This case concerns the appeal related to entitlement to “subsidiary protection status” under Articles 2 and 15 of the EU Council Directive 2004/83/EC on the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who need international protection. The crucial objective of the Directive is to ensure that EU member states apply common criteria when identifying an individual in need of international protection and that minimum level of benefits is available to them.
The appellant (national of Sri Lanka) who entered the UK in January 2005 (aged 28) was given a leave to enter as a student. The leave was extended to September 2008 and shortly before its expiry the applicant applied for a further extension which was refused. The applicant claimed asylum in January 2009 on the grounds that he had been a member of the Liberation Tigers of Tamil Eelam. He had been detained and tortured by the Sri Lankan security forces and if returned would be at risk of further ill-treatment for the same reason. The application was refused. The responded did not dispute the appellant’s torture by LTTE, however it was not accepted that the applicant would be of continuing interest to the Sri Lankan authorities or at risk of further ill-treatment if he returned.
The appellant appealed against the decision and his appeal formed part of the decision by the Upper Tribunal. The Upper Tribunal had:
The Upper Tribunal accepted that the appellant had a genuine fear of return to Sri Lanka but it rejected his appeal under the Refugee Convention and the Qualification Directive because it did not accept that he was of any continuing interest to the authorities in Sri Lanka. The appeal was allowed under Article 3 of the European Convention of Human Rights for the underlying fact that the Upper Tribunal is not satisfied that returning the appellant to Sri Lanka would comply with the UK’s international rights under Article 3 ECHR.
The Court of Appeal upheld the decision of the Upper Tribunal. Judge Maurice Kay LJ stated in his judgment: “the Qualification Directive was not intended to catch Article 3 cases where the risk is to health or of suicide rather than of persecution”. The judgment of the judge referred to the decision of the ECHR in N v United Kingdom. The Counsel for the appellant stressed the crucial difference to the applicability of the Qualification Directive that the Sri Lankan state was responsible for the appellant’s mental illness by its past ill treatment, however the Judge considered that this aspect stretched the concept of subsidiary protection too far.
It has been argued that the UT and the Court of Appeal should not have regarded appellant’s mental illness as a ‘naturally occurring illness’ as it was caused by torture at the hands of the Sri Lankan authorities. Instead the UT accepted that the appellant’s return would cause him severe mental harm which amounts to violation of ECHR Article 3 and so for similar reasons it should have accepted that the appellant was entitled to subsidiary protection under the Qualification Directive.
The Secretary of State for the Home Department submitted that the UT and the Court of Appeal were right. There exists a risk of serious harm as defined in Article 15 of the Qualification Directive. Directive aims to provide international protection against the risk of serious harm from future ill treatment either by the state or by a third party. The following question of principle was referred to the Court of Justice: “Does Article 2 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?”