Professor Steve Peers, University of Essex
What happens if an asylum seeker faces severe mental health problems that cannot be treated in the country of origin? Today’s judgment of the ECJ in the MP case, following a reference from the UK Supreme Court, goes some way towards answering this question.
The issue what we might call “medical cases” for asylum first of all arose before the European Court of Human Rights. In a series of judgments, that Court clarified whether the ban on torture or inhuman or degrading treatment, set out in Article 3 of the European Convention on Human Rights (ECHR), prevented people from being sent back to a country where there was no effective medical care. Essentially, it ruled that such an argument could only be successful in highly exceptional cases, in particular where the person concerned was critically ill and close to death.
However, while these judgments addressed the question of non-removal for persons in such serious conditions, they did not rule on the issue of the status of asylum, or other types of migration status, for the persons concerned. This issue was the subject of two linked ECJ judgments (M’Bodj and Abdida) in 2014, which I discussed here. In short, the ECJ said that the persons suffering from severe health problems could not invoke a right to “subsidiary protection” on the basis of the EU’s qualification Directive, even though one of the grounds for such protection was facing a “real risk” of torture or inhuman or degrading treatment in the country of origin. That was because subsidiary protection was only intended for cases where the harm was directly caused by humans.
So do “medical cases” only have the right to non-removal on the basis of Article 3 ECHR? Not quite; because the ECJ also said that the EU’s Returns Directive, which governs the position of irregular migrants, could be relevant. In an ambitious interpretation of that Directive, the Court ruled that it could be invoked to prevent removals in “medical cases”, including the suspensive effect of an appeal against removal; moreover the Directive conferred a right to medical care and social assistance for the persons concerned in such cases.
Subsequently, at the end of 2016, the European Court of Human Rights revisited its case law on “medical cases”, lowering the very high threshold that had previously applied before individuals could invoke Article 3 ECHR. In Paposhvili v Belgium (discussed here), it extended that case law also to cover cases of:
removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.
It should be noted that while the “first phase” EU qualification Directive (which includes the same definition of “subsidiary protection” as the 2011 version) applies to the UK and Ireland, the Returns Directive does not.
The ECJ began by stating that in order to invoke a claim to subsidiary protection on grounds of torture, it was necessary to show that such treatment would occur in the country of origin in future. While MP had suffered torture in Sri Lanka in the past, that was “not in itself sufficient justification for him to be eligible for subsidiary protection when there is no longer a real risk that such torture will be repeated if he is returned to that country”. Although the qualification Directive states that past serious harm “is a serious indication” there is a real risk of suffering such harm in future, “that does not apply where there are good reasons for believing that the serious harm previously suffered will not be repeated or continue”.
The Court then turned to MP’s health issues, noting that he “presently continues to suffer severe psychological after-effects resulting from the torture” and that “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”. It stated that this provision of the qualification Directive “must be interpreted and applied” consistently with Article 4 of the EU Charter of Fundamental Rights, which set out an “absolute” right to be free from torture or other inhuman or degrading treatment. This Charter right corresponded to Article 3 ECHR, so “the meaning and scope of the rights are the same”, as set out in Article 52(3) of the Charter. So the ECJ followed the case law of the ECtHR on Article 3 ECHR, referring specifically to the revised test on “medical cases” set out in Paposhvili, and adding that when applying Article 4 of the Charter, “particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin”.
It followed that the Charter, interpreted in light of the ECHR, “preclude[s] a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.” It also recalled its previous ruling on “medical cases” and the Returns Directive.
But since the courts in the UK had already ruled out MP’s removal, the non-removal point was not relevant. Rather the issue was whether MP is entitled to subsidiary protection. Here the ECJ recalled its prior ruling that “medical cases” were not normally entitled to subsidiary protection, but noted that M’Bodj concerned a victim of assault in the host Member State, whereas MP was tortured in the country of origin and the after-effects would be exacerbated in the event of return. Both of these factors are relevant when interpreting the qualification Directive; but “such substantial aggravation 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” the Directive.
