Every asylum seeker under the regular procedure (“Track 4”) is invited to be medically examined by FMMU (Forensic Medical Company Utrecht – Forensisch Medische Maatschappij Utrecht) in order to assess whether he or she can be interviewed with or without special precautions (see Identification). Besides that, the IND has, since the implementation date of the recast Asylum Procedures Directive, 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.
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 if the IND finds this necessary for 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. If the asylum seeker is of the opinion that an examination has to be conducted, but the IND disagrees, the asylum seeker can proceed but on his or her own initiative and costs.
An NGO, called Institute for Human Rights and Medical Assessment (instituut voor Mensenrechten en Medisch Onderzoek, iMMO) has the resources and specific expertise to medically examine asylum seekers (physically and psychologically) at their request. This NGO is not funded by the State and operates independently. Besides having few staff members, iMMO is working with doctors, psychologists and psychiatrists who 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 has been accepted by the Council of State.
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.
iMMO also acts as a counter expert by identifying whether an asylum seeker can be interviewed during the procedure due to physical or psychological circumstances. Every year, iMMO, issues around 100 Forensic Medical Reports. 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 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 which were issued by the time the interviews took place.
In this regard, the main question is whether the IND finds it is necessary to conduct an examination. 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.
Article 3.109 Aliens Decree.
ECtHR, R.C. v. Sweden, Application No 41827/07, Judgment of 9 March 2010.
Article 3.109e Aliens Decree.
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.
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.