CJEU: Opinion AG Bot in Case C-353/16 MP, 24 October 2017

Tuesday, October 24, 2017

On 24 October 2017, Advocate General Bot published his Opinion in case C-353/16 MP, which concerned the scope of subsidiary protection in cases where an applicant would suffer from serious harm to his or her physical or psychological health if returned to the country of origin due to a lack of appropriate psychological care. The main proceedings concern a Sri Lankan national who applied for asylum in the UK and who claimed, inter alia, that if returned to that country he would not receive the appropriate care for treating his psychological condition caused by being previously tortured by Sri Lankan security forces.

First, AG Bot stated that the Qualification Directive allows the granting of subsidiary protection only if there is a risk of serious harm, resulting from torture or inhuman or degrading treatment of an applicant, in the future, if returned to the country of origin. In that regard, the public authorities in the country of origin should be directly or indirectly, but always intentionally, responsible for inflicting the serious harm. In this case, the risk of deterioration in the health of the applicant as a result of there being no appropriate treatment in his country of origin is not sufficient to warrant him subsidiary protection.

Secondly, AG Bot recalled the CJEU’s understanding in case C-542/13 M’Bodj that the likelihood of deterioration in the state of health of a third country national not arising from that person being deliberately deprived of health care is not covered by Article 15 of the Qualification Directive. It does not matter, he argued, that the psychological conditions are the after-effects of torture suffered in the past in the country of origin, and not a naturally occurring illness such as in M’Bodj.

Thirdly, Advocate General Bot relied upon S.J. v. Belgium to affirm that, according to the ECtHR’s jurisprudence, a lack of treatment in the country of origin only justifies the granting of subsidiary protection in very exceptional cases and where the humanitarian grounds against the removal are compelling, which he does not interpret as being the case of MP.

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Medical Reports/Medico-legal Reports
Subsidiary Protection