Use of medical reports

Switzerland

Country Report: Use of medical reports Last updated: 14/05/21

Author

Swiss Refugee Council Visit Website

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 his or her medical reports. The asylum seeker is not forced to sign, but if he or she does not, the SEM will claim that the asylum seeker has not complied with the duty to cooperate and therefore loses his or her right to have the proceeding continued.

According to the law, asylum seekers must state any serious health problems of relevance to the asylum and removal procedures of which they were aware when filing the application for asylum.[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.

Under the new asylum procedure in force throughout Switzerland since March 2019, medical care and the establishment of medical facts in the examination of asylum applications, appear to be one of the main issues induced by the acceleration of procedures. They crystallize the tension between, on the one hand, the new 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, the recent 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] In a recent case concerning an Iraqi family with refugee status in Greece, the Federal Administrative Court (FAC) acknowledged that the SEM did not sufficiently investigate the mother’s state of health. The claimant had claimed psychological problems at the Dublin hearing and her legal representative had asked the SEM to investigate her state of health. According to the SEM, the doctor operating inside the Federal Center did not consider a referral to a specialist necessary and the appellant did not explain her problems in the infirmary. The FAC notes that this argument does not take into account the fact that this lack was due to the absence of a translation. At the time of the medical examination, there had only been one translation by a member of staff at the centre with limited knowledge of the Kurdish language. The case is now back to SEM for re-assessment of the facts.[4]

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. Thus, only email contacts are allowed between the infirmary of the centres and the legal representatives and the latter do not have the possibility to directly contact the health professionals located outside the centres. In one important judgment last year, 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, the asylum seekers do not have to pay for the medical examination. Moreover, medical treatment – if necessary – will be paid 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.

[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: OSAR, L’accélération ne doit pas prétériter l’équité et la qualité, 4 February 2020, available (in French) at: https://bit.ly/2SJPiAv; 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-2676/2019, 19.08.2020, available at: https://tinyurl.com/yd6ca357

[5]  For a more detailed description of the medical concept see in particular: Federal Administrative Court, Decision D-1954/2019, 13 May 2019, available at: https://bit.ly/2wE1vxU; E-3262/2019, 4 July 2019, available at: https://bit.ly/2TONtkZ.

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