Use of medical reports

Belgium

Country Report: Use of medical reports Last updated: 01/04/21

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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 thinks this is relevant to the case. It can request such a medical examination as soon as possible, if necessary by a doctor assigned by the CGRS. In the medical report a clear difference should be made between objective observations and the observations which are based on the declarations of the applicant. The report can be sent to the CGRS only 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 made use of 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 to provide such a report on his or her own initiative and expenses. In this case the medical report should be sent to the CGRS as soon as possible and the CGRS can request an advice concerning the report from a doctor appointed by them.[4]

The CGRS should evaluate the report together with all the other elements of the case.[5]

It is not yet clear how this new 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 him or her during an interview and to evaluate his or her credibility, and medical attestations that describe physical or psychological harm undergone in the past and that is potentially important to determining the well-foundedness of the application.

Mental state and credibility

As already mentioned, a “Psy Unit” at the CGRS existed until 2015, consisting of a psychologist and a reference person in every regional section to provide support services to protection officers upon request if they believe that the psychological situation of the asylum seeker might have an impact on the way the interview can be conducted as well as on the determination of protection needs and status.[6] The purpose of the psychologist’s intervention was clearly not to confirm or contradict certain elements of the asylum application. The Unit was shut down because of a lack of resources and the necessity to focus on other priorities.

Given that the burden of proof lies on the asylum seeker, the CGRS considers that it is his or her role to provide a psycho-medical attestation if he or she wants to justify his or her inability to recount his or her 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 taken into consideration in determining the protection needs.

If an asylum seeker has psychological problems which impede him to have a normal interview or an interview at all, the CGRS expects the asylum seeker and/or his lawyer to provide a medical attestation. There is not yet a standardised procedure for these kind of cases but the CGRS evaluates on a case by case basis if an interview is possible or of special arrangements need to be made.[7] In such cases the applicant will be asked – through the intermediary of his lawyer – to answer certain questions in writing so as to provide the CGRS with all the elements necessary for the processing of 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 to adapt 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.[8]

In a judgment of 22 October 2020, the CALL annulled a decision of the CGRS in a case concerning a woman with important psychological problems. On the basis of the psychological reports provided by the applicant and mentioning inter alia symptoms of posttraumatic stress disorder, the CGRS had decided she had particular procedural needs. During the personal interview, the woman had frequently mentioned she felt unwell and she wanted a break. Each time, a break was allowed. However, the interview had lasted 6 hours in total, whereas the internal charter of the CGRS prescribes a personal interview of 4 hours, in exceptional cases to be prolonged with maximum 30 minutes. The CALL judged that given the psychological vulnerability of the woman, a personal interview of 6 hours was inadequate to properly assess the credibility of her story.[9]

Medical evidence of past persecution or serious harm

Until now, medical reports demonstrating physical harm as evidence of past persecutions or inhuman treatments were mostly put aside by the CGRS, which argues that such reports cannot determine the exact cause of the harm, its perpetrator nor the reasons that lie behind it.[10] However, in some rare cases, the CGRS has been required by the CALL to further examine the circumstances surrounding the physical harm experienced by an asylum seeker. In presence of physical scars for example, the burden of proof is reversed and the CGRS is obliged to look further into the circumstances surrounding the causes of persecution or serious harm.[11]

This was the case in a judgement of July 2018 in which the applicant was given the benefit of the doubt and recognised as a refugee because of the medical attestation he had provided to the CGRS. In fact, the medical attestation demonstrated signs of torture and severe injuries. However, the CALL limited the recognition of mistreatment only to some of the existing scars of the applicant, while other signs (e.g. on the toe nails or the pulled fingers) were not providing concluding evidence of mistreatment according to the CALL. [12]

In March 2019 the Council of State annulled a judgment of the CALL because it had not sufficiently taken into account 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.[13]

Furthermore, there is an overall exception when it comes to risks of female genital mutilation. In such cases, it is mandatory for the asylum seeker to 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. In order to keep the protection status, a new medical attestation has to be provided to the CGRS every year.

Some NGOs 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.[14] This application for protection based on medical reasons has been taken out of the asylum procedure and replaced with a completely separated procedure that entails less 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 to have to take into consideration medical elements put forward during the asylum procedure, even if they could be relevant for the asylum application.

In M’Bodj and Abdida,[15] two judgments delivered on 18 December 2014, the CJEU has ruled that this 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 a protection against harm caused by “actors of persecution or serious harm”, in the meaning of the Qualification Directive. This jurisprudence was later implemented in Belgian jurisprudence.[16] Nevertheless, as the Return Directive and the EU Charter of Fundamental Rights remain applicable, 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]        CBAR-BCHV, Trauma, geloofwaardigheid en bewijs in de asielprocedure, August 2014, 74-80.

[7]        Myria, Contact meeting, 18 January 2017, available at: http://bit.ly/2kx93eZ, para 25.

[8]       CALL, Decision No 222091, 28 May 2019.

[9]        CALL, Decision No 242762, 22 October 2020.

[10]       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.

[11]       Article 48/7 Aliens Act.

[12]      CALL, Decision No 207 193, 25 July 2018.

[13]      Council of State, Judgment No 244 033, 26 March 2019, available in French at: https://bit.ly/2uWoO57.

[14]       Article 9-ter Aliens Act.

[15]       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.

[16]       CALL, Decision No 168 897, 1 June 2016; Constitutional Court, Decision No 13/016, 27 January 2016.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation