HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

from local authorities. In those circumstances, the Supreme Court decided to refer the following question to the CJEU: “Does Article 2(e), read with Article 15(b), of Directive 2004/83, cover 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?”. 78 In its judgment, the court stated that it is on referring court to ascertain if the authorities of his country of origin are not prepared to provide for his rehabilitation or if it is apparent that the authorities of that country have adopted a discriminatory policy as regards access to health care, thus making it more difficult for certain ethnic groups or specific groups of individuals, of which MP forms part, to obtain access to appropriate care for the physical and mental after-effects of the torture perpetrated by those authorities. 79 Notwithstanding, it declared that MP would be 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”. 80 From this reasoning, it is clear that the CJEU would consider the existence of serious harm only when it comes from a third-party actor. Consequently, it cannot be based on the result of general shortcomings in the health system of the country Examining the protection of environmental migrants under Article 15 of the Qualification Directive in the context of the Teitiota case ruling by the UN Human Rights Committee makes apparent that the existing legal frameworks are far from perfect. To determine whether the CJEU should change its position on Article 15 of the Qualification Directive, this article analyses the definitions of serious harm by the UNHRC, the courts in New Zealand, and the CJEU. The Teitiota case illustrates the challenges individuals face fleeing their homes due to climate change. Although the courts in New Zealand acknowledged the severe environmental effects in Kiribati, they ruled that the Kiribati government had taken sufficient measures to reduce immediate and significant dangers to life or protection from harsh treatment, such as building seawalls and providing drinkable water. The UNHRC, while acknowledging climate change poses a threat to the right to life under Article 6 of the ICCPR, determined that there was no imminent risk of arbitrary deprivation of life upon Mr Teitiota’s return to Kiribati. of origin”. 81 Conclusion

78 Ibid., para. 26. 79 Ibid., para. 57. 80 Ibid., para. 58. 81 Compare to finding in C-542/13 M’Bodj decision, para. 35.

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