On 24 April 2018, the CJEU ruled in case C-353/16 MP concerning the preliminary questions referred by the UK Supreme Court on the scope of the subsidiary protection under the Qualification Directive, particularly for victims of torture.

The CJEU found that, under EU law, the fact that a person has in the past been tortured by the authorities of his country of origin but would no longer be at risk of such treatment if he returned to that country is not in itself sufficient justification for granting subsidiary protection. However, in line with the recent case-law of the European Court of Human Rights, namely Paposhvili v. Belgium, the CJEU considered that the Charter of Fundamental Rights of the European Union precludes 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 if such deterioration would endanger his life.

Nevertheless, the prohibition of removal in such cases does not mean that that person should be granted leave to reside in a Member State by way of subsidiary protection. For the CJEU, substantial aggravation of a third country national’s health cannot, in itself, be regarded as inhuman or degrading treatment inflicted on him/her in the country of origin. This will only be the case where the third country national would face a real risk of being intentionally deprived of health care, such as when the authorities of the country of origin are not prepared to provide for rehabilitation of a victim of torture at risk of committing suicide, or when that country has adopted a discriminatory policy as regards access to health care, thus making it more difficult for certain groups to obtain access to appropriate care for the psychical or mental after-effects of the torture perpetrated by its authorities.


ELENA Weekly Legal Update, 11 May 2018, available here.

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