Author
Every asylum seeker has to sign an agreement at the beginning of the asylum procedure that gives the SEM the right to have access to their medical reports. The asylum seeker is not by law forced to sign, but if they do not, the SEM will claim that the asylum seeker has not complied with the duty to cooperate and therefore loses their right to have the proceeding continued.
According to the law, when filling out the application for asylum, asylum seekers must state any serious health problems of which they are aware and of relevance to the asylum and removal procedures.[1] In practice, this is very problematic as traumatised people are often not aware of their trauma, it is symptomatic that a trauma can show up only after some time, which speaks for the credibility of the disease.[2] Medical problems that are claimed at a later stage or established by another medical specialist may be taken into account in the asylum and removal procedures if they are proven. The provision of prima facie evidence suffices by way of exception if there are excusable grounds for the delay or proof cannot be provided in the case in question for medical reasons. That should be the case for all psychological diseases which can hardly be proven.
Medical care and the establishment of medical facts in the examination of asylum applications remain one of the main issues induced by the acceleration of procedures. They crystallize the tension between, on the one hand, the tight procedural deadlines provided for in the Asylum Act and the processes put in place in federal structures and, on the other hand, an examination of asylum applications based on adequate medical care enabling the medical professionals to make clear and detailed medical diagnoses.
In this respect, case law of the Federal Administrative Court highlights several shortcomings concerning medical care and measures of instruction taken by the authority of first instance on the medical aspects before issuing a decision on removal or transfer to another Dublin State. The Federal Administrative Court particularly points out to the following points: decisions issued in the absence of a medical diagnosis, the difficulty for asylum-seekers in accessing a doctor, the transfers from one federal centre to another during the procedure which result in the interruption of medical follow-up or treatment, the lack of adequate translation during interviews with doctors or medical staff of the centres and finally the difficulty for legal representatives to obtain information or medical reports.[3]
The health concept implemented by the SEM in French-speaking Switzerland prohibits direct contacts between legal representation and health professionals, both inside and outside the federal centres. In 2020, only email contacts were allowed between the infirmary of the centres. This situation has gotten even worse in 2021 – and did not improve in 2022 – as the legal representatives were forbidden to contact the infirmary, except for organisational requests such as an appointment date. Otherwise, they can only communicate through the SEM.[4] In an important judgment of 2019, the Federal Administrative Court stated that the unjustified lack of transmission of medical information represents a violation of the right to a lawful hearing.[5]
From the perspective of organisations such as the Swiss Refugee Council, direct and effective communication between medical staff and legal representation is necessary to ensure adequate care and a complete establishment of the relevant facts, especially in the context of an accelerated procedure.
In principle, asylum seekers do not have to pay for the medical examination. Moreover, medical treatment – if necessary – will be paid for by the basic health insurance every asylum seeker is provided with. However, medical examinations for the purpose of a detailed medical report to be used in the asylum procedure are rarely requested by the authorities. In the majority of federal centres the SEM has concluded partnerships with doctors or medical centres to which asylum seekers are redirected in case of need. In the eventuality that an asylum seeker consults a doctor who is not included in the SEM concept, the costs incurred are not covered by the basic health insurance. In light of the current breaches as reflected in the recent FAC’s case law as described above, there is in some cases a real difficulty in asserting health problems in time in the first instance procedure.
Another problem is that, in a large number of cases, medical reports are taken into account mainly in order to assess whether the removal order is legal and reasonable, and are not adequately considered for the assessment of the person’s credibility.
The medical reports are unfortunately infrequently based on the methodology laid down in the Istanbul Protocol. In the view of NGOs, there is need for improvement in this regard.[6]
[1] Article 26-bis AsylA.
[2] On the obligation of the SEM to always assess the applicant’s medical situation when there are concrete signs that he or she may suffer from serious diseases such as PTSD that, even though the applicant does not specifically mention any kind of health issues, see e.g. Federal Administrative Court, Decision D-6057/2017, 15 May 2018, para 5.4.
[3] See for instance : Swiss Refugee Council, L’accélération ne doit pas prétériter l’équité et la qualité, 4 February 2020, available (in French) at: http://bit.ly/3j7aD6T; Vivre Ensemble, Procédures accélérées et accès aux soins. L’équation impossible ? | Prise en considération de l’état de santé : des procédures bâclées, June 2019, available (in French) at: https ://bit.ly/32djGq4.
[4] Federal Administrative Court, Decision D-2044/2022,3 August 2022 (available here: https://bit.ly/3C8vZXQ) confirms that this worrying practice is still ongoing. In this case, the Federal Administrative Court had already rejected the applicant’s first appeal (which concerned the execution of a Dublin transfer to Greece). At the basis of the Tribunal’s reasoning was the fact that, according to the information available at the time, there was no medical indication that the applicant was suffering from any acute illness, and that, despite his diagnosed depression, he was overall in good shape. A revision request was later lodged against this first judgment, because the legal representatives was able to show that he had been denied access to the applicant’s medical files at the SEM’s request. Therefore, the fact that the applicant was actually under psychiatric treatment and at high medical risk hadn’t been properly disclosed to the Court at the time of the first decision. Decision D-2044/2022 accepts the applicant’s request to revise the case, and sends the file back to SEM for new assessment of the facts. See also, broadly on the assessment of medical issues during the asylum procedure: E-1413/2021, 8 April 2021; D-1008/2020, 26 July 2021; D-6591/2020, 13 January 2021.
[5] For a more detailed description of the medical concept see in particular: Federal Administrative Court, Decision D-1954/2019, 13 May 2019; E-3262/2019, 4 July 2019.
[6] For more information, see the alternative Report submitted in June 2023 by the Swiss NGOs, available here in English: https://shorturl.at/swzP3. The Report was submitted previous to the visit of the CAT committee to Switzerland, which took place in July 2023.