HANDLING CLAIMS INVOLVING ALLEGATIONS OF TORTURE OR SERIOUS HARM IN THE NON-DETAINED PILOT PROCESS
Table of Contents
1 Summary1.1 Use of terms
1.2 Application of this instruction in respect of children and those with children
2 The Medical Foundation for the Care of Victims of Torture (Freedom from Torture) and the Helen Bamber Foundation
2.1 Background information
2.2 Referrals to the Foundations
2.3 Children
2.4 Pre-assessment Procedure
2.5 Assessment timescales during the Pilot
2.6 Content of reports written by the Foundations
3 Dealing with applications which have been accepted by one of the Foundations for a pre-assessment appointment
3.1 Initial consideration upon notification of acceptance
3.2 The ‘5 month clock’
3.3 Handling cases put on hold
3.4 Reaching the ‘5 month milestone’
3.5 Cases still with the Foundations 5 months on
3.6 Granting asylum without the need for a report
3.7 Interim Reports
3.8 Case handling at the substantive interview
3.9 Dealing with reports from the Foundations submitted following the refusal
of asylum
3.10 Preparing case files for appeal
4 Interviewing
5 Assessment of medico legal reports
5.1 Considering MLRs
5.2 Assessing the overall claim
6 Difficulties with the Foundations
Annex A (Standard Wordings)
Template letter A - Letter to Legal Representative following acceptance for pre-assessment}
Template letter B - Letter to Legal Representative requesting an update (following acceptance for pre-assessment)
Template letter C - Letter to Legal Representative – Follow up – name will be placed on Log
Template letter D - Letter to Legal Representative – notice to provide monthly updates following acceptance for full assessment.
Template letter E - Letter to Legal Representative – five working days to provide Medico-Legal report
Template letter F - Letter to Legal Representative – five months from the date of Template Letter A / 2
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1Summary
This instruction provides guidance for Case Owners in the Wales and South West (WSW) asylum team and the Barnet and Enfield and Hackney and Tower Hamlets Local Immigration Teamshandling asylum and human rights claims included in this Pilot where an asylum applicant has stated that they have been tortured or suffered other serious harm.
Only cases referred to the Medical Foundation for the Care of Victims of Torture or the Helen Bamber Foundation (the Foundations) between 18 July 2011 and 31 October 2011 are included in this Pilot. [1]
Case Owners must not use the annexed templates or expect the Foundations to apply the timescales set out in this AI for any cases outside of this Pilot.
Guidance is also provided on how to request information on a particular case from an applicant’s representative. It contains information on how to consider claims when a Medico-Legal Report (MLR) has been prepared for the applicant. Separate instructions apply when the applicant has approached an organisation or individual other than the Foundations or the case is not included in the Non Detained Pilot Process.
This is a supplementary instruction and must be read in conjunction with the separate Asylum Instructions (AI), Considering the Protection (Asylum) Claim and Assessing Credibility; Gender Issues in the Asylum Claim;Internal Relocation;Victims of Trafficking and Articles 1F and 33(2) of the 1951 Refugee Convention; Considering Human Rights Claims and Discretionary Leave.Case Owners should have knowledge of the relevant standards applicable in the field of asylum and refugee law and should not attempt to decide an asylum application until they have read and understood these instructions. Case Owners are required to assess any claim on an individual, objective and impartial basis.
1.1Use of Terms
Within this instruction, the following terms are used:–
Case Owner refers to Case Owners or Caseworkers within the Barnet and Enfield and Hackney and Tower Hamlets Local Immigration Teamsand the Wales and South West teams involved in this Pilot.
Senior Caseworker applies to Senior Caseworkers within the Pilot teams.
Applicant, Individual, Person and Subject are all interchangeable terms referring to the person applying for protection (Asylum);
1951 Convention, Geneva Convention and Refugee Convention are used interchangeably when referring to the 1951 United Nations Convention relating to the Status of Refugees and the 1967 Protocol to that Convention.
A 'refugee' is a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulation 2006.
ECHRArticle 3 refers to the European Convention on Human Rights (which prohibits torture, cruel, inhuman and degrading treatment).
ECHR Article 8 refers to the European Convention on Human Rights (which protects the right to respect for private and family life, home and correspondence) and may also be raised in the context of a claim involving medical issues.
