Supreme Court refers question to CJEU on the scope of the Qualification Directive where there is a risk of serious harm to physical or psychological health as a result of previous torture by the country of origin


Re: MP (Sri Lanka) v Secretary of State for the Home Department; & Anor case [2016] UKSC 32

The appellant Sri Lankan national claimed asylum on the grounds that he had been a member of the Liberation Tigers of Tamil Eelan (LTTE), and had been detained and tortured by Sri Lankan security forces. He contended that on return he was likely to suffer similar ill-treatment. Evidence from a psychiatrist showed that he was suffering severe post-traumatic stress disorder and severe depression and showed a high degree of suicidality. The Court of Appeal, however rejected his appeal on the basis that “the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country”. The appellant appealed to the Supreme Court on the grounds that this is too narrow a view of the scope of the Qualification Directive and that his mental illness should not be regarded as naturally occurring because it was caused at the hands of the Sri Lankan authorities.

Held: no CJEU or ECtHR authority covered this point, therefore the following question would be referred to the CJEU: “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?”

Raza Husain QC was involved in this case.