«Asylum Policy Instruction MEDICO-LEGAL REPORTS FROM THE HELEN BAMBER FOUNDATION AND THE MEDICAL FOUNDATION MEDICO LEGAL REPORT SERVICE Version 4.0 ...»
Asylum Policy Instruction
MEDICO-LEGAL REPORTS FROM THE
HELEN BAMBER FOUNDATION AND
THE MEDICAL FOUNDATION MEDICO
LEGAL REPORT SERVICE
Section 1: Introduction 3
1.1 Purpose of instruction 3
1.2 Background 3
1.3 Policy intention behind considering MLRs 3
1.4 Application in respect of children 4 Section 2: Process and Case Management 5
2.1 Referrals to the Foundations 5
2.2 Children 5
2.3 Pre-Assessment procedure by the Foundations 5
2.4 Cases accepted for a pre-assessment 6
2.5 Assessment timescales 6
2.6 Case management 7
2.7 Granting leave without the need for an MLR 8
2.8 Case handling at the substantive interview stage 8
2.9 Interim Reports 9
2.10 Cases where referral does not lead to an MLR 10
2.11 Detained Fast Track Processes 10 Section 3: Considering the content of MLRs 11
3.1 Introduction 11
3.2 Interviewing 11
3.3 Considering MLRs as part of the decision making process 12
3.4 Assessing the overall claim 14
3.5 MLRs submitted following refusal of asylum 14
3.6 Preparing case files for appeal hearings 15
Asylum Policy Instruction: Medico-Legal Reports from Freedom from Torture and Helen Bamber Foundation v4.0 (2015-07) Page 2 of 20 Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed Section 1: Introduction
1.1 Purpose of instruction This guidance explains how caseworkers should process and consider asylum claims involving allegations of torture or serious harm where a Medico-Legal Report (MLR) from the ‘Medical Foundation Medico-Legal Report Service’ at Freedom from Torture or the Helen Bamber Foundation forms part of the evidence. There is separate guidance for medical (or expert) reports submitted by other individuals or organisations in Medical Evidence (Non Medical Foundation cases), and where a report is submitted in relation to an Age Dispute case.
This is a supplementary instruction and must be read in conjunction with other relevant
guidance when considering the claim, including:
► Assessing credibility and refugee status;
► Humanitarian Protection;
► Gender Issues in the Asylum Claim;
► Victims of Trafficking (Guide for Competent Authorities);
Family and Private Life – 10 year route;
► ► Discretionary Leave (DL);
► Human Rights claims on medical grounds.
1.2 Background Torture, trauma and ill treatment can form part of any asylum and/or human rights claim and victims and survivors may have difficulties in recounting details because of the traumatic and sensitive nature of those experiences. Nevertheless, where an applicant claims to have been tortured or the victim of other forms of serious ill-treatment, caseworkers are required to consider any information about when, where, how, and by whom the torture or serious harm was inflicted. This may involve considering MLRs submitted as evidence to support the claim.
This guidance is for caseworkers processing cases where either the Medical Foundation Medico Legal Report Service or the Helen Bamber Foundation (the Foundations) has registered an interest in the case and specifically, where either organisation has provided an MLR as part of the evidence of ill treatment. Further details about both organisations can be found in Annex B.
1.3 Policy intention behind considering MLRs The underlying policy objective when processing claims involving allegations of torture or
serious harm and considering MLRs in the context of an asylum claim is to:
► ensure all asylum claims are properly considered in a timely and sensitive manner on an individual, objective and impartial basis;
1.4 Application in respect of children Children can be victims of torture and in certain circumstances the Foundations will accept referral of cases involving unaccompanied and accompanied children. As with adults who allege torture or serious harm, referral of a child to one of the Foundations for an MLR comes via their legal representatives. Referrals for treatment services may also be made by GPs, teachers or social workers. In respect of claims involving torture or serious harm, Medical Foundation and the Helen Bamber Foundation MLRs relating to children must be considered in the same way as those relating to adults.
Specially trained caseworkers deal with asylum claims from children, including cases where torture or serious harm is alleged. The Foundations’ MLRs may occasionally provide evidence relevant to the age of the child. If age is in dispute, this evidence must be considered alongside all other relevant evidence on age. Where the MLR contains more information which raises credibility issues around the claim, wherever possible, this should be put to the child (if this is being done in person, this must be in the presence of a responsible adult) to give them an opportunity to explain or clarify the credibility point in question.
Evidence provided in the MLR must not be given ‘no weight’ in the overall consideration of the claim. Further guidance on weighing up conflicting evidence on age is given in the Asylum Instruction Assessing age.
Caseworkers must also be aware of our obligations under Section 55 of the Borders, Citizenship and Immigration Act 2009. Further guidance is available at Section 55 Children's Duty Guidance.
Asylum Policy Instruction: Medico-Legal Reports from Freedom from Torture and Helen Bamber Foundation v4.0 (2015-07) Page 4 of 20 Note: This Document Becomes an Uncontrolled & Unsupported Version if Printed Section 2: Process and Case Management
2.1 Referrals to the Foundations For asylum claimants who allege torture, referral to one of the Foundations usually comes via their legal representatives, but it can also be made by GPs, other health professionals, frontline refugee agencies or, in the case of children, teachers or social workers. This second type of referral can also lead to an internal referral for an MLR.
