Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Resources for providers and practitioners of Medico-legal services

Information below has been compiled by Rights in Exile Programme staff  

Resource person: Courtney Welton-Mitchell*
Email: courtneymitchell13atgmail [dot] com  

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]

Format and Guidance on MLRs

There is a growing body of guidance related to the documentation and treatment of medical evidence in RSD procedures. Key documents include the Istanbul Protocol and the International Association of Refugee Law Judges (IARLJ) Guidelines.

The Istanbul Protocol (The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment) contains the first set of internationally recognised guidelines for the assessment, investigation and the reporting of allegations of torture and ill-treatment to the judiciary or any other investigative body. Thus, where MLRs are documenting torture and other ill treatment, reference and adherence to the standards of the Protocol is widely expected. The Protocol can help practitioners assess the consistency of allegations of torture and ill-treatment and the clinical evidence.[viii] It is significant that the Protocol states that, since psychological symptoms are so prevalent among survivors of torture, the documentation process should include a psychological evaluation, including a psychiatric diagnosis if appropriate.

The International Association of Refugee Law Judges (IARLJ) Guidelines are presented as a ‘a tool designed to assist judges in the fulfillment of their task of ensuring that proper and adequate account is taken of all evidence, including any expert medical evidence, within the refugee status determination process’. The Guidelines offer ‘Standards to ensure uniformity and consistency of expert medical evidence’. It is suggested that evidence demonstrate: the credentials of the author of the expert medical report; the nature of the examination, diagnostic tests and methodology employed; suggested prescribed treatment and long-term prognosis; a critical and objective analysis of the injuries and/or symptoms displayed with an opinion on the consistency between the nature of the injury and the manner in which it was incurred. The Guidelines recommend the use of the Istanbul Protocol, as aspirational best practice.

Despite the IARLJ Guidance and the Istanbul Protocol, treatment of MLRs in the RSD process lacks consistency.[ix] UNHCR has expressed concern that ‘the use and weight of medico-legal reports in asylum procedures vary widely’,[x] stating that ‘initiatives aimed at identifying and developing good practices to address these challenges would be highly desirable.’

Guidelines and Articles 

Stephan Paskey (State University of New York at Buffalo, Law School), 21 October 2015

This article uses scholarship on trauma and narrative theory to examine the challenges faced by survivors who seek asylum – and the ways a lawyer might inadvertently increase the odds of an adverse decision while drafting a declaration. The article also details original empirical research on 369 appellate cases in which immigration judges found an asylum applicant to be not credible. Overwhelmingly, judges cited inconsistencies in the applicant’s story as grounds for that conclusion – yet research among survivors proves that such discrepancies cannot be taken as evidence of falsehood.

M. van Ommeren, F. Hanna, I. Weissbecker and P. Ventevogel 

This paper outlines specific actions for mental health and psychosocial support by the health sector in the preparedness, response and recovery phases of emergencies.

The Istanbul Protocol contains international recognised standards and procedures for recognising and documenting symptoms of torture so the documentation may serve as evidence in court.  The protocol provides guidance for health professional and lawyers who want to investigate whether or not a person has been tortured and report the findings to the judiciary and other investigative bodies.

These Guidelines are presented as ‘aspirational best practice’ and are regarded as a ‘tool to facilitate the decision making process’. The Guidelines are addressed to both the expert and decision-maker.

UK guidance directed to the expert in preparing and presenting evidence.

This training manual aims to offer a creative, multidisciplinary learning method on credibility assessment, tailored to the needs of asylum decision-makers and other asylum professionals.

In this report Freedom from Torture aims to examine the treatment of Medical Legal Reports (MLRs) by UK Immigration Judges in the Tribunal and to assess compliance with good practice standards and guidelines. Case law from the UK jurisdiction and from the European Court of Human Rights is presented and the relevant findings and guidance summarised.

These are the guidelines used by Freedom From Torturein the preparation of MLRs, and which are appended to all MLRs for the reference of decision-makers.

As part of the project Towards Improved Asylum Decision-Making in the EU (also called CREDO project), UNHCR published an extensive report on credibility assessment in EU asylum systems. The report covers the use of medical reports for assessing credibility.

Edited by Rene ́ Bruin, Marcelle Reneman, Evert Bloemen (2006), this publication serves to promote the knowledge of the Istanbul Protocol and its wider use in asylum cases.

The International Association of Refugee Law Judges (IARLJ) conducted research that produced a report focused on how expert evidence, primarily medical, is received in claims alleging torture within the refugee and asylum determination process.

UK Visas and Immigration policy instructions about how it makes decisions on asylum claims 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.

These guidelines were developed in 2010 by the Faculty of Law & Psychiatry Research and Teaching Unit, University of New South Wales, Australia. They are aimed at creating a practical understanding for decision makers, mental health professionals and applicants’ representatives of the challenges for applicants with trauma-related psychological damage where little or no documentation or other objective evidence exists, and credibility is pivotal to decision.

 This article, published in Federal Law Review, vol. 41, no. 3 (2013), explores the significant issues arising from the tendency for decision makers to dismiss expert opinions expressed in reports tendered by applicants from psychologists specialising in cross-cultural mental health assessment. (Access to the article requires subscription). 
 
 This article, published in International Journal of Refugee Law, Dec. 2013, focuses on how expert evidence, primarily medical, is received in claims alleging torture within the refugee and asylum determination process. It illustrates how case law and refugee status determination decisions highlight the need for guidance on the assessment of expert medical evidence. 
 
 

 There are several million war-refugees worldwide, majority of whom stay in the recipient countries for years. However, little is known about their long-term mental health. This review aimed to assess prevalence of mental disorders and to identify their correlates among long-settled war-refugees.

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*Courtney Welton-Mitchell is the director of the Humanitarian Assistance Applied Research Group  at the University of Denver and is a licensed clinician. 

[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.

[viii] In the UK MLRs are expected to report on the consistency of allegations of torture and ill-treatment and the clinical evidence - as is reference to the caselaw RT (medical reports - causation of scarring) Sri Lanka [2008] UKAIT 00009.

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