The BAMF is generally obliged to clarify the facts of the case and to compile the necessary evidence.[1] As a general rule, an applicant is not expected to provide written evidence, but is only obliged to hand over to the BAMF those certificates and documents which are already in their possession and which are necessary ‘to substantiate his claim or which are relevant for the decisions and measures to be taken under asylum and foreigners law, including the decision and enforcement of possible removal to another country’.[2] This is not only relevant with regard to past persecution, but also with a prospective view, since the German asylum procedure includes an examination of ‘serious concrete risks’ to life and limb which an applicant might face upon return.[3] Such a risk may also consist in a potential serious harm on health grounds or in a risk which might result from a lack of appropriate health care in the country of origin.
Based on these principles, the guidelines of the BAMF distinguish between two categories with regard to medical statements:
- Persons claiming a ‘past persecution,’ for whom a detailed (oral) submission is generally deemed sufficient. In addition (and with consent of the applicant), the BAMF may arrange for a medical examination to further corroborate or refute statements by the applicant. In these cases, the costs for the medical examination are covered by the BAM[4]
- Persons claiming a ‘future risk’: In contrast, these applicants must submit medical reports to substantiate their claim of future risks, defined as possible ‘serious concrete risks’ upon return. According to the BAMF’s guidelines, such a medical report has to be issued by a qualified specialist. This means that, as a rule, statements by doctors who are not specialists in the respective medical area should not be accepted. Furthermore, the statements are only accepted if the specialist is entitled to use the title of ‘medical doctor’ in Germany. This also means that statements by other health professionals (such as psychologists or psychotherapists) are generally not deemed sufficient, and that they may only provide a reason to further examine the applicant’s claim.[5]
The BAMF‘s requirements for medical statements are based on legislation which has considerably tightened the rules for the substantiation of diseases in recent years. In 2016, stricter rules for medical statements were introduced with regard to the so-called ‘impediments to removal’ which might result in a toleration (Duldung) based on national law.[6] With the introduction of a new amendment in 2019, the same rules apply to asylum procedures in which medical reasons are presented which might result in a removal ban based on conditions in the country of return.[7] At the same time, the requirements for medical certificates have been expanded: the law now stipulates that a medical certificate should in particular set out:[8]
- the actual circumstances which have led to the professional assessment of the applicant‘s condition;
- the method of assessment;
- the professional-medical assessment of the clinical picture (diagnosis);
- the severity of the disease;
- the Latin name or the classification of the disease according to ICD-10;
- the consequences that are likely to result from the medical condition;
- necessary medications, including their active substances and their international name.
Even before the new law came into effect, there were frequent debates on the standards which medical reports have to fulfil in order to be accepted by authorities or courts, particularly in cases of alleged Post-Traumatic Stress Disorder. The Federal Administrative Court found in 2007 that a medical expertise attesting a Post-Traumatic Stress Disorder has to adhere to certain minimum standards but does not necessarily have to meet all requirements of an expertise based on the criteria of the International Classification of Diseases (ICD-10). Accordingly, if a medical report complies with minimum standards, it must not simply be disregarded by authorities or courts, but they have to seek further opinions if doubts remain on the validity of the report submitted.[9] This ruling by the Federal Administrative Court still provides for an important standard in the asylum procedure: while authorities or courts may formally reject medical statements if they do not fully comply with the legal requirements, they cannot always disregard such statements completely. Rather, they may be obliged to make further enquiries. Nevertheless, lawyers have also pointed out that the requirements for medical statements have only slightly been loosened by the Federal Administrative Court and it is still difficult to meet these standards in practice.[10] For example, it is often extremely difficult for asylum seekers to get access to an appropriate therapy because of a lack of specialised therapists or because authorities reject applications to take over the costs for therapy (including costs for interpreters). In such cases, it may also prove highly difficult to even find a specialist to submit a medical opinion.[11]
[1] Section 24(1) Asylum Act.
[2] Section 15(3) Asylum Act.
[3] Section 60(7) Residence Act.
[4] BAMF, DA-Asyl (Dienstanweisung Asylverfahren) – Medizinische Untersuchung bei Hinweis auf erlittene Verfolgung oder erlittenen ernsthaften Schaden in der Vergangenheit (Stand 2/19), available at https://bit.ly/3iFnYOF.
[5] BAMF, DA-Asyl (Dienstanweisung Asylverfahren) – Krankheitsbedingte Abschiebungsverbote (Stand 2/19), available in German at: https://bit.ly/3iFnYOF.
[6] Section 60a (2)c of the Residence Act.
[7] Section 60 (7) 2nd sentence of the Residence Act.
[8] Section 60a (2)c 2nd and 3rd sentences of the Residence Act.
[9] Federal Administrative Court, Decision of 11 September 20–7 – 10 C 8.07 – (asyl.net, M12108).
[10] Deutsches Rotes Kreuz und Informationsverbund Asyl und Migration, ed. Krankheit als Abschiebungshindernis. Anforderungen an die Darlegung von Abschiebungshindernissen aufgrund von Krankheit im Asyl- und Aufenthaltsrecht, author: Oda Jentsch, December 2017, 26.
[11] See also BafF, ‘Identifizierung besonderer Schutzbedürftigkeit am Beispiel von Personen mit Traumafolgestörungen. Status quo in den Bundesländern, Modelle und Herausforderungen’, June 2020, Study available in German at https://bit.ly/3GsdrSm.