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Medical reports within the context of the asylum claim
The Aliens Act does not contain any guidelines for medical examinations. The Swedish asylum procedure operates on the principle that any evidence can be admitted in support of an asylum claim. Therefore, the law does not expressly refer to the possibility of a medical certificate in support of the applicant’s statement regarding past persecution or serious harm. However, as a result of the R.C. v. Sweden ruling of the European Court of Human Rights (ECtHR), Sweden has been reminded of the obligation on its authorities to carry out a medical examination if there is an indication on an initial non-expert medical report that the applicant could have been a victim of torture.[1] Following the ruling by the ECtHR, the Migration Court of Appeal has in several rulings specified the investigative duty of the migration authorities and confirmed the principles of R.C. v. Sweden.[2]
In September 2022, the Migration Court of Appeal referred a case back to the Migration Court.[3] The applicant had requested a medical examination as he claimed he had been the victim of torture. Both the Migration Agency and the Migration court rejected his request. The applicant and counsel contacted the Swedish Red Cross Treatment Centre for persons affected by war and torture on their own initiative, but the Migration court did not wait for the result of the medical examination. The court questioned the credibility of the statements. The result of the medical examination however supported the applicant´s statement. The Migration Court of Appeal found that the fact that the court did not give the applicant the opportunity to submit said evidence was a serious deficiency in the court’s handling of the case.
The Migration Agency issued a legal position as guidance for case workers. The legal position clarifies that applicants who claim that they have been subject to torture or other ill-treatment amounting to a need for international protection and who present a certificate indicating that they have been subjected to such treatment shall, subject to certain exceptions, be further examined at the state’s cost.[4] Exceptions may be made in cases where:
- Injuries are not disputed;
- The Migration Agency intends to grant the applicant refugee status or alternative protection status;
- The applicant’s narrative contains extensive credibility issues; and
- The situation in their country of origin has changed to such an extent that the previous risks of torture and other egregious treatment on the basis of which international protection can be granted is considered to no longer exist.
The Migration Agency has a standard form for medical reports,[5] but not specifically for medico-legal certificates. The latter usually follows the Istanbul Protocol. The certificate has to be formulated in accordance with the rules of the National Social Welfare Board and be signed by an expert in the field. Medical reports may also be requested and submitted by the asylum seeker or their legal counsel at any stage of the procedure. If the medical report plays an important role in the outcome of the case, then the costs may be reimbursed by the Court or the Migration Agency. It has proven difficult to get general practitioners to write formal certificates and express an opinion on the results of torture since they are aware that they are not specialists.
If the Migration Agency finds that further investigation of the physical and/or psychological damage should not be at public expenditure, the applicant should be given reasonable time to submit further investigations at their own expense, according to the Migration Agency’s legal position.[6] This can be done through specialist institutions and through the Swedish Red Cross Treatment Centre for persons affected by war and torture.
In September 2021, the Swedish Red Cross published their alternative report to the United Nations Committee Against Torture,[7] reiterating their concerns from 2014.[8] During 2021, the Swedish Red Cross initiated work to support the Migration Agency with training on the effects of torture and trauma.
In December 2021, guidance for healthcare professionals meeting patients with torture experiences was published by regional health care training centres.[9]
Medical reports in the context of expulsion
As a consequence of the ECtHR ruling in Paposhvili v Belgium,[10] the Migration Agency issued legal guidance on assessing medical grounds that can come within the scope of Article 3 ECHR. In its latest guidance on the matter, the Agency states that the expulsion of a foreigner suffering from a disease, in combination with the lack of adequate care in the home country, may in very specific cases be considered as inhuman and degrading treatment referred to in Article 3 ECHR.
- The standard of proof is high, it must be shown that the person is at a real risk of being subjected to such treatment. The applicant has the burden of proof that an expulsion leads to a treatment contrary to Article 3 ECHR.
- An overall assessment must be made. Factors that are important in the assessment are the state of health, the availability of adequate and appropriate care in the home country, the cost for the care, social networking and the general situation in the home country.
- If, even after investigation, there are still uncertainties about whether the applicant risks treatment in contravention of Article 3, the state must obtain individual and sufficient guarantees from the receiving state that appropriate treatment will be available to the person in question.
