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Mental state and credibility
If an asylum applicant has psychological problems that could influence the results of the interview or hinder its realisation, the CGRS expects the asylum applicant and/or their lawyer to provide a medical attestation justifying 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 must always be considered in determining the protection needs. 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.[1] 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.[2]
The NGO Nansen has expressed concern that measures addressing special procedural needs are insufficiently tailored to the credibility assessment. It argues for an adapted approach to credibility evaluation for applicants affected by trauma, including reducing the burden of proof placed on applicants, giving greater weight to objective elements of the case, and exercising particular caution when considering negative credibility findings in situations involving applicants affected by trauma.[3]
Medical evidence of past persecution or serious harm
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.[4] However, refusal to undergo a medical examination shall not prevent the CGRS from deciding on the asylum application.[5] The CGRS does not make use of this possibility, but examines in what way it could do so in the future in the context of a pilot project that started in 2023 (see Screening of vulnerability).[6]
If no such request is made by the CGRS and the applicant declares to have a medical problem, the CGRS should inform them 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.[7] The CGRS should evaluate the report together with all the other elements of the case.[8]
In practice, medical reports demonstrating physical harm as evidence of past persecution or inhuman treatment are regularly put aside by the CGRS, arguing that the report does not allow to determine the exact cause of the harm, their perpetrator or the reasons behind it and therefor lacks decisive value.[9] However, in some cases, the CALL requested the CGRS to examine further the circumstances surrounding the physical harm experienced by an asylum applicant. 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 applicant must prove through a medical attestation that she has already been subject to female genital mutilation. In asylum procedures related to a minor daughter who hasn’t been subject to FGM yet, a medical attestation proving so must be provided. The aim of this “FGM follow-up” is to ensure that they do not undergo FGM after being granted refugee status by Belgium. Previously, a new medical attestation had to be provided to the CGRS every year to keep the protection status. In 2024, the CGRS changed its policy due to the difficulty some teenage girls have in visiting a doctor every year, and the psychological implications of this annual visit for some of them. Consequently, a medical certificate confirming that the girl has not undergone FGM now only needs to be provided every three years.[12]
Some NGOs, such as ‘Constats’ or ‘Exil’, deliver free medical examinations and attestations. Constats examines the physical and psychological consequences of torture and other cruel, inhuman and degrading treatments or punishments over asylum applicants and records them in a detailed report, following the directives of the Istanbul protocol, which can be used as support in the asylum procedure. ‘Exil’ offers medical, psychiatric, psychological, psychotherapeutic and/or fascia-therapeutic consultations to victims of human rights violations and torture.
Applications for protection based on medical reasons have been removed from the asylum procedure and replaced with a separate procedure that entails fewer procedural guarantees: the so-called ‘medical regularisation procedure’ (see Medical regularisation). 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.[13]. 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.
[1] Myria, Contact meeting, 18 January 2017, available at: http://bit.ly/2kx93eZ, para 25.
[2] CALL, Decision No 222091, 28 May 2019.
[3] Nansen, Vulnerability and special procedural needs, 2021/6, available in Dutch here.
[4] Article 48/8(1) Aliens Act.
[5] Article 48/8(3) Aliens Act.
[6] Myria, Contact meeting, 16 January 2019, available in Dutch at: https://bit.ly/2HeyRXu, para 300; based on the experience of Vluchtelingenwerk Vlaanderen, this possibility has still not been used up until March 2025.
[7] Article 48/8(2) Aliens Act.
[8] Article 48/8(4) Aliens Act.
[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] CGRS, Change in frequency of “FGM monitoring”, available in English here.
[13] Article 9-ter Aliens Act.