with whom Lord Neuberger, Lady Hale, Lord Kerr and
Lord Hughes agree)
1. The issue in this appeal is whether the appellant is entitled to “subsidiary
protection status” under articles 2 and 15 of EU Council Directive 2004/83/EC 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 (“the Qualification Directive”).
2. The main objectives of the Qualification Directive, identified in recital (6),
are to ensure that EU member states apply common criteria for the identification of
persons in need of international protection and that a minimum level of benefits is
available to them.
3. Article 2 provides:
“For the purposes of this Directive:
(a) ‘international protection’ means the refugee and
subsidiary protection status as defined in (d) and (f); …
(e) ‘person eligible for subsidiary protection’ means a third
country national or stateless person who does not qualify as a
refugee but in respect of whom substantial grounds have been
shown for believing that the person concerned, if returned to
his or her country of origin, or in the case of a stateless person,
to his or her country of former habitual residence, would face a
real risk of suffering serious harm as defined in article 15 …
and is unable, or, owing to such risk, unwilling to avail himself
or herself the protection of that country;
(f) ‘subsidiary protection status’ means the recognition by
a member state of a third country national or a stateless person
as a person eligible for subsidiary protection …”
4. Article 15 provides:
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“Serious harm consists of
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or
punishment of an applicant in the country or origin; or
(c) serious and individual threat to a civilian’s life or person
by reason of indiscriminate violence in situations of
international or internal armed conflict.”
5. The appellant is a national of Sri Lanka. He arrived in the UK in January
2005, then aged 28, and was given leave to enter as a student. His leave to remain
was extended to 30 September 2008. Shortly before its expiry he applied for a further
extension. This was refused on 11 December 2008. He claimed asylum on 5 January
2009 on the grounds, in summary, that he had been a member of the Liberation
Tigers of Tamil Eelam (“LTTE”), he had been detained and tortured by the Sri
Lankan security forces, and, if returned to Sri Lanka, he was at risk of further illtreatment for the same reason.
6. The appellant’s application was refused by the respondent on 23 February
2009. The respondent did not dispute the core of the appellant’s account, that he had
been a member of the LTTE and had been detained and tortured for that reason, but
she did not accept that he would be of continuing interest to the Sri Lankan
authorities or at risk of further ill-treatment if he were returned.
7. The appellant appealed against the respondent’s decision. It is not necessary
to set out full details of the procedural history, but ultimately his appeal formed part
of a decision by the Upper Tribunal, dated 5 July 2013, giving “Country Guidance”
on the risk to Tamils following the end of the Sri Lankan civil war: GJ and Others
(post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
8. The Upper Tribunal had medical evidence that the appellant bore scars on his
chest and upper and lower limbs which were “highly consistent” with his account of
being beaten with blunt instruments, burned with cigarettes and an iron bar, and his
hand cut with a knife. It also had evidence of a psychiatrist, who had examined the
appellant and had access to his medical records in the UK, that he was suffering
severe post-traumatic stress disorder and severe depression, he showed a high degree
of suicidality and he appeared to have a serious determination to kill himself if he
were returned to Sri Lanka. The appellant did not himself give evidence. The
psychiatrist did not consider him fit to do so.
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9. The Upper Tribunal accepted that the appellant had a genuine fear of return
to Sri Lanka, and that he had difficulty in trusting or interacting with official figures,
even in the UK, because of his past torture, but it rejected his appeal under the
Refugee Convention and the Qualification Directive because it did not accept that
he was of any continuing interest to the authorities in Sri Lanka. However, it allowed
his appeal under article 3 of the European Convention on Human Rights. It
explained its reasoning in the following paragraphs:
“453. Although the appeal fails under the Refugee Convention
and Qualification Directive, we must consider whether the
suicide risk which this appellant presents is such as to engage
article 3 ECHR. Applying the J and Y principles [J v Secretary
of State for the Home Department [2005] EWCA Civ 629 and
Y (Sri Lanka) v Secretary of State for the Home Department
[2009] EWCA Civ 362] and reminding ourselves of the gravity
of the appellant’s past experience of ill-treatment and his
current grave mental health problems, with severe forms of
both post-traumatic stress disorder and depression, we have
considered whether returning the appellant to Sri Lanka will
breach the United Kingdom’s international obligations under
article 3.
