Case Comment: MP (Sri Lanka) v SSHD  UKSC 32
20 Tuesday Dec 2016
This case concerns subsidiary protection (known domestically as “humanitarian protection”) under EU Council Directive 2004/83/EC (the Qualification Directive).
The issue is whether the appellant, who was tortured by the Sri Lankan authorities and whose removal is prohibited by ECHR, art 3 owing to the risk of suicide and mental suffering he would face if removed to Sri Lanka, is entitled to humanitarian protection under Article 15(b) of the Qualification Directive.
The appellant had been detained and tortured by the Sri Lankan authorities on suspicion of involvement with the Liberation Tigers of Tamil Eelam. He suffered from post-traumatic stress disorder, severe depression and suicidality. His claim for refugee and humanitarian protection was refused on the basis that he was not considered to be of continuing interest to the Sri Lankan authorities. However, his appeal was allowed under ECHR, art 3, on account of his mental health, risk of suicide, and the lack of adequate healthcare in Sri Lanka.
The appellant appealed against the refusal of humanitarian protection to the Court of Appeal, who considered 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”.
Before the Supreme Court, the appellant argued that he fell within Article 15(b) of the Qualification Directive and was entitled to humanitarian protection, because his mental illness was the result of torture by the Sri Lankan authorities, rather than being a naturally-occurring illness. The appellant relied on the case of M’Bodj v Kingdom of Belgium (C-542/13)  1 WLR 3059, amongst others, to argue that whilst ‘pure’ health cases – which merely concern shortcomings in healthcare in the country of origin, but no ‘conduct’ on the part of the State giving rise to serious harm – are excluded from the scope of Article 15(b), not all health cases are. In the appellant’s case, his suffering would not simply be the result of general medical inadequacies to which the Sri Lankan population as a whole were exposed. The appellant was tortured by the Sri Lankan authorities; his torture is a significant cause of his mental illness, and contributes to the serious harm he would suffer if returned to Sri Lanka.
The Secretary of State argued that the Qualification Directive is aimed at protecting against future ill-treatment by the State, or by a third party against which the State cannot or will not provide protection, rather than protecting against the future consequences of previous ill-treatment, and thus did not cover the appellant’s circumstances.
The Supreme Court unanimously found that the issue was not acte clair, and referred the following question to the Court of Justice:
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?
This case is important for the appellant himself, as well as more widely. Although ECHR, art 3 protects against the appellant’s removal to Sri Lanka, he is only granted discretionary leave to remain for renewable periods of 30 months. A grant of humanitarian protection, however, entitles the appellant to family reunion, a residence permit, settlement after five years’ residence, and a travel document.
If the Court of Justice answers the referred question affirmatively, it will represent a significant development in the law relating to Article 15(b) health cases. It will extend humanitarian protection beyond cases which involve future conduct by the State that contributes to a person suffering serious harm, such as the intentional deprivation of healthcare, to involve recognition of a State’s responsibility for its historic torture and the future consequences of its past conduct.
Readers interested in immigration cases involving mental and physical health must also read the recent ECtHR Grand Chamber judgment in Paposhvili v Belgium (App No. 41738/10), 13 Dec 2016, which transforms the Article 3 case law in relation to the removal of seriously ill persons, and departs from the long-standing and highly restrictive approach in N v UK (App No. 26565/05), (2008) 47 EHRR 39.