Medical Evidence in Asylum Claims
The Home Office has issued new guidance to Home Office officials on how to consider and assess medical evidence in asylum claims. In this article our immigration solicitors look at how the Home Office guidance recommends caseworkers deal with medical evidence in asylum claims.
UK Online and London Based Asylum and Immigration Solicitors
Speed or medical evidence in asylum claims
The government is under pressure to process and determine asylum claims in a timely fashion so they don’t get more political flack and asylum seekers aren’t left waiting for months, or even years, for an asylum decision. Speed in the decision-making process can compromise the quality of a decision, especially if the desire is to achieve quicker results at less cost to the public purse.
If you are an asylum seeker making an asylum claim it is best to get expert legal advice on whether your asylum claim needs to be supported by medical evidence and , if so, the best medical evidence to obtain.
For example, you may think that your scars mean you don’t need a doctor’s report because your injuries are self-evident but that isn’t necessarily how a Home Office official assessing your asylum claim sees it. Alternatively, you may think that a quick letter from a general practitioner will suffice or that your medical evidence should be confined to physical injuries rather than the impact of any torture or abuse on your mental health.
An immigration solicitor will talk you through your best options on how to present your asylum claim and the evidence you should produce in support. Asylum solicitors say it is far better to present a really excellent well-presented asylum claim, supported by the right evidence, rather than rush a claim and not succeed in your asylum claim and then have to try to appealthe decision to refuse asylum.
When it comes to medical evidence in asylum claims the Home Office guidance gives deadlines for evidence to be obtained. That’s why it is important to get expert legal advice as soon as you can so you can either get the right medical evidence or request a time extension so you can get a detailed medico-legal report to support your asylum claim.
Talking about your asylum claim
An asylum claim doesn’t just rest on the medical evidence you submit in support of your asylum claim. In your application and asylum interview it is important to detail your experiences and any torture or serious harm suffered and the impact on your physical and mental health. Whilst it is distressing to recount details and provide highly personal information it is important to do so as your account of your experiences, and the impact on you, can be compelling, especially when supported by appropriate medical evidence.
Home Office assessment of asylum claims
Paragraph 339J of the immigration rules says that when a Home Office official assesses an asylum or human rights claim their assessment must be conducted on an individual basis, using objectivity and impartiality.
The Home Office official should take the following factors into account:
- Statements and documentation presented by the claimant including information on whether the asylum seeker or claimant has been or may be subject to persecution or serious harm.
- The individual and personal circumstances of the claimant including their background, age, gender and other relevant circumstances.
Worried about lack of medical evidence in an asylum claim?
If you are worried about a lack of medical evidence of physical torture or evidence of a diagnosed severe mental health condition then that is understandable as many asylum seekers think that only with overwhelming medical or other evidence will their asylum claim succeed.
The Istanbul Protocol is a United Nations manual on the investigation and documentation of torture and cruel, inhuman or degrading treatment or punishment. The intention is to facilitate effective documentation of incidents of torture, partially to support human rights investigations and the assessment of asylum claims.
The Istanbul Protocol offers guidelines and at paragraph 161 of the Protocol it is said that the lack of “physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars”.
The Protocol also acknowledges that not everyone who experiences serious harm will go on to develop a specific mental illness, such as severe post-traumatic stress disorder.
Therefore, if you are worried about lack of medical evidence in your asylum claim this won't necessarily result in your claim being refused but lack of medical evidence makes it all the more important that your application is detailed and that you provide as much other supporting evidence as possible.
Consistent medical evidence in asylum claims
Paragraph 187 of the Istanbul Protocol emphasises that medical evidence should detail the degree of consistency between the injuries sustained by an asylum seeker and the account of how the harm was inflicted. That is why it is important that full information is provided by the asylum seeker. For example, injuries sustained could be highly consistent with torture and the account given or just one of many explanations for injuries of that nature. Detail is key as saying a leg was broken during inhumane treatment may not be sufficient as your description of the specifics of what caused the break may help a doctor to support your account through the radiological evidence being consistent with the type of fracture.
Immigration solicitors and medical evidence in asylum claims
It is the job of an immigration solicitor to arrange a medico-legal report in asylum cases where a report is needed and to explain the need to the Home Office and request a delay in the processing of the asylum claim whilst the medical evidence is obtained. In some cases, a Home Office official may want to proceed without a medical report. That is fine if your asylum claim will be granted but, if not, your immigration solicitor may need to make further representations about the need for delay to obtain the report.
The Home Office time frames for medical evidence in asylum claims are :
- Five to ten working days for general medical evidence on existing healthcare needs and treatment.
- Twenty- eight days where medical evidence has to be commissioned.
- Five months for production of a medico-legal report.
The Home Office will adjust time frames if an immigration solicitor explains why a longer time frame is needed. For example, because of the specialist nature of the referral or the ill-health of the asylum seeker or clinician.
Asylum claims are often complex and difficult but that should not deter you from making an asylum or human rights claim, preferably with the right supporting medical evidence to help the Home Office officials grant your application.
UK Online and London Based Asylum and Immigration Solicitors