(CN) – The European Union Court of Justice ruled Tuesday that someone who has been tortured in their home country is eligible for asylum if they face a significant risk of being deprived of physical and psychological health care back home.
A Sri Lankan man identified in court records as M.P. came to the United Kingdom in 2005 and was allowed to stay as a student.
Four years later, he filed an application for asylum claiming he was a former member of the secessionist movement Liberation Tigers of Tamil Eelam, had been tortured by Sri Lankan security forces and would risk being subject to the same treatment if he returned home.
But U.K. authorities rejected the application, finding that M.P. did not prove that he faced a real risk of further detainment and torture in Sri Lanka.
According to a 2004 EU directive setting minimum standards for granting “subsidiary protection,” a person who does not qualify as a refugee can still be given asylum if they risk facing the death penalty, torture or inhumane treatment in their country of origin.
M.P. challenged the U.K.’s decision and submitted medical evidence that he was still suffering aftereffects from his torture in Sri Lanka, as well as post-traumatic stress disorder and depression.
The U.K.’s Upper Tribunal upheld the decision that M.P. had not proven his risk of torture if he returned home, but also held that sending him back to Sri Lanka would violate the European Convention on Human Rights because he would not get appropriate care for his mental illness.
That ruling was appealed to the U.K. Supreme Court, which in turn asked the EU Court of Justice whether a non-EU national suffering from the aftereffects of torture – but who would likely not be subject to torture again in their home country – is eligible for asylum based on the claim that they would not get appropriate health care back home.
On Tuesday, the Luxembourg-based high court answered in the affirmative, finding that an EU member state cannot expel a non-EU national if such removal would worsen that person’s mental health disorders.
“Both the cause of the current state of health of a third country national in a situation such as that in the main proceedings, namely acts of torture inflicted by the authorities of his country of origin in the past, and the fact that, if he were to be returned to his country of origin, his mental health disorders would be substantially aggravated on account of the psychological trauma that he continues to suffer as a result of that torture, are relevant factors to be taken into account,” the 11-page ruling states.
The Court of Justice held that past torture alone, without a substantial risk of further abuse, is not enough to qualify for asylum, but the risk of being intentionally deprived of health care is.
“A third country national who in the past has been tortured by the authorities of his country of origin and no longer faces a risk of being tortured if returned to that country, but whose physical and psychological health could, if so returned, seriously deteriorate, leading to a serious risk of him committing suicide on account of trauma resulting from the torture he was subjected to, is eligible for subsidiary protection if there is a real risk of him being intentionally deprived, in his country of origin, of appropriate care for the physical and mental aftereffects of that torture,” the opinion states.
The EU high court said it is for the U.K. Supreme Court to decide whether M.P. is likely to be intentionally deprived of physical and mental health care if he is returned to Sri Lanka.