Author
The Aliens Act provides the possibility for the CGRS to request a medical report relating to indications of acts of torture or serious harm suffered in the past if the CGRS considers it relevant to the case. It can request such a medical examination as soon as possible by a doctor assigned by the CGRS. In the medical report, a clear difference should be made between objective observations and those based on the declarations of the applicant. The report can only be sent to the CGRS with the applicant’s consent.[1] However, refusal to undergo a medical examination shall not prevent the CGRS from deciding on the asylum application.[2] The CGRS has stated that it has not yet used this possibility.[3]
If no such request is made by the CGRS and the applicant declares to have a medical problem, the CGRS should inform him or her of the possibility of providing such a report on their initiative and expenses. In this case, the medical report should be sent to the CGRS as soon as possible, and the CGRS can request advice concerning the report from a doctor they appointed.[4]
The CGRS should evaluate the report together with all the other elements of the case.[5]
It is not yet clear how this provision has been implemented. In current practice, a distinction can be made between psycho-medical attestations that provide evidence on the mental state of the asylum seeker, relevant to determining what can be expected from them during an interview and to evaluate their credibility, and medical attestations that describe physical or psychological harm undergone in the past and that is potentially important to determine whether the application is well-founded.
Mental state and credibility
Given that the burden of proof lies on the asylum seeker, the CGRS considers that it is their role to provide a psycho-medical attestation if they want to justify their inability to recount their story in a coherent and precise way without contradictions. Although an attestation of a psychological problem will never suffice for the CGRS to grant a protection status, it always has to be considered in determining the protection needs.
If an asylum seeker has psychological problems that could influence the results of the interview or hinder its realisation, the CGRS expects the asylum seeker and/or their lawyer to provide a medical attestation. There is not yet a standardised procedure for this kind of case, but the CGRS evaluates on a case-by-case basis if an interview is possible or if special arrangements need to be made.[6] In such cases, the applicant will be asked – through the intermediary of his lawyer – to answer specific questions in writing to provide the CGRS with all the elements necessary to process the asylum application. In such cases, the CALL has referred to UNHCR’s Handbook on Procedures and Criteria for Determining the Status of Refugees, which recommends adapting the fact-finding methodology to the seriousness of the applicant’s medical condition; to reduce the burden of proof normally placed on the applicant and to rely on other sources to obtain information that the applicant cannot provide.[7]
In a judgment of 22 October 2020, the CALL annulled a decision of the CGRS in a case concerning a woman with serious psychological problems. Based on the psychological reports provided by the applicant and mentioning, inter alia, symptoms of post-traumatic stress disorder, the CGRS had decided she had particular procedural needs. During the personal interview, the woman frequently said she felt unwell and wanted a break. Each time, a break was allowed. However, the interview lasted 6 hours, whereas the internal charter of the CGRS prescribes a personal interview of 4 hours, in exceptional cases, to be prolonged with a maximum of 30 minutes. The CALL judged that given the psychological vulnerability of the woman, a personal interview of 6 hours was inadequate to assess the credibility of her story correctly.[8]
Medical evidence of past persecution or serious harm
To date, medical reports demonstrating physical harm as evidence of past persecution or inhuman treatment have been mostly put aside by the CGRS, arguing that they cannot determine the exact cause of the harm, their perpetrator or the reasons behind it.[9] However, in some rare cases, the CALL requested the CGRS to examine further the circumstances surrounding the physical harm experienced by an asylum seeker. In the presence of physical scars, for example, the burden of proof is reversed, and the CGRS is obliged to look further into the causes of persecution or serious harm.[10]
In March 2019, the Council of State annulled a judgment of the CALL because it had not sufficiently considered the medical attestations that were provided. In that case, the medical certificates submitted by the applicant in the context of his subsequent application included findings of physical and psychological injuries which may have resulted from ill-treatment linked to the state of slavery. While the CALL had ruled that the evidence provided did not restore the credibility of the applicants account of his status as a slave, the Council of State found that the administrative judge did not carry out a detailed examination of the risk of persecution and violated the rights guaranteed by articles 3 and 4 ECHR.[11]
Furthermore, there is an overall exception when it comes to the risks of female genital mutilation. In such cases, the asylum seeker must prove through a medical attestation that she – or her minor daughter (depending on whose circumcision is said to be feared for) – is already circumcised or not. A new medical attestation must be provided to the CGRS every year to keep the protection status.
