A case from 2009. The European Convention on Human Rights does not usually protect asylum seekers in poor physical or mental health, even where they are likely to suffer or die if returned to their home country. In one case for example, a Ugandan national suffering from HIV/AIDS was refused asylum. He was returned home to face inevitable suffering and reduced life expectancy, due to the lack of effective medical treatment in Uganda.
But there are exceptional cases where the asylum seeker is granted asylum. This case tells us how poor an asylum seeker’s health has to be before they are entitled to protection under Article 3 of the Convention – the prohibition of torture, inhuman or degrading treatment or punishment. A brother and sister, both Sri Lankan Tamils, were tortured and raped by the Sri Lankan security forces. They both suffered from post-traumatic stress disorder and depression. They applied for asylum in the UK on the basis that, if returned to Sri Lanka, they would commit suicide. The outcome of several appeals was that they did not qualify for asylum or humanitarian protection, even if returning them to Sri Lanka would cause them to take their own lives.
The Court of Appeal considered the victims’ history, psychiatric reports, and evidence that they had lost their immediate and wider family to state brutality and also to the 2004 tsunami. The judges found that the victims’ had to satisfy an extremely high threshold: including that the ill-treatment they would suffer would be so bad as to be an ‘affront to fundamental humanitarian principles.’ The test was particularly high because the inhuman treatment was going to arise from a mental illness, rather than the brutality of a state army, for example. The judges found that the very high threshold of inhuman treatment had been reached in this case: there was a clear likelihood that the victims’ only perceived means of escape from the isolation and fear in which return would place them, would be to take their own lives.