Written by Eleanor BONNER & Beate DASARATHY

Following on from the Proving Torture conference in October last year which Free Movement wrote about at the time, Freedom from Torture has released a new report, ‘Proving Torture: Demanding the Impossible,’ which highlights UKVI’s significant failings when it comes to considering medical evidence.

This research offers us an opportunity to step back and think about what has changed in the context of medico legal evidence in asylum claims. Case law, such as SA (Somalia and the Secretary of State for the Home department [2006] EWCA Civ 1302, RT (medical reports, causation of scarring) Sri Lanka [2008] UKAIT 00009 and of course KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC), have hugely influenced this area of asylum claims and we have seen a steady rise in the level of ‘evidence’ required. Medico legal evidence lies at the heart of this.

Our Medico-Legal Report Service has responded to this by continuing to ensure that the principles of the Istanbul Protocol are embedded in each medico-legal report and are easily recognised by the decision maker. The Protocol is all about balance – the gathering of the clinical evidence and the application of clinical judgment leading to clinical opinions.

There are some bold statistics from the research that struck us all in the Medical Legal Report Service, in particular, 100% of cases in the research, on the face of it, involve the asylum caseworker failing to apply the appropriate standard of proof to establish a past history of detention and torture. Asylum caseworkers often rejected medical evidence because the expert clinician could not categorically attribute the injuries to torture. In 74% of cases in the research, decision makers even substituted their own opinion for that of the clinician.

These practices continue despite clear Home Office policy directing decision makers that “reports which document and evaluate a claim of torture for asylum proceedings need only provide a relatively low level of proof of torture” and that “It is not the role of caseworkers to dispute the clinical findings in the report or purport to make clinical judgements of their own about medical evidence or medical matters generally” (section 3.3 of the policy).

Our research also highlighted the pervasive problem surrounding credibility assessments. Clinical explanations regarding the possible causes of discrepancies are not being considered, with 84% of the cases in the research dismissing the medical evidence after already making a finding on credibility. This is against the principle in Mibanga [2005] EWCA Civ 367 and the Home Office policy which states that “a conclusion on the overall credibility of an account of past events must not be reached without careful consideration of the contents of the Foundation’s MLR.”

We are acutely aware of how our evidence is treated and the inappropriately high standard of proof applied in practice by the Home Office. Our clinicians spend longer writing reports than ever before in an effort to meet the ever increasing demands from within the system. This time consuming process impacts on our capacity and ability to provide our service to torture survivors at a time when Europe is in the midst of one of the largest refugee crisis in history.

In light of the research findings, we would encourage you to highlight these policy requirements to the Home Office in your cover letters to the medico-legal report to try and ensure appropriate weight is given to the medical evidence.

If your client has had a medico-legal report from Freedom from Torture, please contact us at the email below to let us know the outcome of the case including to support our future research. Furthermore, if you consider the evidence has been mishandled by the Home Office, please contact us to ask for a Clinical Response Letter which may be able to clarify or respond to clinical issues in a decision document which has been misunderstood.

You can make a referral for this by sending the refusal decision or determination to the MLR referrals email address: MLRreferrals@freedomfromtorture.org