Author
The Refugee Law contains a number of provisions related to medical reports, which should be taken into consideration when assessing credibility of statements, as well as past persecution or serious harm. First, asylum applications are examined and decisions are taken individually, objectively and impartially taking into account, among other things, the relevant statements and documents submitted by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm.[1] Such documents would, for example, include medical reports.
Other instances where the law refers to medical reports and how they should be taken into account for the assessment of credibility as well as past persecution or serious harm are the following:
- As part of the initial medical examination of all applicants, the examining physician, psychologist or other specialist prepares a report on the existence of any special reception needs and / or special procedural guarantees of the applicant and the nature of those needs;[2]
- The personal interview may be omitted if the Asylum Service is of the opinion that the applicant is unfit or unable to be interviewed owing to enduring circumstances beyond his control. When in doubt, the Asylum Service shall consult a medical professional to establish whether the condition that makes the applicant unfit or unable to be interviewed is of a temporary or enduring nature;[3]
- Where the examining officer considers it relevant for the evaluation of the application they shall, subject to the applicant’s consent, arrange for a medical examination of the applicant concerning signs that might indicate past persecution or serious harm, as well as symptoms and signs of torture or other serious acts of physical or psychological violence, including acts of sexual violence. The results of the medical examinations shall be assessed by the determining authority along with the other elements of the application;[4]
- The personnel examining applications and taking decisions have the possibility to seek advice, whenever necessary, from experts on particular issues, such as medical, cultural, religious, child-related or gender issues.[5]
However, all of the above may not be applied in practice. Overall, there are inconsistencies in the way each officer/caseworker interprets medical reports and in the way these are evaluated. Specifically, medical reports provided by private doctors in Cyprus or from the country of origin of the asylum seeker are often viewed as not credible and not taken into consideration by certain officers/caseworkers, whereas others may evaluate them and include them in the assessment. In addition, the costs for reports from private doctors are borne by the applicant. Medical reports from public hospital doctors are usually considered to be more credible, but there are still discrepancies as to how such reports are assessed. Currently there are no NGOs providing medical reports.[6] The only available NGO report is the one that may be provided under the specialised services for victims of torture, trafficking, and gender-based violence implemented by the Cyprus Refugee Council,[7] which is a psychological report that may be drafted as part of the rehabilitation services offered to victims of torture.
Victims of torture or violence
The law provides that: ‘Where the examining officer considers it relevant for the evaluation of the application, the officer shall, subject to the applicant’s consent, arrange for a medical examination of the applicant concerning signs that might indicate past persecution or serious harm, as well as symptoms and signs of torture or other serious acts of physical or psychological violence, including acts of sexual violence. The results of the medical examination shall be assessed by the determining authority along with the other elements of the application’.[8]
For this purpose, a State Medical Board was established to evaluate torture claims within the asylum procedure. In the past, the operation of this Board has been problematic, to the point where the UN Committee Against Torture highlighted the issue.[9] Action was taken by the authorities and in early 2017, the Ministry of Health in collaboration with EUAA and the International Rehabilitation Council for Torture Victims (IRCT) organised trainings for all professionals that are part of the procedure, including a psychological assessment. The procedure followed after these trainings is closer to the training received and to that described under the Istanbul Protocol.
In late 2019 and throughout 2020, the procedure before the Medical Board came to a complete halt in view of the new national health system (GESY); many state doctors resigned to take up private practices, including doctors who were trained and part of the Medical Board. As a result, it did not operate for most of 2020. In 2021 and 2022, according to the Asylum Service, the Board resumed operation and referrals were sent. However, there is no information on the doctors on the Board and whether they have been adequately trained. Furthermore, no decisions have been identified to indicate the duration of examination or the recommendations being made. The situation remained the same throughout 2023.
