Immigration law and human rights

5.6.2 Medical treatment and Article 3

The CJEU gave an important ruling in MP v SSHD (Directive 2004/83/EC) Case C-353/16. MP had been tortured in Sri Lanka. Medical evidence was submitted to that court that the applicant was suffering the after-effects of torture, severe post-traumatic stress disorder and serious depression, showed marked suicidal tendencies, and appeared to be particularly determined to kill himself if he had to return to Sri Lanka. The evidence also was that psychological care in Sri Lanka would not be adequate for him. The UK Upper Tribunal and Court of Appeal had found that the Qualification Directive did not apply to the risk of suicide in these circumstances. They agreed that it would breach Article 3 ECHR to return him to Sri Lanka, but not that he would be entitled to subsidiary protection.

The CJEU drew on the Convention Against Torture held that:

‘Articles 2(e) and 15(b) of Directive 2004/83, read in the light of Article 4 of the Charter, must be interpreted as meaning that 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 after-effects of that torture, that being a matter for the national court to determine.’ (para 58)

5.10.3 Has there been an interference with the right?

The ECtHR found in the case of Hoti v Croatia (App no. 63311/14), judgment 26 April 2018, that there was a violation of Article 8 ECHR where the applicant had not had an effective opportunity to regularise his residence status. He was born in Croatia to political refugees from Albania. Albania did not recognise him as Albanian and the applicant was therefore stateless. Not being able to regularise his status created a situation of uncertainty for him, which had had an impact on his private life, namely difficulties in finding employment, contracting health insurance or regulating his pension rights.

5.11.7 Status is precarious

In TZ (Pakistan) and PG (India) v SSHD  [2018] EWCA Civ 1109 the Court of Appeal applied the Supreme Court’s decision in Agyarko to cases where the appellant’s immigration status was precarious at the time of forming a relationship with a British citizen. TZ had come to the UK as a student in 2008. He had obtained a post-study work visa, but a later application for a Tier 2 work visa had been refused. The year before this refusal he had formed a relationship with a woman and they had been living together for a year. The CA upheld the Tribunal’s refusal of his appeal on Article 8 grounds. The relationship had been formed while his status was precarious (he had a time limited post-work study visa) and there were no exceptional reasons to outweigh the interests of immigration control.

PG married while in the UK as a visitor. She became the sole carer of her mother-in-law. She could not fulfil the requirements for leave to remain as a spouse. The CA endorsed the approach of the Tribunal in finding that there were no insurmountable obstacles to family life continuing in India, and no exceptional circumstances which outweighed the interests of immigration control.