CJEU: Torture victims eligible for subsidiary protection if facing intentional deprivation of health care

The UK Supreme Court asked the CJEU 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 today’s judgment, the Court found that under EU law, the fact 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, is not in itself sufficient justification for subsidiary protection.

The subsidiary protection regime aims to protect the individual against a real risk of serious harm if returned to his country of origin, which implies that substantial grounds must be shown for believing that the person concerned, if returned to that country, would face such a risk.

Nevertheless, the Court noted that the case at issue concerns a non-EU national who has not only been tortured by the authorities of his country of origin in the past, but who, in addition continues to suffer severe psychological after-effects resulting from the torture.

According to duly substantiated medical evidence, those after-effects would be substantially aggravated and lead to a serious risk of him committing suicide if he were returned to his country of origin.

The Court pointed out that the subsidiary protection regime must be interpreted and applied in observance of the rights guaranteed by the Charter of Fundamental Rights of the European Union.

In line with the recent case law of the European Court of Human Rights, the CJEU considered that the Charter must be interpreted as meaning that the removal of a non-EU national with a particularly serious mental or physical illness constitutes inhuman and degrading treatment where such removal would entail a real and demonstrable risk of significant and permanent deterioration in their state of health.

The Court therefore found that the Charter precludes a member state from expelling a non-EU national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly if, as in the present case, such deterioration would endanger his life.

The UK courts have already held that the ECHR precludes the person in question being returned to Sri Lanka; the question referred for a preliminary ruling deals specifically with subsidiary protection status.

The CJEU 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 health care.

Therefore, it is for the UK 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 the person in question 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.