Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers


Case Number: C‑353/16

Relevance of Decision

The case is relevant because it clarifies the notion of “serious harm” under Article 15 of the Qualification Directive (Directive 2004/83), especially in the case of persons suffering from serious mental or physical illness who are victims of torture.

Facts of the case

M.P. is a citizen of Sri Lanka, who arrived in the United Kingdom. He lodged an application for asylum on the ground that he had been detained and tortured by Sri Lankan security forces because he was member of the ‘Liberation Tigers of Tamil Eelam’, and that if returned to Sri Lanka, he would be at risk of further ill-treatment for the same reason.

After the competent national authority rejected his application, M.P. appealed submitting medical evidence proving that he was suffering from several psychological after-effects resulting from torture, eg severe post-traumatic stress disorder, serious depression and suicidal tendencies.

He argued that once returned in his country of origin he will not be provided with appropriate mental health care because of a general lack of psychiatrists and mental health institutions in Sri Lanka and that, for these reasons, he should be granted subsidiary protection under Articles 2 and 15 of Directive 2004/83.

The Court of Appeal stated that M.P. is not entitled to subsidiary protection under Articles 2 and 15 of Directive 2004/83 (Qualification Directive) because these provisions were not intended to cover cases within the scope of Article 3 ECHR where the risk was to health rather than a risk of persecution.

The UK Supreme Court referred the case before the CJEU.

Legal Questions

In the case M.P. v SSHD, the CJEU was asked if Articles 2(e), read with Article 15(b), of Qualification Directive cover also the 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.

Court Findings

In this case, the CJEU clarified that the serious mental or physical illness due to acts of torture inflicted by the authorities of his country of origin in the past; and the risk of severe deterioration of the mental health disorders if returned to his country of origin are relevant factors to be taken into account when interpreting Article 15(b) of Directive 2004/83.

In principle, however, the CJEU found that a substantial aggravation of the applicant state of health “cannot, in itself, be regarded as inhuman or degrading treatment inflicted on that third country national in his country of origin, within the meaning of Article 15(b) of that directive”. (§ 49) Nevertheless, the CJEU also stated that in certain cases a substantial aggravation of the state of health could indeed mount to real risk of serious harm under Article 2 and 15 Qualification Directive read in light of Article 4 CFR. In doing so, the CJEU referred to the following factors:

  1. There is a serious deterioration of the physical or psychological health of the person
  2. The applicant is intentionally deprived of appropriate health care in his/her country of origin

When interpreting the terms “intentionally deprived of appropriate care” (§ 57), the CJEU conceded that the following situations may amount to risk of serious harm under Article 2 and 15 Qualification Directive:

  1. There is risk of committing suicide because of the trauma resulting from the torture he was subjected to by the authorities of his country of origin, and it is clear that those authorities, notwithstanding their obligation under Article 14 of the Convention against Torture, are not prepared to provide for his rehabilitation.
  2. If it is apparent that the authorities of that country have adopted a discriminatory policy as regards access to health care, thus making it more difficult for certain ethnic groups or certain groups of individuals, of which MP forms part, to obtain access to appropriate care for the physical and mental after-effects of the torture perpetrated by those authorities.

In light of Article 4(4) Qualification Directive, the CJEU took into particular consideration the fact that the applicant had been subject to torture by the authorities of his country of origin in the past and, as duly substantiated medical evidence, still continued to suffer from post-traumatic after-effects.

The CJEU also clarified that it is a matter for national courts to determine whether each concrete situation fall within the scope of Articles 2 and 15 Qualification Directive

Critical Assessment

Steve Peers, “Torture victims and EU law” 24 April 2018 http://eulawanalysis.blogspot.com/2018/04/torture-victims-and-eu-law.html