Author
Every asylum seeker under the general asylum procedure (“Track 4”) is invited by the IND to be seen by MediFirst prior to the interviews with the IND. This in order to assess whether they can be interviewed with or without special precautions (see Identification)[1] and to see if there are limitations in one person’s ability to give a full, coherent and consistent account of ones asylum story that needs to be taken into account when hearing an asylum seeker and when deciding on an asylum request. Besides that, the IND has, since the implementation date of the recast Asylum Procedures Directive in 2015, the legal obligation under article 18 (1) to medically examine asylum seekers in connection to their reasons for requesting protection if they consider it ‘relevant’ for the decision making process. Obviously, the qualification of its relevancy has been subject to many litigations whereas the asylum seeker claims that a forensic medical examination by the government was ‘relevant’, and the government argues that it was not relevant because the non-credibility of the asylum story could be based on other factors. Although the obligation to conduct a medical examination is now explicitly incorporated in Dutch law and policy, it is legitimate to claim the Dutch authorities already had this obligation due to rulings of the ECtHR,[2] and/or the UN Committee Against Torture (CAT).
According to Paragraph C1/4.4.4 of the Aliens Circular, the following criteria are taken into consideration by the IND when making this assessment under article 18(1) of the directive:
- Whether a ‘positive’ medical examination can in any way lead to an asylum permit;
- The explanations of the asylum seeker on the presence of significant physical and/or psychological traces;
- Submitted medical documents in which reference is made to significant physical and/or psychological traces;
- The presence of other evidence in support of the proposition that return to the country of origin would lead to persecution or serious harm;
- The explanations of the asylum seeker on the cause of physical and/or psychological traces in relation to public available information about the country of origin;
- Indications of the presence of scars, physical complaints and/or psychological symptoms coming from: (a) the MediFirst medical advice ‘to hear and to decide’; (b) the reports of the interviews; and (c) other medical documents.
So, national legislation guarantees the possibility to use a (forensic) medical report as supportive evidence.[3] That had not always been the case. Till around 2005 – 2010 the general legal perception in the Netherlands was that medical supportive evidence only had a very limited role to play in the decision making process, due to the fact that the outcome of such supporting evidence could not give a 100% certain answer about the who, when, why and where questions that could be asked.
As written above, the Dutch law and policy provides that a forensic medical examination has to be done but only if the IND finds this relevant for the outcome of the examination of the asylum application. If this is the case, the IND asks an independent third party, namely the Dutch Forensic Institute (Nederlands Forensisch Instituut, NFI) and/or the Dutch Institute for Forensic Psychiatry and Psychology (Nederlands Instituut voor Forensische Psychiatrie en Psychologie, NIFP), to conduct the examination.[4] The IND bears the costs of this examination. Previous AIDA reports indicated that annually, approximately between 15-20 times, these organisations were asked by the State to perform a medical examination and to establish a medico-legal report. In 2022 journalist investigations brought to light the fact that only a handful of such medico legal reports were written annually.[5] That leads to the conclusion that the Dutch government is not fully fulfilling its obligation under article 18(1) of the recast Asylum Procedures Directive.
If the asylum seeker is of the opinion that a forensic medical examination needs to be conducted, without the IND supporting this view, the asylum seeker can according to article 18(2) from the same Directive, seek one on their own initiative and costs. The objective of such medico legal report is to establish the likelihood that the physical effects or psychological complaints reported by the asylum seeker actually stem from the facts as detailed in their asylum claim. Another objective can be to examine whether the physical and psychological situation of the asylum seeker might have affected a persons’ ability to detail their asylum claim in a complete, consistent and coherent manner in front of the IND.
An NGO, called iMMO (Institute for Human Rights and Medical Assessment (instituut voor Mensenrechten en Medisch Onderzoek)[6] has the specific expertise to medically examine asylum seekers (physically and psychologically) at their request, resulting in a forensic medico-legal report.iMMO is not funded by the government, but by other NGO’s such as the DCR and Amnesty International, among several others. IMMO was founded in 2012 and operates independently. It started as a very small organisation that mainly relied on (former) professionals – especially physicians and psychologists – who have the required knowledge and expertise, who committed themselves on a voluntary basis and who are not bound to IMMO by an employment contract. These assessors are trained by iMMO and perform assessments working independently within the framework of their professional responsibility. In the last few years, the balance between paid professional staff and unpaid professional volunteers shifted towards having more paid staff. Both the staff and the volunteers from iMMO perform medical forensic examinations They do not charge the asylum seeker or their legal representatives, although the legal representative of the asylum seeker is, according to the rules set by iMMO, obligated to try to get the expenses for the examination and the writing of a report reimbursed by the state.
IMMO’s role is ‘codified’ in the Aliens Circular and the Council of State has accepted its authority as being an expert in its field.[7] What makes iMMO unique is its working method. Medico legal reports are realised as a result of the combined effort of both medical doctors and psychologists/psychiatrists.