454. The evidence is that there are only 25 working
psychiatrists in the whole of Sri Lanka. Although there are
some mental health facilities in Sri Lanka, at para 4 of the April
2012 UKBA Operational Guidance Note on Sri Lanka, it
records an observation by Basic Needs that ‘money that is spent
on mental health only really goes to the large mental health
institutions in capital cities, which are inaccessible and do not
provide appropriate care for mentally ill people’.
…
456. We note that the … appellant is considered by his
experienced Consultant Psychiatrist to have clear plans to
commit suicide if he is returned and that he is mentally very ill,
too ill to give reliable evidence. We approach assessment of his
circumstances on the basis that it would be possible for the
respondent to return to return the … appellant to Sri Lanka
without his coming to harm, but once there, he would be in the
hands of the Sri Lankan mental health services. The resources
in Sri Lanka are sparse and limited to the cities. In the light of
the respondent’s own evidence in her OGN that there are
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facilities only in the cities and that they ‘do not provide
appropriate care for mentally ill people’ and of the severity of
this appellant’s mental illness, we are not satisfied on the
particular facts of this appeal, that returning him to Sri Lanka
today complies with the United Kingdom’s international
obligations under article 3 ECHR.”
10. The Upper Tribunal’s decision was upheld by the Court of Appeal: [2014]
EWCA Civ 829. Maurice Kay LJ, with whom the other members of the court agreed,
said that in his judgment “the Qualification Directive was not intended to catch
article 3 cases where the risk is to health or of suicide rather than of persecution”
(para 48). He referred to the decision of the European Court of Human Rights in N
v United Kingdom (2008) 47 EHRR 39 (a case of an AIDS sufferer who claimed
that her removal to Uganda would contravene article 3) as showing that cases where
the risk to an applicant arose from his health were a special category to which article
3 applied only in very exceptional circumstances, because “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” (para 43).
Counsel for the appellant submitted 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, but Maurice Kay LJ considered that
this argument stretched the concept of subsidiary protection too far.
11. It is argued on the appellant’s behalf that the Upper Tribunal and the Court
of Appeal took too narrow a view of the scope of the Qualification Directive. It is
his case that his mental illness should not be regarded as a “naturally occurring
illness”, because it was caused by torture at the hands of the Sri Lankan authorities.
Instead, it is submitted that, just as the Upper Tribunal accepted that on the facts of
this case the appellant’s return would cause him severe mental harm which, taking
into account his history of ill treatment by the state and the inadequacy of facilities
to treat its consequences, would amount to a violation of ECHR article 3, so for
similar reasons it should have accepted that he was entitled to subsidiary protection
status under the Qualification Directive. According to this argument, it makes no
difference to his entitlement to such protection that there is no longer a risk of
repetition of the ill treatment which is the cause of his current state of health.
12. The respondent submits that the Upper Tribunal and Court of Appeal were
right. It is her case that it is a necessary component of subsidiary protection that
there exists a risk of serious harm, as defined in article 15 of the Qualification
Directive, in the country of origin for which the home state will be responsible, in
that it will either inflict that harm or it will be inflicted by a non-state actor against
which the state is unable or unwilling to provide protection. Put shortly, according
to her argument, the Directive is aimed at providing international protection against
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the risk of serious harm from future ill treatment, either by the state or by a third
party against which the state cannot or will not provide protection, and not at
potential future consequences of past ill treatment of which there is no risk of
repetition.
13. This court was referred to a number of authorities of the Court of Justice of
the European Union, including M’Bodj v Kingdom of Belgium (Case C-542/13)
[2015] 1 WLR 3059, and of the European Court of Human Rights, but none is
precisely in point. The question of principle which the appeal raises is debatable and
should therefore be referred to the Court of Justice. The question to be referred is:
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?
