Use of medical reports
Medical evidence may be submitted but the initiative for obtaining a report comes from the applicant or their lawyer. There is no legal provision which requires the provision of a report for the purposes of the asylum claim.
Asylum Policy Guidance on medical evidence provides for the possibility of delaying an asylum decision pending receipt of a medical report from the NGOs Helen Bamber Foundation (HBF) or Freedom from Torture (FTT). FFT and the Helen Bamber Foundation are the most established organisations which prepare medico-legal reports, and their work is widely respected. Referral to obtain an appointment for a Medico-Legal report from FFT can normally only be made by a lawyer, and referrals may be accepted if FFT considers that a medico-legal report has the potential to make a material difference to the outcome of the claim. If a report from FFT or the Helen Bamber Foundation is received after a refusal of asylum the case must be reviewed.
Home Office caseworkers make this decision and should act reasonably. They are required to take into account whether the applicant declared a medical condition at the screening interview, whether there is written evidence of an appointment with a medical professional, and the length of time the applicant has been in the country and so had the opportunity to consult a medical practitioner. The guidance advises that postponements should be fixed, and preferably only for five to ten days, and that the asylum interview should not be postponed in order to obtain a medical report.
Where a solicitor is funded by legal aid they can request authority from the Legal Aid Agency for payment for medical reports, and this may be granted depending on the relevance and importance of the report to the claim. The solicitor has authority to spend £400 (approx. €462) on an expert report without involving the Legal Aid Agency, but this is often not adequate to fund a full expert report.
Where the asylum seeker has an appointment with the NGO Freedom from Torture (FFT) the effect is different as the decision must be deferred until the report is available unless the caseworker is anyway considering granting leave to remain.
The Detention Centre rules require that a medical examination should be conducted within 24 hours of arrival in a detention centre, but this must not be used in determining the asylum claim; its purpose is to ascertain fitness for detention.
Case law requires that medical reports are taken into account in deciding the applicant's credibility. The courts have also cautioned against tribunal judges reaching their own diagnoses which depart from the medical evidence and discounting psychological evidence on the basis that it is founded in part on what applicant says. Recommendations from FFT state best practice, which includes that evidence should be considered as a whole, including expert medical evidence, and a conclusion on the overall credibility of a claim not reached before consideration of an expert medical report. FFT also recommends that due consideration must be given to the medical expert’s opinion on the degree of consistency between the clinical findings and the account of torture. The Upper Tribunal endorses this but also says that the clinician’s judgement is not to be equated to a judgment made by a Tribunal. Despite the availability of best practice guidance and the judgments of the higher courts, this guidance is not consistently followed. Examples in case law show that medical reports are still sometimes downgraded or discounted on the basis that the decision maker does not believe the applicant, rather than using the report as evidence which contributes to assessing the applicant's case. Research by Freedom from Torture in 2016 showed evidence of errors by decision makers in deciding claims where there was a FFT medico-legal report. Errors identified included failing to apply the correct legal test and failing to recognise the expertise of those who prepared the reports. This remains a concern and is listed amongst concerns raised in a 2019 report, named ‘Lessons not Learned; The failures of asylum decision-making in the UK’, relating to the standard of proof in asylum decision making published by FTT and seven other NGOs.
Medical reports may be prepared based on the Istanbul Protocol, and this is regarded as best practice and is standard for experienced practitioners.
The long running case of KV (Sri Lanka) progressed to the Supreme Court and judgment was handed down in March 2019. The case concerned the question of the extent to which a medical expert could comment on the likelihood of torture being self-inflicted by proxy, that is, by another person at his invitation. Whilst the Supreme Court remits the case to the Upper Tribunal to reconsider, it invites the Upper Tribunal to note that very considerable weight should be given to the fact that injuries which are self-inflicted by proxy are likely to be extremely rare.
Home Office, Asylum Policy Instruction, Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico Legal Report Service, July 2015, para 2.4. (This is still applicable).
Freedom from Torture, Make a referral for therapy and practical help (Referrals to The Medical Foundation Medico Legal Report Service), available at: https://bit.ly/37gvzMA.
Asylum Policy Instruction (non-Medical Foundation cases).
Asylum Policy Instruction Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service, July 2015.
Rule 34 Detention Centre Rules.
Jo Pettit, Body of Evidence – Treatment of Medico-Legal Reports for Survivors of Torture in the UK Asylum Tribunal, 2011, Freedom from Torture.
See e.g. High Court, R (Kakar) v Secretary of State for the Home Department  EWHC 1479 (Admin), 22 May 2015.
FFT, Lessons not Learned; The failures of asylum decision-making in the UK, September 2019, available at: https://bit.ly/36ee2UH.
Office of the United Nations High Commissioner for Human Rights, Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment, ‘Istanbul Protocol’, 2004, available at: http://bit.ly/1DVAApu.