Foundation(s) refers to the Medical Foundation for the Care of Victims of Torture (Freedom from Torture) and the Helen Bamber Foundation. The Foundations have separate but overlapping remits and functions. The Foundations will exercise their discretion in determining whether cases fall within their respective remit.
Istanbul Protocol: Refers to theManual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Professional Training Series No. 8/Rev.1: United Nations: New York and Geneva, 2004.
Torture can be taken to include, for example, rape or other serious forms of psychological, physical or sexual violence.[2] The term torture has a very specific meaning in human rights law, as a particularly severe form of ill treatment. The use of the term ‘torture’ throughout this instruction is not generally intended to be understood in the legal sense unless it is clear from the context that this is the case.[3]
Unless otherwise specified in the text, considerations described as applying to torture will apply equally to other forms of ill treatment and serious harm.
Trauma ECHR Article 3 above is congruent with current thinking as to the social, psychological and physical impact of these events upon the individuals who have suffered them. It is now accepted that victims of such violence or torture and other forms of serious harm or ill- treatment present with a form of trauma that is more complex and enduring than non-interpersonal related violence.
Ill-treatment: The International Committee of the Red Cross uses the broad term "ill-treatment" to cover both torture and other methods of abuse prohibited by international law, including ‘inhuman, cruel, humiliating, and degrading treatment, outrages upon personal dignity and physical or moral coercion.’ Ill-treatment is often used to summarise article 3 “torture, cruel, inhuman and degrading treatment” but also (as used by ICRC) can be applied as a broader term. Ireland v UK 1978 described the difference between torture and ill-treatment as “a difference in the intensity inflicted” and commented that this matter was “relative.” (See also Kudla v Poland 2000 para 91).
Ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, and its physical or mental effects and, in some instances, the sex, age and state of health of the victim.
Serious Harm: Paragraph 339K of the Immigration Rules reflects Article 15 of the Qualification Directive in that the fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. According to Article 15, "Serious harm consists of: (a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
1.2Application of this instruction in respect of children and those with children
Section 55of the Borders, Citizenship and Immigration Act 2009requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK.It does not impose any new functions, or override existing functions.
Case Owners must not applythe actions set out in this instruction either to children or to those with children without having due regard toSection 55. The UK Border Agency’s guidance in‘Every Child Matters - Change for Children‘ sets outthe key principles to take into account in all Agency activities.
Our statutory duty to children includes the need to demonstrate that asylum applications and consideration of exclusion issues are dealt with in a timely and sensitive fashion where children are involved. In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children.
The Foundations will accept the 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 usually comes via their legal representatives, but it can also be made by GPs, teachers or social workers. In respect of claims involving torture or serious harm, the Medical Foundation and the Helen Bamber Foundation medico-legal reports relating to child applicants should be considered in the same way as those relating to adults.
Specially trained staff deal with asylum applications by minors, including those cases where torture is alleged. Further guidance is given in the Asylum Instruction on Processing an asylum application by a child. The Foundations’ medico-legal reports may occasionally provide evidence relevant to the age of the child. If the child’s age is in dispute, this evidence should be considered alongside all other relevant evidence on age, but it should not be regarded as providing expert medical evidence of the age of the child. Furthermore, if information contained within the medico-legal report raises credibility issues around the applicant’s claim for asylum, before any finding is made, it must be put to the applicant (if in person and if they are being treated as a child, it should be in the presence of a responsible adult) and they must be given 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.
2The Medical Foundation for the Care of Victims of Torture (Freedom from Torture) and the Helen Bamber Foundation
2.1Background Information
The following information regarding the Medical Foundation for the Care of Victims of Torture (Freedom from Torture) and the Helen Bamber Foundation has been provided by the Foundations themselves.
“The Medical Foundation for the Care of Victims of Torture is a national charity which was established in 1985. It is the only organisation in the UK dedicated solely to the treatment of torture survivors. The main treatment centre is in London, with further centres in Manchester covering the North West of England, Newcastle covering the North East of England, Birmingham covering the West Midlands and Glasgow covering the whole of Scotland.
On 17 June 2011, the Medical Foundation for the Care of Victims of Torture changed its name to Freedom from Torture; however the Medical Foundation for the Care of Victims of Torture will continue to be its name in all legal and financial dealings. This Asylum Instruction relates to the Medical Foundation’s medico-legal report service which will continue to be known as the ‘Medical Foundation Medico Legal Report Service’.
