Magazine article Forced Migration Review

Proving Torture: Demanding the Impossible

Magazine article Forced Migration Review

Proving Torture: Demanding the Impossible

Article excerpt

A recent study suggests that 27% of adult forced migrants living in high-income countries like the UK are survivors of torture.1 Many have complex physical, psychological, social and legal needs arising from their torture and from their often prolonged and dangerous journey to safety, and yet survivors consistently tell us that securing legal status quickly through the asylum system is the most significant problem they face.

Medico-legal reports are a wellrecognised and accepted form of evidence commissioned by legal representatives on behalf of asylum claimants to assist decisionmakers in establishing key factual elements of an asylum claim. They are a vital form of evidence for survivors of torture who may have little else available to prove the fact of their torture and, for reasons stemming from psychological trauma, may find it particularly difficult to give a coherent and comprehensive account of what has happened to them.

Freedom from Torture undertook a detailed analysis of how 50 expert medicolegal reports have been treated by asylum caseworkers in the UK Home Office.2 The results indicate that in such cases many Home Office decisions are poor and have to be corrected by judges. In 76% of cases in our research for which the final outcome is known, the person was granted asylum following a successful legal appeal. The average success rate for asylum appeals is 30%. In many of the cases we reviewed, the Immigration Judge specifically refers to the strength and high quality of the medical evidence at the appeal stage. Such a high rate of overturn on appeal, albeit for a relatively small cohort of cases, suggests serious and systemic failings in asylum decisionmaking on torture claims in the UK.

Standard of proof

In all of the cases in our research we found that asylum caseworkers failed to apply the correct legal standard of proof for asylum claims in the UK. In order to grant asylum, caseworkers are required to satisfy themselves that a claimant's account is 'reasonably likely' to be true. Our research shows that, in practice, asylum caseworkers demand a different standard of proof from the medical evidence of torture, one which comes closer to the criminal standard of 'beyond reasonable doubt'. For example, asylum caseworkers reject medical evidence because the expert clinician cannot categorically attribute the injuries to torture. This is grossly inconsistent with the 'reasonably likely' standard of proof demanded. In other cases, caseworkers wrongly assume that physical injuries assessed as anything less than 'diagnostic' of torture (that is, having no other possible causes) have little or no significance as evidence of torture.

Questioning or replacing expert medical opinion

We found that in 74% of the cases asylum caseworkers gave preference to their own opinion on clinical matters or made clinical judgments beyond their qualifications. In 30% of cases, they wrongly questioned the clinical expert's qualifications and expertise in the documentation of torture. This is contrary to the Home Office policy guidance which directs them not to "dispute the clinical findings in the report or purport to make clinical judgements of their own about medical evidence or medical matters generally".3 The Home Office explicitly recognises in its policy that medical doctors and other clinicians at Freedom from Torture are "objective and unbiased" as well as trained, experienced and qualified to prepare medico-legal reports relating to torture, including in relation to the assessment of mental health conditions. …

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