Besides forensic medical assessments, iMMO offers advice and consultation to professionals having questions regarding, amongst others,medical aspects of the asylum procedure. IMMO also provides training and education for the IND, the judiciary, asylum lawyers and DCR, e.g. with regard to the early recognition of victims of torture or inhumane treatment. IMMO participates in an international community of institutions specialized in the reception, assessment and treatment of victims of torture and inhumane treatment.
IMMO conducts a lengthy and thorough examination on the applicants’ physical and psychological signs and symptoms and assesses the correlation of these with the asylum seekers own account, using the qualifications of the Istanbul Protocol. In its report, iMMO also comments on whether the physical and psychological situation of the asylum seeker might have affected their ability to tell his/her story in a complete, consistent and coherent manner, both in the past and in the present.
From the start in 2012, iMMO, issued around 100 Forensic Medical Reports. In 2020, this number decreased significantly due to the Corona limitations. In 2020 and in 2021, iMMO conducted around 55 medical examinations a year, and around 50 in 2022. In 2023, this number increased to approximately 70 reports per year. Some of these reports were delivered long after the interviews with the IND had taken place, especially in the case of repeated asylum claims. Because of this time-lapse, the Council of State first considered that iMMO was not able to conduct a proper assessment years later and concluded that their reports were not relevant. In its landmark judgment of 27 June 2018, the Council of State changed its previous position and ruled that the iMMO reports could be relevant when assessing the question whether or not physical or psychological limitations were in place in the past, preventing the applicant from telling a coherent, complete and consistent asylum story, when the assessment/report is based on medical documents and medical information which were issued by the time the interviews took place.[8]
From 2016, the Dutch Government did express a clear vision on the implementation of the Istanbul Protocol.[9] In the past, certain members of the government stated that the practice of the Dutch asylum system was in accordance with this Protocol, without specifying on which points. Amnesty International, the Dutch Council for Refugees and Pharos started a project in 2006 to promote the implementation of the Istanbul Protocol in the Dutch legislation, which resulted, inter alia, in a major publication on the issue.[10] This publication has been an inspiration for the national and European policy makers in asylum-related affairs and still holds value today. One of the recommendations from the publication was to provide more awareness to vulnerable groups of asylum seekers prior to the processing of their asylum applications, which has been an important issue in the recast proposals of the Reception Conditions Directive and Asylum Procedures Directive. Another recommendation was to use medical evidence as supporting evidence in asylum procedures, which has been addressed by Article 18 of the recast Asylum Procedures Directive.[11]
The main legal questions at this moment concerning the value of medico legal reports in the Dutch asylum procedure are:
- How does such a report need to be weighed and addressed by the State?
- When is there an obligation for the State to start and conduct such a medical investigation or a follow up medical investigation?
- What exactly is the legal meaning of the word ‘relevant’ (concerning the question for the State whether or not starting a medical investigation by itself)
- Does a State have to wait with deciding an asylum request upon the completion of a medical report by a third party (for example by iMMO)?
- Can a medical legal report make an incredible asylum story become credible?
- When should an asylum seeker be given the benefit of the doubt?
- The State assumes that when the possibility for the applicant to give full, coherent, consistent and complete statements is limited by assessed limitations, a medico legal report should be able to distinguish to what elements of the story the limitations are in place and to what elements they are not. Does the medical scientific community accept this assumption by the State?
- How does national case law set by the national courts and the national immigration services relates to the international case law as laid out by the ECtHR and the CAT?
Outcomes of cases evaluated by lower courts tacking these questions have varied significantly, mostly
based on the story of the individual asylum seeker and legal arguments brought forward by their legal representative. Additionally, the highest judicial body, the Council of State seldomly issues fully motivated verdicts and even the motivated verdicts can be interpret differently.
In 2022, the DCR analysed around 100 new public decisions by lower courts and the Council of State dealing with medical support evidence, iMMO and MediFirst. Around 90 of them were decisions by lower courts, while 6 were issued by the Council of State. 2022 also saw 2 complaints presented before the European Courts of Human Rights and the Anti-Torture Committee to be deemed inadmissible (without motivation).In around 60 out of 90 decisions by lower courts, the foreign national successfully appealed the negative decision from the IND. The success rate to appeal a negative IND decision was higher in 2022 compared to previous years. More and more court decisions appear to be critical towards the policy and practises of the Secretary of State in this domain, questioning whether the State should have initiated its own forensic medical report, whether vulnerable asylum seekers were given proper care, or whether the iMMO report should have been taken into account when dealing with credibility issues.