Some NGOs, such as ‘Constat’ or ‘Exil’, deliver free medical examinations and attestations. The main objective of the organisation ‘Constat’ is to defend and promote the full implementation of the Istanbul Protocol into the Belgian asylum procedure, in particular regarding the examination of physical and psychological consequences of torture and other cruel, inhuman and degrading treatments or punishments over asylum seekers. Another organisation acting in this specific field is ‘Exil’, which offers medical, psychiatric, psychological, psychotherapeutic and/or fascia-therapeutic consultations to victims of human rights violations and torture.
In this context, it is also important to mention the so-called “medical regularisation procedure”, which is not technically part of the asylum procedure but is closely related to it. In cases where return to the country of origin would create a risk of inhuman or degrading treatment resulting from the deterioration of the health of the person concerned – e.g. due to a lack of access to appropriate medical treatment – an application should be lodged with the Immigration Office instead of the CGRS.[12] This application for protection based on medical reasons has been removed from the asylum procedure and replaced with a separate procedure that entails fewer procedural guarantees. In the latter, a standardised medical form has to be filled out and communicated before the request is considered admissible and examined on its merits. A refusal can further only be subjected to an annulment (and suspension) appeal. The existence of this procedure is a way for the CGRS to avoid having to consider medical elements put forward during the asylum procedure, even if they could be relevant to the asylum application.
In M’Bodj and Abdida,[13] two judgments delivered on 18 December 2014, the CJEU ruled that the so-called “9ter procedure” is not a form of international protection but a national protection measure on which the EU asylum rules do not apply because it does not entail protection against harm caused by “actors of persecution or serious harm”, in the meaning of the Qualification Directive. This jurisprudence was later reflected in Belgian jurisprudence.[14] Nevertheless, as the Return Directive and the EU Charter of Fundamental Rights remain applicable, and there needs to be an effective remedy available that automatically suspends the execution of the refusal decision in case a return might create a risk of serious or irrevocable damage to the health of the person concerned, that could amount to a violation of Article 3 ECHR. The current appeal procedure does not seem to satisfy this requirement completely, given the short deadline to file an automatically suspensive urgent appeal.
[1] Article 48/8(1) Aliens Act.
[2] Article 48/8(3) Aliens Act.
[3] Myria, Contact meeting, 16 January 2019, available in Dutch at: https://bit.ly/2HeyRXu, para 300.
[4] Article 48/8(2) Aliens Act.
[5] Article 48/8(4) Aliens Act.
[6] Myria, Contact meeting, 18 January 2017, available at: http://bit.ly/2kx93eZ, para 25.
[7] CALL, Decision No 222091, 28 May 2019.
[8] CALL, Decision No 242762, 22 October 2020.
[9] See for example CALL, Decision No 64 786, 13 July 2011. In this case, the doctor himself mentioned in his medical report that the injuries were “most probably” inflicted by torture, but the CGRS found this insufficient as evidence since the other declarations were considered to be not credible. The proven hypo-reaction, which a psychologist determined to be also “possibly” caused by a traumatic experience, was not accepted as an explanation for the incoherencies in the declarations. The CALL agrees that the medical reports in themselves are not sufficient proof to cast out any doubt on the causes of the harm undergone, but states that the presence of the physical scars as such are sufficient reason already to apply the reversal of the burden of proof in case of past persecution or serious harm and urges the CGRS to conduct additional research into the circumstances surrounding their causes.
[10] Article 48/7 Aliens Act.
[11] Council of State, Judgment No 244 033, 26 March 2019, available in French at: https://bit.ly/2uWoO57.
[12] Article 9-ter Aliens Act.
[13] CJEU, Case C-562/13, Centre public d’action sociale d’Ottignies-Louvain-la-Neuve v Moussa Abdida, 18 December 2014; Case C-542/13, Mohamed M’Bodj v Belgium, 18 December 2014.
[14] CALL, Decision No 168 897, 1 June 2016; Constitutional Court, Decision No 13/016, 27 January 2016.