MP v Secretary of State for the Home Department.
Date: 2018-04-24
28


In that regard, it should be noted that, under Article 2(e) of Directive 2004/83, a third country national is eligible for subsidiary protection only if substantial grounds have been shown for believing that, if returned to his country of origin, he would face a real risk of suffering one of the three types of serious harm defined in Article 15 of that directive (see, to that effect, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraph 30 and the case-law cited).
36


In that regard, it should be recalled that Article 15(b) of Directive 2004/83 must be interpreted and applied in a manner that is consistent with the rights guaranteed by Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which enshrines one of the fundamental values of the Union and its Member States and is absolute in that that value is closely linked to respect for human dignity, the subject of Article 1 of the Charter (see, to that effect, judgments of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 85 to 87; and 16 February 2017, C.K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 59).
38


It follows from the case-law of the European Court of Human Rights relating to Article 3 of the ECHR that the suffering caused by a naturally occurring illness, whether physical or mental, may be covered by that article if it is, or risks being, exacerbated by treatment, whether resulting from conditions of detention, removal or other measures, for which the authorities can be held responsible, provided that the resulting suffering attains the minimum level of severity required by that article (see, to that effect, ECtHR, 13 December 2016, Paposhvili v. Belgium, CE:ECHR:2016:1213JUD004173810, § 174 and 175; and judgment of 16 February 2017, C.K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 68).
41


Similarly, Article 4 of the Charter must be interpreted as meaning that the removal of a third country national with a particularly serious mental or physical illness constitutes inhuman and degrading treatment, within the meaning of that article, where such removal would result in a real and demonstrable risk of significant and permanent deterioration in the state of health of the person concerned (see, by analogy, judgment of 16 February 2017, C.K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 74). The same conclusion can be drawn as regards the application of Article 19(2) of the Charter, which provides that no one may be removed to a State where there is a serious risk that he would be subjected to inhuman or degrading treatment.
42


In that regard, the Court has held that, particularly in the case of a serious psychiatric illness, it is not sufficient to consider only the consequences of physically transporting the person concerned from a Member State to a third country; rather, it is necessary to consider all the significant and permanent consequences that might arise from the removal (see, by analogy, judgment of 16 February 2017, C.K. and Others, C‑578/16 PPU, EU:C:2017:127, paragraph 76). Moreover, given the fundamental importance of the prohibition of torture and inhuman or degrading treatment laid down in Article 4 of the Charter, particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin.
44


Moreover, the Court has previously held that, in such exceptional cases, the removal of a third country national suffering from a serious illness to a country in which appropriate treatment is not available may constitute an infringement of the principle of non-refoulement and, therefore, an infringement of Article 5 of Directive 2008/115, read in the light of Article 19 of the Charter (see, to that effect, judgment of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 48).
46


The court has also previously held that the fact that Article 3 of the ECHR, as observed in paragraphs 39 to 41 above, precludes, in very exceptional cases, a third country national suffering from a serious illness being removed to a country in which appropriate treatment is not available does not mean that that person should be granted leave to reside in a Member State by way of subsidiary protection under Directive 2004/83 (see, to that effect, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraph 40).
51


In that respect, it should be recalled that the Court has held that the serious harm referred to in Article 15(b) of Directive 2004/83 cannot simply be the result of general shortcomings in the health system of the country of origin. The risk of deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection (see, to that effect, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraphs 35 and 36).
54


In that regard, it must, however, be noted that the regime introduced by Directive 2004/83 pursues different aims and establishes protection mechanisms which are clearly distinct from those of the Convention against Torture (see, by analogy, judgment of 30 January 2014, Diakité, C‑285/12, EU:C:2014:39, paragraph 24).