One judgment by the Council of State should be highlighted on this matter. On 7 December 2022, the Council of State ruled that the so called ‘component requirement’ was no longer tenable.[12] The ‘component requirement’ means that if in a forensic medico-legal report the examiner (for instance iMMO) has come to the conclusion that the physical and psychological situation of the asylum seeker might have affected (heavily) their ability to tell their asylum story in a complete, consistent and coherent manner during the interviews with the IND, the examiner should be able to pinpoint directly which components of the asylum story the assumed limited ability affects. The component rule had been laid down by the Council of State in its landmark ruling from 27 June 2018, as mentioned earlier. In 2018 and 2019, both the IND and many lower courts rejected iMMO’s view that from a medical scientific point of view, the component requirement cannot be met in a way that would be satisfactory for the IND and the legal courts. Since 2020, the balance has shifted in caselaw. More and more courts have adopted the view expressed by iMMO, leading to the above-mentioned judgment in which the Council of State abandoned its view adopted in 2018. This judgment is an important one, strengthening the position and value of medico-legal reports in the Dutch asylum procedure. It is our assumption that in 2023 many decisions by the Secretary of State and lower courts will be overturned due to this ruling.
Another relevant ruling is that of 7 November 2023[13] in which the Council of State upheld the appeal of an asylum seeker against a negative ruling of a lower court. The Council of State agreed that the State Secretary had not provided proper reasons for deciding not to start its own medico legal examination by NFI/NIFP. It ruled that during the whole asylum procedure, the State Secretary had missed several signs of physical and psychological complaints by the asylum seeker brought forward during the interviews and in the asylum seeker handing over medical files. Therefore, it could not have ruled that the asylum story lacked credibility without any further medical examination.
Moreover, the ruling of the Council of State from 13 December 2023[14] is also important. In a court procedure that spanned over many years, the Council of State ruled that the conclusion by iMMO that an enormous feeling of shame, caused the asylum seeker’s inability to speak earlier in the asylum procedure about sexual violence and torture, should be taken into account by the IND. The IND did not believe the torture and sexual abuse story due to the fact that the asylum seeker was able to talk about it only later in the procedure. The IND wrongfully neglected to take into account the medico legal report by iMMO that was introduced into the procedure.
In 2023 the DCR has another survey of the publicly available case law from the year 2023 on medical support evidence, medico legal reports, iMMO and MediFirst cases. What stood out the most is that the total number of cases dealing with the above mentioned issues was much lower compared to the previous years (55 cases in 2023 versus around a 100 cases in 2022). What also stood out was the relatively high number of cases from the Council of State (13 out of 55). Most of these referenced and reaffirmed the 7 December 2022 decision in which the ‘component’ requirement’ was abandoned. Moreover, in cases dealing specifically with iMMO or with MediFirst issues, an overwhelming majority of lower court decisions (28 out of 41) ruled in favor of the asylum seeker. Therefore it is safe to say that, according to numbers by iMMO, in over 2/3 of all the cases in which an iMMO-medical legal report is introduced, this will eventually lead to some form of residence granted to the asylum seeker by the IND.
[1] Article 3.109 Aliens Decree.
[2] For example: ECtHR, R.C. v. Sweden, Application No 41827/07, Judgment of 9 March 2010, available at: https://bit.ly/49qQDR6 and ECtHR, R.J. v France, Application No. 10466/11, Judgment of 19 September 2013, available in French at: https://bit.ly/49qQHjO.
[3] Article 3.109e Aliens Decree.
[4] IND, Work Instruction 2016/4 Forensic medical examination for supporting evidence, 1 July 2016, available in Dutch at: https://bit.ly/3OYxhej.
[5] ARGOS, 1 October 2022, ’IND rarely researches refugee seeker’s trauma’, available in Dutch at: https://bit.ly/3LKV4w0.
[6] See: http://bit.ly/3Lkmyd3/.
[7] Paragraph C1/4.4.4 Aliens Circular. See Council of State, ECLI:NL:RVS:2013:621, 31 July 2013, available in Dutch at: https://bit.ly/3SCp3tp.
[8] Council of State, ECLI:NL:RVS:2018:2085, 27 June 2018, available in Dutch at: https://bit.ly/2TxB2ZB.
[9] Work Instruction 2016/4 refers to the Istanbul Protocol.
[10] René Bruin, Marcelle Reneman and Evert Bloemen, ‘Care Full, Medico-legal reports and the Istanbul Protocol in asylum procedures’ (2008) 21:1 Journal of Refugee Studies, 134.
[11] No explicit reference is made, however, in the explanatory notes on the implementation of Article 18 recast Asylum Procedures Directive: Tweede Kamer, Explanatory notes on the implementation of the recast Asylum Procedures Directive, Vergaderjaar 34 088, number. 3, 2014-2015.
[12] Council of State, ECLI:NL:RVS:2022:3615, 7 December 2022, available in Dutch at: https://bit.ly/3w8nKLg.
[13] Council of State, 7 November 2023, ECLI:NL:RVS:2023:4098, available in Dutch at: https://bit.ly/48rcSpj.
[14] Council of State, ECLI:NL:RVS:2023:4620, 13 December 2023, available in Dutch at: https://bit.ly/499eNj8.