What about the lack of medical care for after-effects of torture in the country of origin? The Court reiterated its position that a right to subsidiary protection “cannot simply be the result of general shortcomings in the health system of the country of origin”, and that “deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection”.
But on this point, it was crucial that this was not an “ordinary” example of a “medical case”, but one deriving from torture. The preamble to the qualification refers to taking into account international human rights law considering the subsidiary protection definition; and so the ECJ interpreted the UN Convention Against Torture (UNCAT) for the first time in its case law. In particular, the Court examined Article 14 of that Convention, which gives torture victims a right to redress and rehabilitation.
Overall, the Court insisted on a separation between UNCAT and refugee law, by analogy with the distinction between refugee law and the international law of armed conflict (the Geneva Conventions) which it had previously insisted upon in its judgment in Diakité. This was because the UNCAT system and refugee law pursue different purposes. So it followed that:
…it is not possible, without disregarding the distinct areas covered by those two regimes, for a third country national in a situation such as that of MP to be eligible for subsidiary protection as a result of every violation, by his State of origin, of Article 14 of the Convention against Torture.
So not every violation of Article 14 of UNCAT leads to subsidiary protection. But that implies that some violations do. The Court went on to clarify:
It is therefore for the national court to ascertain, in the light of all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations, whether, in the present case, MP 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 by the authorities of that country. That will be the case, inter alia, if, in circumstances where, as in the main proceedings, a third country national is at risk of committing suicide because of the trauma resulting from the torture he was subjected to by the authorities of his country of origin, 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. There will also be such a risk 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.
So there are two cases where subsidiary protection would apply, due to intentional deprivation of care: the authorities are “not prepared” to fulfil their UNCAT obligations of rehabilitation to a person at risk of suicide following from torture suffered in that country; or there is discriminatory policy “making it more difficult” for certain groups to obtain such treatment. These criteria are non-exhaustive (“inter alia”). The evidence to be considered to this end is “all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations”. Again, the sources of evidence are non-exhaustive (“in particular”).
At first sight, the Court’s judgment sticks to the framework developed in its prior case law: there is no right to subsidiary protection in “medical cases”, except where care is deliberately refused. But look closely, and it’s clear that the Court has developed that case law in important ways in today’s judgment.
First of all, the definition of “medical cases” is now wider, since the Court explicitly adopts the revised interpretation of Article 3 ECHR from recent ECtHR case law. Secondly, in torture cases, the Court has elaborated what factors to consider to determine if inadequate health care would be intentionally withheld in the country of origin. If the asylum seeker is suicidal due to the after-effects of torture carried out in that country, then if that country is either “not prepared” to fulfil UNCAT obligations of rehabilitation to such persons or has a discriminatory policy “making it more difficult” for certain groups to obtain care would amount to an “intentional” deprivation of health care, there is a right to subsidiary protection. The first of these grounds is unique to torture victims, but the second ground should arguably be relevant to any “medical cases”.
Thirdly, the Court has fleshed out the back-up obligation of non-removal for “medical cases” even in the event that subsidiary protection is not granted, insisting that it is an EU law obligation based on the Charter, alongside its prior ruling that the Returns Directive rules it out. This is particularly relevant for the UK and Ireland, given that they are not covered by the Returns Directive. In fact it is not obvious at first sight how EU law – and therefore the Charter – applies in those countries to such cases, if the persons concerned have no right to subsidiary protection. Arguably the link to the grounds for subsidiary protection set out in the qualification Directive is sufficient; but the Court should have spelled this out.
In the Member States bound by the Returns Directive, the finding that the Charter applies to prevent such removal simplifies the process of guaranteeing the non-removal of “medical cases”. Furthermore, it should be recalled that the case law on that Directive guarantees health care and medical assistance.
Overall, then, today’s judgment has gone some way to ensuring greater protection, where necessary, for the most vulnerable migrants: torture victims and the terminally ill.
Barnard & Peers: chapter 9, chapter 26
JHA4: chapters I:5, I:7
Photo credit: The Guardian Nigeria