The MP judgment: the CJEU on subsidiary protection for former victims of torture
Subsidiary protection status may only be granted if authorities in the country of origin intentionally deprive an applicant of appropriate medical treatment, e.g. not providing rehabilitation or preventing access to treatment in a discriminatory manner.
On 24 April 2018, the Grand Chamber of the Court of Justice of the EU (CJEU) delivered its judgment in the case C-353/16 MP v Secretary of State for the Home Department which considered the interpretation of the concept subsidiary protection as defined in the Qualification Directive. Usually, it is assessed whether there is a real risk that the applicant for international protection will be subjected to torture or inhuman or degrading treatment upon return. If this risk is real, subsidiary protection status will be granted. This case is different as the question is whether previous torture by the authorities of the country of origin caused severe psychological after-effects which, upon return, could be substantially aggravated and lead to the applicant committing suicide, requires the EU Member States to grant subsidiary protection status according to Articles 2(e) and 15(b) Qualification Directive.
The factual circumstances date back to January 2005, the year in which the applicant (MP) entered the United Kingdom (UK) and was given leave to remain as a student until 2008. On 5 January 2009, he applied for asylum on the grounds that he had been tortured by the Sri Lankan authorities because he was a member of the ‘Liberation Tigers of Tamil Elam.’ He stated that if he were returned to Sri Lanka, he would be subjected to that same treatment. His request was denied by the UK immigration authorities as they were not convinced that MP was still of interest to the Sri Lankan authorities and therefore at risk of further ill-treatment upon return. The UK Upper Tribunal shared the same view as the UK immigration authorities. Nevertheless, this Court was of the opinion that returning MP to Sri Lanka would constitute a breach of Article 3 of the European Convention of Human Rights (ECHR) as he would not have access to appropriate medical treatment upon return. The UK Court of Appeal upheld the judgment of the UK Upper Tribunal. In appeal, the UK Supreme Court decided to stay the proceedings and referred this question to the CJEU for a preliminary ruling.
First, the CJEU emphasises that Article 15(b) Qualification Directive must be interpreted in accordance with Article 4 Charter of Fundamental Rights of the European Union (Charter) which should be interpreted in the same way as Article 3 ECHR. In this regard, Article 52(3) Charter prescribes that the meaning and scope of the rights flowing from Article 4 Charter are similar to those as contained in Article 3 ECHR. Therefore, besides relying on its own judgments in Case C-542/13 M’Bodj, the CJEU took into account the relevant Paposhvili judgment of the European Court of Human Rights. Principally relying on these judgments, the CJEU rules that the EU Member States are precluded from expelling the applicant if ‘such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders,’ particularly where such deterioration would endanger his life (para 43). However, the CJEU was also aware of the fact that this was not a satisfying answer to the preliminary question, as the current case did not consider the question whether protection against removal must be offered but whether subsidiary protection must be granted. Especially regarding the latter, the CJEU ruled in M’Bodj (para 40) that the fact that removal is precluded due to the absence of appropriate treatment does not mean that that applicant should be granted subsidiary protection and therefore lawful residence on the Member State’s territory. Despite the CJEU finding that the circumstances were more severe than in M’Bodj, it ruled that solely the substantial aggravation of the applicant’s state of health upon return to the country of origin could not be considered as inhuman and degrading treatment in the wording of Article 15(b) Qualification Directive (para 49). Nevertheless, according to the CJEU, the situation becomes different when the country of origin is intentionally depriving the applicant of appropriate medical treatment (M’Bodj paras 35-36). In this judgment, the CJEU extends its ruling in M’Bodj by providing, in my view, a non-exhaustive overview of examples of situations where the applicant is intentionally deprived of necessary medical treatment. This concerns the situation where the country of origin does not provide for rehabilitation or has adopted a discriminatory policy which prevents access to appropriate medical treatment for individuals belonging to certain ethnic groups, of which the applicant must be a member. Significantly, the CJEU rules that it is up to the national court to consider whether such a situation exists with the help in particular of reports drawn up by international organisations and non-governmental organisations.
Significantly, this judgment enlarges the scope of interpretation and application of the concept of subsidiary protection by including former victims of torture or inhuman and degrading treatment who, upon return, are intentionally deprived of necessary medical treatment by the authorities in their country of origin. In my opinion, this is in line with the content and purpose of the subsidiary protection status as contained in the Qualification Directive which seeks to offer its beneficiaries protection similar to that afforded to refugees by the Refugee Convention. The actions of the state, in casu the intentional deprivation of appropriate medical treatment, can be regarded as a similar act as those included in the definition of acts of persecution of Article 9 Qualification Directive. Furthermore, it is logical that the CJEU uses the discriminatory policy as an example, as it is in line with the concept of a particular social group as defined in Article 10 Qualification Directive.
Essentially, this judgment is a sequel to the Paposhvili judgment in which the CJEU builds further and rules that for the applicant to be eligible for subsidiary protection, he must be intentionally deprived of appropriate medical treatment in a discriminatory manner or not provided with rehabilitation. However, as regards the first situation, the question remains whether subsidiary protection must also be granted in cases where the medical situation is so severe that the applicant is ‘at risk of imminent death’ or ‘suffering a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy’ (Paposhvili paras. 178 and 183) but this intentional deprivation of appropriate medical treatment lacks this discriminatory nature.