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 2021 the Migration Agency published guideline notes drafted by its Legal Unit regarding medical investigations of injuries. These guidelines are still in place. They foresee that where an asylum seeker has suffered injuries resulting from having been subjected to torture or other egregious treatment and submit a medical certificate in support, further examination should be granted at the state’s expense. 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 issues; 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.
In September 2021, the Swedish Red Cross published their alternative report to the United Nations Committee Against Torture. The organisation reiterated their concerns highlighted in the above-mentioned report from 2015. During 2021, the Swedish Red Cross initiated work to support the Migration Agency with training on the effects of torture and trauma.
In December 2021, guidance for healthcare professionals meeting patients with torture experiences was published.
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.
As mentioned in the previous AIDA report, 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.
On 6 September 2021, the UN Committee on the Rights of Persons with Disabilities (CRPD) published a decision in another case litigated by the Swedish Refugee Law Center. This time, too, the criticism concerned Sweden’s assessment of mental illness in the asylum process. The case concerned a man from Afghanistan with severe mental illness. The CRPD did not consider that Sweden had sufficiently investigated whether the man could actually access care in Afghanistan. Another important part of the criticism that the CRPD makes against Sweden concerned the assessment of the seriousness of the man’s health condition. The Committee considered that the Swedish authorities’ assessment that the risk of suicide was linked to the asylum process had taken too much precedence in the Swedish process. The CRPD 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.
 Swedish Red Cross, Alternative Report to the United Nations Committee Against Torture regarding Sweden’s eighth periodic report submitted by Sweden under article 19 of the Convention pursuant to the optional reporting procedure, due in 2018, available at: https://bit.ly/3CMMN5K
 Transkulturellt Centrum i region Stockholm och Kunskapscentrum för migration och hälsa i region Skåne, Identifiera, utreda och behandla tortyrskador Handledning för vårdpersonal som möter patienter med tortyrerfarenheter, December 2021, available at: https://bit.ly/3CNlIzo
 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.