Abstract
The majority of requests for reports in immigration and asylum cases arise in the asylum context. However, issues of mental health will frequently come up in human rights applications and may give rise to similar requests. Here, we provide an outline of the asylum legal process, identifying the relevance of expert psychiatric reports within that process and the duties of the psychiatric expert, and providing guidance on the conduct of such assessments and the preparation of reports.
The consideration given to a report depends on the quality of the report and the standing and qualifications of the doctor.
The majority of requests for reports in immigration and asylum cases arise in the asylum context. However, issues of mental health will frequently come up in human rights applications and may give rise to similar requests. Here, we provide an outline of the asylum legal process, identifying the relevance of expert psychiatric evidence within that process and the duties of the psychiatric expert, and providing guidance on the conduct of such assessments and the preparation of reports.
The Asylum and Appeal Process and the Potential Functions of Expert Psychiatric Reports within that Process
A refugee is a person who meets the definition in the UN 1951 Convention Relating to the Status of Refugees (‘the Convention’), art 1A. An asylum seeker is a person who has left their country of origin and formally applied for recognition as a refugee.
An asylum seeker is required to demonstrate a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group, and inability or unwillingness to seek protection from the authorities in their own country. The perspective is forward-looking as what determines whether asylum should be granted is risk on return, not demonstration of past persecution, although, in the absence of evidence of a significant or major change of circumstances, it can substantially support the well-foundedness of the present fear and be considered probative of future risk. This is an important consideration when considering the use of medical evidence in support of asylum applications. Furthermore, as the UN 1999 Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the Istanbul Protocol’), para. 261 makes clear:
Psychological evaluations provide useful evidence for medico-legal examinations, political asylum applications, establishing conditions under which false confessions may have been obtained, understanding regional practices of torture, identifying the therapeutic needs of victims and as testimony in human rights investigations. The overall goal of a psychological evaluation is to assess the degree of consistency between an individual’s account of torture and the psychological findings observed during the course of the evaluation. To this end, the evaluation should provide a detailed description of the individual’s history, a mental status examination, an assessment of social functioning and the formulation of clinical impressions … A psychiatric diagnosis should be made, if appropriate. Because psychological symptoms are so prevalent among survivors of torture, it is highly advisable for any evaluation of torture to include a psychological assessment.
Decisions on asylum applications made in the UK rest with United Kingdom Visas & Immigration (UKVI). The asylum seeker will have at least two interviews with officials from UKVI. The first is the ‘screening interview’, in which the UKVI official takes the personal details of the applicant and an account of their journey to the UK. The second ‘substantive interview’ is the opportunity for the applicant to describe their past experiences and their fear for the future if returned to their country of origin.
UKVI officials then consider the account of persecution and further supporting evidence, including medicolegal reports, in order to decide whether the applicant has met the criteria for a grant of asylum under the Convention. To be recognised as a refugee under the Convention, a person must demonstrate, inter alia, that their fear is well-founded and related to a Convention-specified reason, that they are unable to seek protection from their own state and that, if the persecutor is a non-state actor, it would be unreasonable for them to seek protection in another part of their country of origin.
One consequence of the asylum seeker’s fear may be a risk of suicide and this may be created by a genuine fear even if lacking objective foundation (Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362). However, the test is not just of a significantly increased suicide risk, but of a real risk; merely more than ‘not fanciful’ is not enough (J v Secretary of State for the Home Department [2005] EWCA Civ 629).
A particular issue may be vulnerability to harm in immigration detention as the Immigration Act 2016, s 59 has created a statutory duty for the Secretary of State to take this into account. The Home Office (2018) has issued Guidance on adults at risk in immigration detention. Paragraph 11 lists conditions or experiences which may indicate such vulnerability, including ‘a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition)’ and PTSD. The corollary is that only in very exceptional circumstances will someone be considered suitable for detention if suffering from a serious medical condition which cannot be satisfactorily managed within detention. However, it is not sufficient to diagnose a mental disorder within the meaning of the MHA 1983. Whether the person is ‘suffering’ means having regard to the effects of the condition on the individual and the effect of detention on them. Consideration of ‘satisfactory management’ means having regard to such matters as the medication they are taking, their demonstrable needs and whether they can be met in detention, the facilities available at the centre where they are, or are to be, detained and the expected period of detention (R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45). In OM (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 909, regarding OM, who suffered from a recurrent depressive disorder and emotionally unstable personality disorder and had attempted suicide, the court accepted the balance of expert opinion that she could be managed appropriately in detention. If for some reason the standard of care in detention was not equal to the standard of care which would be available to the detainee if released, this could call into question how satisfactorily their condition could be managed in detention.
What Constitutes Relevant Evidence?
The UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (December 2011) (‘the Handbook’) explains that persecution has no ‘universally accepted definition’ (Handbook, para. 51), but that:
The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.
An assertion of persecution therefore needs to be understood in the overall context of the evidence given, which may include medical evidence.
The standard of proof in asylum matters is very low (a ‘reasonable degree of likelihood’), but the burden of proof in asylum matters is upon the asylum seeker. The Handbook (para. 37) explains that:
No documentary proof as such is required in order for the authorities to recognise a refugee claim, however, information on practices in the country of origin may support a particular case. It is important to recognise that in relation to gender-related claims, the usual types of evidence used in other refugee claims may not be as readily available. Statistical data or reports on the incidence of sexual violence may not be available, due to under-reporting of cases, or lack of prosecution. Alternative forms of information might assist, such as the testimonies of other women similarly situated in written reports or oral testimony, of non-governmental or international organisations or other independent research.
Related posts:
Chapter 3 – Training, Development and the Maintenance of Expertise
Chapter 4 – Business Matters
Chapter 9 – Reports for Family Proceedings Relating to Children
Chapter 10 – Reports in Cases Involving Capacity Issues
Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Chapter 17 – Going to Court
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