Every asylum seeker under the General asylum procedure (“Track 4”) is invited to be medically examined by FMMU (Forensic Medical Company Utrecht – Forensisch Medische Maatschappij Utrecht) prior to the interviews with the IND. This in order to assess whether he or she can be interviewed with or without special precautions (see Identification) and to see if there are limitations in ones 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 a asylum request. Besides that, the IND has, since the implementation date of the recast Asylum Procedures Directive in 2015, the legal obligation to medically examine asylum seekers in connection to their reasons for requesting protection. Although the obligation to conduct a medical examination is now explicitly incorporated in Dutch law and policy, it is defendable to claim the Dutch authorities already had this obligation due to rulings of the ECtHR, and/or the UN Committee Against Torture (CAT).
National legislation guarantees the possibility to use a medical examination as supportive evidence. Dutch law and policy provide that a 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) or the Dutch Institute for Forensic Psychiatry and Psychology (Nederlands Instituut voor Forensische Psychiatrie en Psychologie, NIFP), to conduct the examination. The IND bears the costs of this examination. Annually, approximately between 15-20 times, these organisations are asked to perform establish a medico legal report. If the asylum seeker is of the opinion that an examination has to be conducted, but the IND disagrees with this view, the asylum seeker can proceed but on his or her own initiative and costs. The main question that needs to be answered in such a medico legal report is how likely it is that the physical scars or the psychological complaints stem from the asylum story given by the asylum seeker?
An NGO, called iMMO (Institute for Human Rights and Medical Assessment (instituut voor Mensenrechten en Medisch Onderzoek,) has the resources and specific expertise to medically examine asylum seekers (physically and psychologically) at their request. iMMO is not funded by the government and operates independently. Besides having a few staff members, iMMO uses free lance professionals – especially physicians and psychologists – who have the required knowledge and expertise, who commit 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. These professionals perform Medical Forensic Medical Investigations on a voluntary basis and do not charge the asylum seeker, although the lawyer of the asylum seeker is obligated to try to get the expenses reimbursed by the state. The authority of iMMO is ‘codified’ in the Aliens Circular and its authority as being an expert in its field has been accepted by the Council of State. What makes iMMO unique is its working method. Medico legal reports are drawn up as a combined effort by medical doctors on the one hand and psychologists/psychiatrists on the other.
Besides forensic medical assessments iMMO offers advice and consultation to professionals having questions regarding medical aspects of (amongst other) the asylum procedure. iMMO also provides training and education, 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 of ones physical and psychological signs and symptoms and assesses the correlation of these with the asylum seekers own account thereby using the qualifications of the Istanbul Protocol. iMMO in its report also reaches a conclusion whether ones physical and psychological well being interfered with the ability of the asylum seeker to tell his/her story in a complete, consistent and coherent manner in the past and in the present.
Every year, iMMO, issues around 100 Forensic Medical Reports. In 2020 this number decreased significantly due to the Corona limitations. However, these reports are usually delivered long after the interviews have 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 and that their reports were not relevant. In its main judgment of 27 June 2018, the Council of State changed its opinion and ruled that the iMMO reports could be relevant when the assessment/report is based on medical documents and medical information which were issued by the time the interviews took place.
In this regard, one of the main legal questions over the years has been whether the IND finds it relevant to conduct a medical examination by itself, or not, was justified under Article 18 of the recast Asylum Procedures Directive. 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:
- Whether a ‘positive’ 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 FMMU medical advice ‘to hear and to decide’; (b) the reports of the interviews; and (c) other medical documents.
Until 2016, the Dutch Government did not adopt a clear vision on the implementation of the Istanbul Protocol. In the past, certain members of the government stated that the practice of the Dutch asylum system was in accordance with this Protocol, but without being specific 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. This publication has been an inspiration for the national and European policy makers in asylum-related affairs. 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.
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?
- 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?
Article 3.109 Aliens Decree.
For example: ECtHR, R.C. v. Sweden, Application No 41827/07, Judgment of 9 March 2010 and ECtHR, R.J. v France, Application No. 10466/11, Judgment of 19 September 2013.
Article 3.109e Aliens Decree.
Regional Court The Hague, Decision No 14/3855, 11 March 2014 ruled that, as a provisional measure, the IND had to reimburse the expenses of this iMMO report. See also Regional Court Haarlem, Decision No 14/1945, 6 February 2015.
Paragraph C1/4.4.4 Aliens Circular. See Council of State, Decision No 201211436/1, 31 July 2013.
Council of State, Decision No 201607367/1, 27 June 2018, available in Dutch at: https://bit.ly/2TxB2ZB.
Work Instruction 2016/4 refers to the Istanbul Protocol.
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.
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.