EU Court rules tortured Sri Lankan eligible for ‘subsidiary protection’

The Court of Justice of the European Union yesterday, hearing a case involving a member of Sri Lanka’s Liberation tigers of Tamil Eelam (LTTE) terrorist group, decided that 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 healthcare.

The torture victim, identified as ‘MP’ in the case, is a national of Sri Lanka who arrived in the UK in January 2005 and was given leave to remain as a student.

In 2009, MP lodged an application for asylum on the basis that he had been a member of the Liberation Tigers of Tamil Eelam (LTTE), 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.

The UK authorities rejected that application and decided not to grant him subsidiary protection on the grounds that it had not been established that MP would be at risk of further ill-treatment if he returned to his country

MP brought an action against the decision of the UK authorities before the Upper Tribunal and submitted medical evidence that he was suffering after-effects of the torture he had been subjected to in Sri Lanka, in addition to suffering from post-traumatic stress disorder and depression.

The Upper Tribunal upheld the decision not to grant MP subsidiary protection on the grounds that it had not been established that MP would still be at risk if he returned to his home country. Nevertheless, that court held that returning MP to Sri Lanka would be in breach of the European Convention on Human Rights (ECHR) since, in that country, he would not receive appropriate care for his mental illness.

The Supreme Court of the United Kingdom, which is hearing the case on appeal, asked the Court of Justice whether a non-EU national who is suffering from the after-effects of torture he was subjected to in his country of origin but who would no longer be at risk of such ill treatment if he returned to that country, is eligible for subsidiary protection on the ground that the health services of that country could not provide appropriate care for his mental illness. In the judgment, the Court of Justice found, first, 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 if he returned to that country is not in itself sufficient justification for that person to be eligible for subsidiary protection.

The Court concluded that although the cause of the current state of health of a non-EU national - namely acts of torture inflicted by the authorities of his country of origin in the past - is a relevant factor, substantial aggravation of his health cannot, in itself, be regarded as inhuman or degrading treatment inflicted on that non-EU national in his country of origin.

The Court found that a risk of deterioration in the health of a non-EU national is not sufficient to warrant that person being granted subsidiary protection unless that third country national would face a real risk of being intentionally deprived of healthcare. Therefore, it is for the 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. (Colombopage)