Use of medical reports

Sweden

Country Report: Use of medical reports Last updated: 30/11/20

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The Aliens Act does not contain any guidelines for medical examinations and there are no routine or standard procedures to refer victims of trauma to a medical examination. The matter is under investigation by the Migration Agency but so far there are no institutionalised procedures. However, the Migration Agency does have a standard form for medical reports,[1] but not specifically for medico-legal certificates. The latter usually follow 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),[2] 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.[3]

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 then 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.[4] These guidelines state 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:

  1. Injuries are not disputed;
  2. The Migration Agency intends to grant the applicant refugee status or alternative protection status;
  3. The applicant's narrative contains extensive credibility gaps; and
  4. 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.

There have been some instances in 2016 of applicants who have themselves or through the lawyer stated that they are victims of torture but a full investigation was denied, because in the R.C. case a non-specialist medical report had been handed in, which should have signalled to the authorities that a deeper investigation needed to be made. However, since no such certificate was handed in, the Agency refused to instigate an expert examination. 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. 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.[5]

As a consequence of the ECtHR ruling in Paposhvili v Belgium,[6] in the European Court of Human Rights the Migration Agency issued legal guidance on 11 October 2018 on assessing medical grounds that can come within the scope of Article 3 ECHR. 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.
  • Factors that are important in the assessment are the state of health, the availability of adequate and appropriate home care, social networking and the general situation in the home country. An overall assessment must be made.
  • 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.

There is currently a case pending against Sweden in Strasbourg concerning this issue.[7]



[1] Migration Agency, Utlåtande från läkare vid prövning av hälsotillstånd i ärenden om uppehållstillstånd eller verkställighetshinder, available in Swedish at: https://bit.ly/2GCAwFm.

[2] ECtHR, R.C. v. Sweden, Application No 41827/07, 9 June 2010.

[3]Migration Court of Appeal, MIG 2014:21, UM3739-14, 23 September 2014, available at: http://bit.ly/2jPcQ5f.

[4] 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.

[5]  Swedish Red Cross, Tortyrskadori asylprocessen under lupp. Hur värderas tortyrskador i den svenska asylprocessen, 2014, available at: http://bit.ly/1GjCgNH.

[6] ECtHR, Paposhvili v. Belgium, Application No 41738/10, Judgment of 13 December 2016, EDAL, available at: https://bit.ly/2UR2eXM.

[7] ECtHR, Obinna Ibe v. Sweden, Application No 50586/18, Communicated 13 March 2019. The case concerns the deportation of a Nigerian man after the rejection of his asylum application in Sweden. The applicant suffers from chronic kidney failure and is in need of dialysis. He claims that he would be exposed to Article 3 risk upon return to Nigeria, as he would not be able to afford access to adequate medical care there.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX – I Transposition of the CEAS in national legislation