Obtaining/Preparing Medical-Legal Assessments in RSD AdjudicationInformation below has been compiled by Rights in Exile Programme staff
Resource person: Courtney Welton-Mitchell
Email: courtneymitchell13gmail [dot] com
Courtney Welton-Mitchell is the director of the Humanitarian Assistance Applied Research Group at the University of Denver and is a licensed clinician.
The provision of medical evidence in Refugee Status Determination procedures is frought with challenges. Despite the challenges posed, medical reports documenting asylum seekers’ physical and/or mental health are increasingly being used within Refugee Status Determination (RSD) proceedings as objective evidence to support asylum claims.
Below we provide a brief introduction to the use of medical evidence, as well as outline key guidance.
An asylum seeker’s testimony is the principle, and often the only, subjective evidence provided within Refugee Status Determination (RSD) proceedings. It is used to show that one has suffered persecution in the past and/or to demonstrate a risk of persecution in the future.[i] As with country of origin Information, medical (physical and psychological) information can carry significant evidentiary weight, assist decision-makers, and impact the treatment of an asylum claimant and the outcome of an asylum claim.[iii]
In the UK, medical evidence is most commonly submitted to asylum adjudicators as a medico-legal report (MLR). This term has also been used throughout the EU and in other contexts. In the US these reports are known as medical affidavits or declarations (depending on whether notarized). It is the responsibility of the applicant (assisted by the legal adviser) to obtain and submit an MLR to adjudicators. Though most commonly filed during appeal proceedings, MLRs can be submitted at any stage of the application or appeal process.
The purpose of Medico-Legal Reports (MLRs)
MLRs are almost always used in support of the asylum claim for one the following three purposes.[iv]
An MLR may be used to establish the degree of consistency between physical or psychological injuries and the alleged torture or ill-treatment upon which an asylum claim is based. It can, therefore, form part of the evidence that may establish past persecution, thus contributing to an assessment that the applicant may face future risk if returned to his or her country of origin.
An MLR may also be used to assess how the client’s mental health status may affect his or her ability to provide ‘credible’ or otherwise complete testimony, particularly in cases of torture or trauma and associated mental health symptoms.[v]
Finally, an MLR can also be used to evidence the possible impact of removal and return to the country of origin upon a person’s physical or mental well-being or that of a family member. [vi] For example, an MLR may detail the treatment a claimant has had in the country of asylum as well as ongoing treatment needs, which may help the adjudicator to assess the impact of return to a country of origin where the condition cannot be treated. Currently, these cases most often relate to HIV treatment and dialysis, but necessary treatment may also be related to mental health.
The author/provider of MLRs
There are no national or international standards or requirements demanded of the author of MLRs. However, as with COI, the MLR author's credentials and reporting must be deemed authoritative and credible by the RSD decision-maker. In the UK, authors of MLRs are frequently medical doctors, psychologists, psychiatrists and social workers, and reports are usually provided as expert witness evidence. Solicitors will often refer authors to the Practice Directions, particularly section 10, concerning expert evidence. This section states that expert evidence ‘should be the independent product of the expert and should provide an objective, unbiased opinion on matters within the author’s area of expertise.’ Thus the author of an MLR is not acting as an advocate for the asylum applicant but rather as a source of ‘objective’ information. Therefore the clinician should not give an opinion on the overall credibility of the account, as this is the prerogative of the decision-maker. However he or she may be expected to consider the possibility of fabrication or exaggeration, and may comment about this.
Clinicians should have training and experience in working with refugee populations, as well as in the areas covered by the MLR. A lack of sensitivity to the cultural presentation of mental illness and the culturally specific demonstration of traumatization and memory can limit a report’s effectiveness.[vii]
Please click on the following links for further information:
[i] Gibb, R and Good A. 2013. Do the Facts Speak for Themselves? Country of Origin Information in French and British Refugee Status Determination Procedures. International Journal of Refugee Law Vol. 25 No. 2 pp. 291–322
[ii] Fassin, D. and D’Halluin E. 2005. The Truth from the Body: Medical Certificates as Ultimate Evidence for Asylum Seekers. American Anthropologist. 107(4) 597–608.
[iii] Pettitt, J. 2011. Body of Evidence: Treatment of Medico-Legal Reports for Survivors of Torture in the UK Asylum Tribunal. Freedom from Torture. London, UK.
[v] Kneebone, S. (1998) ‘The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role?’ Australian Journal of Administrative Law 5; Wilson-Shaw, L., Pistrang, N. and Herlihy, J. (2012), ‘Non-clinicians’ judgments about asylum seekers’ mental health: how do legal representatives of asylum seekers decide when to request medico-legal reports?’, European Journal of Psychotraumatology, 3:18; Kalin, W. (1986) ‘Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing’, International Migration Review, 20 (230).
[vii] Pitmann, A. 2010. Medicolegal reports in asylum applications: a framework for addressing the practical and ethical challenges. Journal of the Royal Society of Medicine. 1; 103(3): 93–97.