The Aliens Act does not contain any guidelines for medical examinations. The Migration Agency stated in a legal position that applicants who claim that they have been subject to torture or other ill-treatment amounting to a need for international protection and who present a certificate indicating that he/she has been subjected to such treatment shall, subject to certain exceptions, be further examined at the state’s cost. The Migration Agency has a standard form for medical reports, but not specifically for medico-legal certificates. The latter usually follows the Istanbul Protocol.
The Swedish asylum procedure operates on the principle that any evidence can be admitted in support of an asylum claim. Therefore, the law does not expressly refer to the possibility of a medical certificate in support of the applicant’s statement regarding past persecution or serious harm. As a result of the R.C. v. Sweden ruling of the European Court of Human Rights (ECtHR), however, Sweden has been reminded of the obligation on its authorities to carry out a medical examination if there is an indication from an initial non-expert medical report that the applicant could have been a victim of torture.
The Migration Court of Appeal specified the investigative duty of the migration authorities in a case concerning a Moroccan applicant in September 2014, and confirmed the principles of R.C. v. Sweden. The applicant had a certificate from a general practitioner in his home country indicating injuries from torture.
In such a case, the Migration Agency or the Migration Court is obliged to request an expert medical examination of the person, based on the Istanbul Protocol, and to pay for those costs. The certificate has to be formulated in accordance with the rules of the National Social Welfare Board and be signed by an expert in the field. Medical reports may also be requested and submitted by the asylum seeker or their legal counsel at any stage of the procedure. If the medical report plays an important role in the outcome of the case, then the costs may be reimbursed by the Court or the Migration Agency. In 2012, the Migration Agency published guideline notes drafted by its Legal Unit, outlining when medical reports should be requested by the authority e.g. when there is evidence of torture. These guidelines are still in place. They foresee that where asylum seekers invoke injuries resulting from having been subjected to torture or other egregious treatment on the basis of which international protection can be granted and submit a medical certificate in support, the latter should be paid out of public funds. Exceptions may be made in cases where:
- Injuries are not disputed;
- The Migration Agency intends to grant the applicant refugee status or alternative protection status;
- The applicant’s narrative contains extensive credibility gaps; and
- The situation in their country of origin has changed to such an extent that the previous risks of torture and other egregious treatment on the basis of which international protection can be granted is considered to no longer exist.
It has proven difficult to get general practitioners to write formal certificates and express an opinion on the results of torture since they are aware that they are not specialists. If the Migration Agency finds that further investigation of the physical and/or psychological damage should not be at public expenditure, the applicant should be given reasonable time to submit further investigations at their own expense, according to the Migration Agency’s legal position. This can be done through specialist institutions and through the Swedish Red Cross Treatment Centre for persons affected by war and torture. The Swedish Red Cross has highlighted in a 2014 report the lack of access to proper investigation in situations where an asylum seeker claims he or she has been subject to torture.
As a consequence of the ECtHR ruling in Paposhvili v Belgium, the Migration Agency has issued legal guidance on assessing medical grounds that can come within the scope of Article 3 ECHR. In its latest guidance on the matter, the Agency states that the expulsion of a foreigner suffering from a disease, in combination with the lack of adequate care in the home country, may in very specific cases be considered as inhuman and degrading treatment referred to in Article 3 ECHR.
- The standard of proof is high, it must be shown that the person is at a real risk of being subjected to such treatment. The applicant has the burden of proof that an expulsion leads to a treatment contrary to Article 3 ECHR.
- An overall assessment must be made. Factors that are important in the assessment are the state of health, the availability of adequate and appropriate care in the home country, the cost for the care, social networking and the general situation in the home country.
- If, even after investigation, there are still uncertainties about whether the applicant risks treatment in contravention of Article 3, the state must obtain individual and sufficient guarantees from the receiving state that appropriate treatment will be available to the person in question.
- The risk of being subject to treatment contrary to Article 3 ECHR should be assessed for children in the same way as for adults, taking into account the fact the concerned person is a child.
On 24 September 2020, the UN Committee on the Rights of Persons with Disabilities (CRPD) published its decision in a case litigated by the Swedish Refugee Law Center concerning the expulsion to Iraq of a woman suffering from severe depression. The CRPD considered that the Swedish authorities should have assessed whether the woman would be able to access adequate medical care if removed to Iraq and found that Sweden had failed to fulfil its obligations under Article 15 of the Convention on the Rights of Persons with Disabilities.
 ECtHR, R.C. v. Sweden, Application No 41827/07, 9 June 2010.
Migration Agency, Rättsligt ställningstagande angående medicinska utredningar av åberopade skador (Legal guidance on medical investigations and reported trauma), 5 July 2012, RCI 20/2012, available at: http://bit.ly/1QWNxI6.
 Migration Agency, Rättsligt ställningstagande angående tillämpning av artikel 3 i Europakonventionen då sjukdom åberopas – RS/008/2020, 17 June 2020, available in Swedish at: http://bit.ly/3kv4RrQ.