MP (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Hughes,Lord Neuberger,Lord Kerr,Lord Toulson,Lady Hale |
| Judgment Date | 22 June 2016 |
| Neutral Citation | [2016] UKSC 32 |
| Date | 22 June 2016 |
| Court | Supreme Court |
[2016] UKSC 32
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Hughes
Lord Toulson
Appellant
Raza Husain QC Alasdair Mackenzie Alison Pickup
(Instructed by Birnberg Peirce and Partners)
Respondents
Jonathan Hall QC Will Hays
(Instructed by The Government Legal Department)
Heard on 11 May 2016
(with whom Lord Neuberger, Lady Hale, Lord Kerr and Lord Hughes agree)
The issue in this appeal is whether the appellant is entitled to "subsidiary protection status" under articles 2 and 15 of 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 otherwise need international protection and the content of the protection granted ("the Qualification Directive").
The main objectives of the Qualification Directive, identified in recital (6), are to ensure that EU member states apply common criteria for the identification of persons in need of international protection and that a minimum level of benefits is available to them.
Article 2 provides:
"For the purposes of this Directive:
(a) 'international protection' means the refugee and subsidiary protection status as defined in (d) and (f); …
(e) 'person eligible for subsidiary protection' means a third country national or stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in article 15 … and is unable, or, owing to such risk, unwilling to avail himself or herself the protection of that country;
(f) 'subsidiary protection status' means the recognition by a member state of a third country national or a stateless person as a person eligible for subsidiary protection …"
Article 15 provides:
"Serious harm consists of
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country or origin; or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
The appellant is a national of Sri Lanka. He arrived in the UK in January 2005, then aged 28, and was given leave to enter as a student. His leave to remain was extended to 30 September 2008. Shortly before its expiry he applied for a further extension. This was refused on 11 December 2008. He claimed asylum on 5 January 2009 on the grounds, in summary, that he had been a member of the Liberation Tigers of Tamil Eelam ("LTTE"), he had been detained and tortured by the Sri Lankan security forces, and, if returned to Sri Lanka, he was at risk of further ill-treatment for the same reason.
The appellant's application was refused by the respondent on 23 February 2009. The respondent did not dispute the core of the appellant's account, that he had been a member of the LTTE and had been detained and tortured for that reason, but she did not accept that he would be of continuing interest to the Sri Lankan authorities or at risk of further ill-treatment if he were returned.
The appellant appealed against the respondent's decision. It is not necessary to set out full details of the procedural history, but ultimately his appeal formed part of a decision by the Upper Tribunal, dated 5 July 2013, giving "Country Guidance" on the risk to Tamils following the end of the Sri Lankan civil war: GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
The Upper Tribunal had medical evidence that the appellant bore scars on his chest and upper and lower limbs which were "highly consistent" with his account of being beaten with blunt instruments, burned with cigarettes and an iron bar, and his hand cut with a knife. It also had evidence of a psychiatrist, who had examined the appellant and had access to his medical records in the UK, that he was suffering severe post-traumatic stress disorder and severe depression, he showed a high degree of suicidality and he appeared to have a serious determination to kill himself if he were returned to Sri Lanka. The appellant did not himself give evidence. The psychiatrist...
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