The Medical Foundation offers medical, psychiatric and psychological consultation, assessment and treatment, short and long term rehabilitation through social care, casework and counselling, psychotherapy, physiotherapy, complementary therapies, group and family work, small financial grants to individuals as well as practical assistance with accommodation and welfare agencies. The Medical Foundation also accepts instructions for the preparation of forensic medico-legal reports documenting torture and ill-treatment”.
The Medical Foundation website address is:
“The Helen Bamber Foundation was founded in 2005 and works with survivors of torture (whether sponsored by the State or others), war, genocide, human trafficking for sexual exploitation or labour (slavery), gender based violence (including violence on the basis of one’s sexuality) and extreme domestic violence.Many of their clients fall outside the remit of other organisations.
The Foundation’s understanding of the traumatic impact of such experiences is based on 60 years direct clinical experience that began with concentration camp survivors after WWII. The Foundation’s methodology for assessing and treating victims incorporates current research on trauma. Prolonged and repeated exposure to catastrophic experiences (such as when the victim is in a state of captivity, unable to flee, and/or under the control of the perpetrator) can result in trauma that is complex and enduring. Such trauma often results in the victim feeling permanently damaged, the loss of previously held belief systems, social withdrawal, the feeling of being constantly threatened, an inability to relate to others and a fundamental change to the individual’s previous personality. Impairment to memory and capacity to articulate traumatic experiences are often observed within this population. Examples of the conditions in which such trauma is likely to occur include prisons, concentration camps, slave labour camps, as well as in brothels,other institutions of organizedexploitation andwithinsome families in which the perpetrator creates arelationshipof coercive control.
New diagnostic categories are emerging to better account for the full range of symptom constellations that can result from multiple and chronic traumatisation. Conventional psychiatric classifications can ‘reduce’ the survivor to a category of symptoms, often discounting the individuality of the experience, as well as its social and political context. The Foundation considers that the complex, human dimension of an individual’s response to these experiences must be given proper consideration.
All clinical assessments are carried out by one of the Helen Bamber Foundation’s senior clinicians, often involving members of the multidisciplinary team, prior to implementation of a care plan. Each clinical assessment uses a range of internationally recognised assessment schedules (Harvard Trauma Questionnaire, Hopkins symptoms checklist etc)”.
The Helen Bamber Foundation’s website address is:
2.2Referrals to the Foundations
For asylum applicants who allege torture, referral to one of the Foundations usually comes via their legal representatives, but it can also be made by GPs, or other health professionals, frontline refugee agencies such as the Refugee Council or, in the case of children, teachers or social workers. This second type of referral can also lead to an internal referral for a medico-legal report.
2.3Children
The Foundations will accept the 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 case owners should be aware that the Foundations have limited clinical resources in this area and this may lead to delays which should be treated as ‘exceptional circumstances’ (see below).
2.4Pre-assessment procedure
Once the applicant has been referred to one of the Foundations, from whatever source, for a medico-legal report (MLR), the referral documentation 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 (see below);
- Invite the applicant to attend a ‘pre-assessment’ interview or
- Move directly to an appointment with a clinician.
Approximately thirty per cent of applications are accepted for pre-assessment. The decision not to invite an applicant in 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 there is nothing to document physically or psychologically or where the injuries have already been documented and the Foundation has nothing to add. Case owners should not draw adverse inferences regarding the credibility of the claim from the Foundations decision not to invite the applicant for an assessment.
Paragraph 161 of the Istanbul Protocol states that:
“The absence of physical evidence should not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars.”
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.
2.5Assessment time scales during the Pilot
The Foundations are committed to working towards significantly reducing the time it takes to offer pre-assessment appointments and to produce the MLRs. During the pilot stage, (until the end of October 2011), Case Owners should bear in mind that the target of producing a MLR within 5 months of the date that the legal representative was notified (the date of Template Letter A) that the case has been placed on hold, is something that the Foundations are aiming for and they are trialling their own new processes aimed at meeting the 5 month target. Case owners should therefore apply some flexibility when considering whether to proceed to the substantive decision stage during this period. However, cases should continue to be actively managed and Case Owners should ensure that regular monthly contact with the applicant’s legal representative is maintained. Through regular contact between UKBorder AgencyCase Owners and legal representatives, any significant delays in either the production of the MLR or the existence of other factors that could reasonably be expected to delay the decision beyond the 5 month target date should be known.