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 he or she 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 litigation 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’ 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 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) 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 it became clear, some journalist investigations brought to light the fact that only a handful of such medico legal reports were written annually. 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 his or her 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)[5] 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 NGOs such as DCR and Amnesty International, among others. IMMO, founded in 2012, operates independently. It started as a very small organisation that mainly relied on 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. In the last two 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 obligated to try to get the expenses for the examination and the writing of a report reimbursed by the state.[6]
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 medical doctors and psychologists/psychiatrists.
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 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.
Every year, iMMO, issues 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. Some of these reports were delivered long after the interviews 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 that their reports were not relevant. In its landmark judgment of 27 June 2018, the Council of State changed its previous orientation 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. 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 has 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 where 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 had been higher in 2022 compared to previous years. Whether or not it is the question if the state should have initiated its own forensic medical report or not, whether the vulnerable asylum seeker were given the proper care or whether an iMMO report should have been taken into account when dealing with the credibility issues, more and more court decisions appear to be critical towards the policy and practises of the Secretary of State in this domain.
One judgment by the Council of State should be highlighted here. On 7 December 2022, the Council of State ruled in its judgment 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 his/her asylum story in a complete, consistent and coherent manner during the interviews with the IND, the examiner should be able to pinpoint directly on which components of the asylum story the assumed limited ability had its effect. The component rule has been laid down by the Council of State in its landmark ruling from 27 June 2018, as mentioned earlier. Since, both the IND and many lower courts did not accept the view from iMMO that from a medical scientific point of view the component requirement could not be met in a way satisfactory for the IND and the legal courts. Since 2020, you’ve seen a tipping point in case law. More and more courts adopted the view expressed by iMMO, leading to the above-mentioned judgment in which the council of State abandoned the 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.
[1] Article 3.109 Aliens Decree.
[2] 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.
[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://ind.nl/Documents/WI_2016-4.pdf.
[5] See: http://bit.ly/3Lkmyd3/.
[6] Regional Court of 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.
[7] Paragraph C1/4.4.4 Aliens Circular. See Council of State, Decision No 201211436/1, 31 July 2013.
[8] Council of State, Decision No 201607367/1, 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] ABRvS, 7 December 2022, ECLI:NL:RVS:2022:3615.