The appellant Sri Lankan national appealed against a refusal ( EWCA Civ 829) of his application for asylum.
The respondent secretary of state had accepted that the appellant had been a member of the Liberation Tigers of Tamil Eelam, and that he had been detained and tortured by the Sri Lankan security forces. However, 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. There was evidence that the appellant had physical injuries consistent with his account of torture, and that he suffered from severe post-traumatic stress disorder and depression, and was at high risk of suicide. The Upper Tribunal and the Court of Appeal had determined that Directive 2004/83 was not intended to catch cases where the applicant was at risk of harm to his health upon return to his country of origin, rather than at risk of persecution.
The appellant submitted that the court and tribunal had construed the Directive too narrowly, and that as his mental illness had been caused by torture inflicted by the Sri Lankan authorities, and as Sri Lanka had inadequate facilities to treat it, he should be entitled to subsidiary protection. The secretary of state argued that it was a necessary component of subsidiary protection that there existed a risk of serious harm from future ill treatment in the country of origin, and that a risk of potential future consequences of past ill treatment, of which there was no risk of repetition, did not engage the Directive.
HELD: In the absence of relevant authorities from the Court of Justice of the European Union or the European Court of Human Rights, a question was referred to the CJEU: namely whether art.2(e) of the Directive, read with art.15(b), covered 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.