The Home Office has published a new policy on Medical evidence in asylum claims.

For years there had been policy on medico-legal reports from the Helen Bamber Foundation and Freedom from Torture. There was also a much scrappier policy on medical evidence not from those medical foundations. 

This new August 2021 policy (described optimistically as version 1.0) seeks to consolidate both. It is designed to tell Home Office caseworkers how to approach medical evidence and requests from legal representatives for more time to collect such evidence. 

The good news

The new policy is fairly good on acknowledging the different kinds of medical evidence that may be available: 

Medical evidence may be submitted from a range of sources and in different forms, from appointment slips to MLRs. Printouts of medical records or appointment slips may be sufficient to establish the existence of a condition and you must take into account the lower standard of proof in assessing asylum claims. 

Similarly, it acknowledges the expertise of clinicians from different clinical disciplines (dismissing the myth often seen in refusal letters that GPs cannot diagnose mental illness, for example): 

No medical evidence should be given little weight on the grounds that the writer, whether a doctor, consultant, other clinician or healthcare professional is not sufficiently qualified to write it – including, in relation to mental health conditions, where the writer has extensive experience in the field and are regulated professionals.

The new policy does not carve out worse treatment for people in immigration detention; it preserves their equal right to obtain medical evidence to support a protection claim (see page 13). This is an important safeguard against expedited and procedurally unfair decision-making and means that where an appropriate referral for medical evidence is made, this may be a basis for reconsidering a detention decision (see the last sentence on page 12, and also page 5). 

The less good news

The policy requires legal representatives to provide quite detailed information if they are requesting a delay on an asylum decision for the submission of a medico-legal report (pages 11-12 of the policy include a list of the information needed). In practice this may not be too different an approach to the current situation.

It also provides an unrealistic five to ten working day timeframe for providing medical evidence about existing healthcare needs (page 14). In practice lawyers will have to communicate with the Home Office to ask for additional time in individual cases where five to ten working days is insufficient.

Where evidence has to be commissioned, there is a longer window (28 days for a commissioned letter and five months for a medico-legal report). Busy GPs and consultants can often take a significant period of time to provide the kind of relevant and detailed letter needed in an immigration case. 

The new policy pushes back against delaying substantive asylum interviews to allow medical evidence to be obtained. This approach is arguably unlawful, because it potentially denies people the opportunity to obtain evidence that would influence the way an interview was conducted, what was asked and the level of detail a person might be expected to give in the context of their clinical profile.

The Home Office’s Assessing credibility and refugee status policy, for example, states that “medical evidence which potentially corroborates an account of torture should be given considerable weight”. This obviously cannot be done if time is not allocated for the evidence to be obtained. The new policy also puts the cart before the horse in requiring medical evidence or medical information to be provided to show why medical evidence is needed:

An asylum interview must not be delayed pending receipt of a medical report unless sufficient medical evidence, or information raising concerns that require medical evidence, is provided that a medical condition may prevent the claimant from attending or participating fully with the interview process. Any request from the clinician or legal representative to delay an interview must clearly state why the claimant is unable to participate in the interview and provide sufficient medical evidence to support that assertion. Such evidence should also give an indication as to when the claimant may be able to attend an interview and or whether a request for reasonable adjustments is being made.

When requesting to delay an asylum interview, legal representatives will need to give a clear explanation of why the medical evidence is relevant to the suitability of the person for interview or the way the interview will need to be conducted. 

Conclusion

Legal representatives will need to check this policy carefully when providing medical evidence in an asylum claim and may wish to cross-reference it in their submissions.

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