United Kingdom: UK Supreme Court - Preliminary Reference to the CJEU on the Qualification Directive

Wednesday, June 22, 2016
On the 22nd of June, the UK Supreme Court referred the following question 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?” 

The case MP (Sri Lanka) v Secretary of State for the Home Department concerns a Sri Lankan national that arrived in the UK in January 2005 aged 28. The appellant claimed asylum on the ground 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. A report by a psychiatrist revealed that the applicant was suffering from a severe post-traumatic stress disorder and severe depression. Additionally, the applicant showed a high risk that he would commit suicide. The Court of Appeal 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 resources to deal with it in the receiving country”.

The appellant argues before the Supreme Court 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. For this reason, the appellant’s return would cause him severe mental harm which would amount to a violation of Article 3 of the ECHR. Hence, he should in the same manner be granted subsidiary protection under the Qualification Directive. It makes no difference to his entitlement to subsidiary protection that there is no longer a risk of the ill-treatment which caused his current health status.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Health (right to)
Inhuman or degrading treatment or punishment
Medical Reports/Medico-legal Reports
Subsidiary Protection