- The risk of being subject to treatment contrary to Article 3 ECHR should be assessed for children in the same way as for adults, taking into account the fact the concerned person is a child.[11]
As mentioned in the 2021 AIDA report, on 24 September 2020, the UN Committee on the Rights of Persons with Disabilities (CRPD) published its decision in a case litigated by the Swedish Refugee Law Center concerning the expulsion to Iraq of a woman suffering from severe depression.[12] The CRPD considered that the Swedish authorities should have assessed whether the woman would be able to access adequate medical care if removed to Iraq and found that Sweden had failed to fulfil its obligations under Article 15 of the Convention on the Rights of Persons with Disabilities.
On 6 September 2021, the UN Committee on the Rights of Persons with Disabilities (CRPD) published a decision in another case litigated by the Swedish Refugee Law Center.[13] This time, too, the criticism concerned Sweden’s assessment of mental illness in the asylum process. The case concerned a man from Afghanistan with severe mental illness. The CRPD did not consider that Sweden had sufficiently investigated whether the man could actually access care in Afghanistan. Another important part of the criticism concerned the assessment of the seriousness of the man’s health condition. The Committee considered that the Swedish authorities’ assessment that the risk of suicide was linked to the asylum process had taken too much precedence in the Swedish process. The CRPD found that Sweden had failed to fulfil its obligations under Article 15 of the Convention on the Rights of Persons with Disabilities.
[1] ECtHR, R.C. v. Sweden, Application No 41827/07, 9 June 2010, available at: http://bit.ly/3nt3ks5.
[2] Migration Court of Appeal, MIG 2014:21, UM3739-14, 23 September 2014, available in Swedish at: http://bit.ly/2jPcQ5f. Migration Court of Appeal, MIG 2012:2, 20 January 2012, available in Swedish at: http://bit.ly/3TNPcFA.
[3] Migration Court of Appeal, decision UM 2621-22, 20 september 2022.
[4] Migration Agency, Rättsligt ställningstagande, Medicinska utredningar av åberopade skador – RS/022/2021, available in Swedish at: https://bit.ly/3fydJMX.
[5] Migration Agency, Utlåtande från läkare vid prövning av hälsotillstånd i ärenden om uppehållstillstånd eller verkställighetshinder, available in Swedish at: https://bit.ly/2GCAwFm.
[6] Migration Agency, Rättsligt ställningstagande, Medicinska utredningar av åberopade skador – RS/022/2021, available in Swedish at: https://bit.ly/3fydJMX.
[7] Swedish Red Cross, Alternative Report to the United Nations Committee Against Torture regarding Sweden’s eighth periodic report submitted by Sweden under article 19 of the Convention pursuant to the optional reporting procedure, due in 2018, available at: https://bit.ly/3uDkozo.
[8] In a report from 2014 the Swedish Red Cross highlighted the lack of access to proper investigation in situations where an asylum seeker claims they have been subject to torture: Swedish Red Cross, Tortyrskador i asylprocessen under lupp. Hur värderas tortyrskador i den svenska asylprocessen, 2014, available in Swedish at: https://bit.ly/3uCyzEQ.
[9] Transkulturellt Centrum i region Stockholm och Kunskapscentrum för migration och hälsa i region Skåne, Identifiera, utreda och behandla tortyrskador Handledning för vårdpersonal som möter patienter med tortyrerfarenheter, December 2021, available at: https://bit.ly/3kGfhsO.
[10] ECtHR, Paposhvili v. Belgium, Application No 41738/10, Judgment of 13 December 2016, EDAL, available at: https://bit.ly/2UR2eXM.
[11] Migration Agency, Rättsligt ställningstagande angående tillämpning av artikel 3 i Europakonventionen då sjukdom åberopas – RS/008/2020, 17 June 2020, available in Swedish at: https://bit.ly/48iG3ur
[12] UN Committee on the Rights of Persons with Disabilities, Decision on Communication no. 60/2019, September 2020, available at: https://bit.ly/3uPW3BM, 24.
[13] UN Committee on the Rights of Persons with Disabilities, Decision on Communication no. 58/2019, September 2021, available at https://bit.ly/3wfOKGG.