The UN Committee against Torture in the latest report on Cyprus in December 2019 expressed concern about ‘the lack of procedural safeguards to ensure a timely medical examination of alleged victims of torture and ill-treatment, including psychological or psychiatric assessments when signs of torture or trauma are detected during personal interviews of asylum seekers or irregular migrants’.[10]
Referrals to the Medical Board are at the discretion of the examining officer. It has been observed in recent years that practice varies. Caseworkers of the Asylum Service, if they have no doubt as to the credibility of the applicant, will grant protection without referring to the Medical Board in many cases and tend to refer only cases that are considered to require further examination/evaluation. On the other hand, EUAA caseworkers examining asylum applications under the support plan seem to be more reluctant to refer applicants to the Medical Board.[11] Between 2018 and 2023, EUAA caseworkers identified and examined various cases in which the applicant alleged they had been subjected to torture; the applicant was not referred to the Medical Board and their application was rejected as, despite finding the torture claim to be credible, they were found to be not credible on the reasons for which the torture took place or that there was no risk of the torture happening again.[12]
When an asylum seeker is referred to the Medical Board, the Board plans the appointment, in most cases several months after the referral has been made by the Asylum Service. Considering that the initial interview leading to the referral is usually conducted on average two years after the submission of the asylum application, this leads to a considerably delayed medical examination of victims of torture, which will inevitably affect the Board’s findings. Throughout 2018 and 2019 most cases took between 12-18 months before the Medical Board alone. From then on, they require at least another year before the Asylum Service issues a first instance decision on the asylum claim. In 2022, and 2023 there were no cases to indicate the current trends.[13]
There have not been enough cases and reports to assess the quality of the reports issued and their impact on the asylum assessment. A medical report reviewed at the end of 2018 in a case represented by the Cyprus Refugee Council noted physical findings (scars) and that the applicant had symptoms indicating PTSD, indicating that a psychological assessment is now carried out. Furthermore, the report actually concluded that the findings could be the result of torture, also an improvement from the former practice. However, in the subsequent decision on the asylum application issued by the Asylum Service based on a recommendation by a EUAA caseworker, although the applicant was found to be credible on the injuries sustained, noting that the medical report confirmed these; the applicant was found to be not credible regarding the reasons for which the attack took place. As for the PTSD, the decision stated that it was taken into consideration but that it could not excuse the non-satisfactory internal credibility of the applicant’s statements and the application was rejected.[14]
In 2023, a case was brought before the IPAC where the applicant had claimed being subjected to violence but was not referred for medical examination during the first instance examination of the application by the Asylum Service. The judge proceeded to make a referral to a psychologist for assessment of the claim of violence so that they could carry out an ex nunc examination of the case.[15] However, the legal representative of the state submitted an application/certiorari before the Supreme Court, which led to the referral being quashed as the Supreme Court decided that the IPAC had acted beyond its jurisdiction.[16] The Supreme Court decision was appealed before the second instance procedure of the Supreme Court, which upheld the first instance decision confirming that the IPAC does not have such jurisdiction.[17] Following these decisions, the IPAC does not have the jurisdiction to refer applicants for medical examinations but is obliged to annul the first instance decision and order a review by the Asylum Service.
[1] Article 18(3) Refugee Law.
[2] Article 9KΔ(3)(b) Refugee Law.
[3] Article 13A(2)(b) Refugee Law.
[4] Article 15 Refugee Law.
[5] Article 18(7A)(b)(ii) Refugee Law.
[6] Information provided by Cyprus Refugee Council.
[7] For more information, see Cyprus Refugee Council, Our projects, available at: https://bit.ly/2DV3s9c.
[8] Article 15 Refugee Law.
[9] UNCAT, Concluding Observations on the Fourth Periodic Report of Cyprus, 30 April 2015, available at: https://tinyurl.com/k8uku5cu.
[10] UNCAT, Concluding Observations on the Fifth Periodic Report of Cyprus, December 2019, available at: https://tinyurl.com/3jcjevns
[11] Based on information from cases represented by the Cyprus Refugee Council.
[12] Ibid.
[13] Ibid.
[14] Information provided from the Cyprus Refugee Council.
[15] Ibid.
[16] Supreme Court, First Instance Jurisdiction, Application No. 31/2023, 7 April 2023, available in Greek at: https://tinyurl.com/dxfu4cyp.
[17] Supreme Court, Second Instance Jurisdiction, Application No. 30/2023, 15 May 2023, available in Greek at: https://tinyurl.com/jaybc6cj.