Where an account of torture or serious harm is given during the interview, the caseworker should suggest that the applicant may wish to approach one of the Foundations for care and treatment. However, it is for the applicant or their representative to decide whether to seek an appointment with one of the Foundations. Where a caseworker suggests a referral, this does not necessarily mean that the claim of torture has been accepted at this point.
2.2 Children The Foundations will accept referral of cases involving unaccompanied and accompanied children. Claims from children who have provided evidence that they are awaiting an appointment with the Foundations must be dealt with in the same way as those from adults, although caseworkers should be aware that the Foundations have limited clinical resources in this area which may lead to delays. See also section 1.4 above.
2.3 Pre-Assessment procedure by the Foundations Once the applicant has been referred to one of the Foundations, from whatever source, for an MLR, the referral is assessed by the Foundation and, on the basis of the information contained
in it; a decision will be made to:
► Reject the request without an appointment or;
► Invite the applicant to attend a ‘pre-assessment’ interview; or ► Move directly to an appointment with a clinician.
Although this varies between the Foundations, only approximately 30 per cent of applications are accepted for pre-assessment. The decision not to invite an applicant for an assessment does not necessarily reflect upon the applicant’s credibility. This decision may be taken on a number of grounds, including instances where the case does not fall within the remit of the Foundation, where another clinician may be better placed to document the evidence, where there is nothing to document physically or psychologically or where injuries have already been documented and the Foundation has nothing to add. Caseworkers must not draw adverse inferences regarding the credibility of the asylum claim from the Foundations decision not to invite the applicant for an assessment or not to proceed with an MLR after a pre-assessment.
Paragraph 161 of the Istanbul Protocol states that:
Similarly paragraph 236 of the Protocol states:
It is important to recognize that not everyone who has been tortured develops a diagnosable mental illness. However many victims experience profound emotional reactions and psychological symptoms.
Paragraph 234 of the Protocol though makes clear that:
The psychological consequences of torture, however, occur in the context of personal attribution of meaning, personality development and social, political and cultural factors.
In cases where applicants are not accepted for an appointment with a clinician or other health care professional, the Foundation will promptly inform them of the reason, usually through their legal representative, who should, where the Home Office is awaiting the outcome of the referral, promptly inform the caseworker to ensure the case is not unnecessarily delayed.
2.4 Cases accepted for a pre-assessment When the caseworker is informed in writing by the applicant’s legal representative that the case has been accepted for a pre-assessment appointment, they should normally suspend the substantive decision if they are not minded to grant any leave (see section 2.8 below). If the caseworker is informed by phone, the legal representative should be asked to provide written confirmation and a copy of the letter from the Foundation (which should be available).
However, there may be cases where the applicant’s account of events, including incidents of torture, is accepted but this does not give rise to a need for international protection where, for example, the country situation has changed or there is sufficiency of protection. In such cases the caseworker may proceed to decision without waiting for the MLR but should first contact the legal representatives and give them an opportunity to provide representations as to why the decision should be suspended to wait for the MLR. Caseworkers should discuss a decision to proceed with a Senior Case worker.
Where it is decided to delay the decision pending receipt of the MLR, caseworkers should confirm that the decision has been suspended in writing to the applicant and legal representative (if represented). A template letter is available at Annex A.
2.5 Assessment timescales The Foundations aim to produce a full MLR within five months of the date that the legal representative or applicant has been notified in writing that the case has been placed on hold by the Home Office. However, flexibility is required when considering whether to delay cases beyond the five month target as there may be exceptional reasons for delay. Caseworkers
There are several factors that may lead to a delay in the completion of an MLR, and which
may warrant the grant of extra time. These include, but are not limited to:
► a high level of trauma and/or a long history of torture and/or multiple injuries requiring additional clinical sessions;
► the need to match the applicant with a particular specialist;
► missed appointments due to travel disruption;
► a decision not to release the applicant from detention; or ► illness on the part of the applicant or Foundation clinician or interpreter.
► In children’s cases, securing the appropriate clinical resources and expertise.
However, the Home Office are unable to delay a decision indefinitely whilst awaiting receipt of an MLR and is entitled to set a reasonable time limit for the receipt of additional evidence after which the case will be decided. It is not possible to state a rigid time limit which would be appropriate for all cases where provision of an MLR has not been possible within the 5 month timeframe. Therefore, a reasonable time limit should be set on a case-by-case basis, in consultation with a Senior Caseworker who must consider any correspondence from the legal representative regarding the reasons for the delay.
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2.6 Case management When deciding whether or not to delay consideration of a case pending receipt of an MLR from either Foundation, the guiding principle is that the caseworker must act reasonably. The decision to delay must be made on a case-by-case basis. Caseworkers should assess the importance and relevance of the evidence to the claim, and seek advice from a Senior Caseworker if in doubt.
Cases must be actively managed whilst any report is being produced. Caseworkers must ensure regular contact with the applicant’s legal representative (where they are represented) is maintained to minimise any delays in either the production of the MLR or the existence of other factors that could reasonably be expected to delay the decision more than is necessary.
Caseworkers must clearly document on the Home Office file all communication with the applicant’s legal representative, including any failure to provide updates on the progress of the case when requested to do so. If there is no indication from the applicant’s legal representatives as to why the case has been delayed, consideration must be given to proceeding to a substantive decision. Caseworkers must ensure that every effort has been made to discuss the progress of the case with the legal representative before proceeding to make a decision.