INTRODUCTION: It is a significant challenge for asylum claimants to provide evidence to support their application for international protection and to demonstrate that their stated fear of persecution in their home country is well-founded.

People rarely have access to documentation that proves they have been detained and ill-treated by state authorities, and flight from their home country may have been chaotic and unplanned. The journey to the country where they seek refuge may have been in the hands of people smugglers who routinely confiscate and retain documents that could prove identity, nationality or other aspects of the person’s claim.

In refugee status determination the burden of proof falls on the asylum claimant to establish why they need protection. However, given the grave implications of getting a decision wrong – torture, other types of persecution or even death if they are forced to return to the country they fled from – the standard of proof is relatively low, compared with criminal or even civil proceedings. The standard is described as “a reasonable likelihood” and, according to UK case law, applies to all factual aspects of an asylum claim, in which both past persecution and future risk of persecution need to be demonstrated.

In the UK, asylum claimants give oral testimony in an interview with a Home Office asylum caseworker, in which they must explain in detail how they have been treated in the past and substantiate their fear of further persecution in the future, if returned to their home country. This primary evidence is considered in light of what is known about their country of origin. Asylum caseworkers refer to country of origin information and guidance produced by the Home Office concerning the human rights record of the country and the treatment of people with a similar profile to the claimant to assess the plausibility of their claim, the credibility of their testimony and whether they might be at risk in the future. However, this information is rarely specific to the person.

For those who claim to have been tortured in the past there is an additional form of evidence that may be submitted to the Home Office – a medico-legal report. These expert reports document for the individual claimant any physical and psychological evidence of torture, in accordance with internationally accepted guidelines and standards set out in the United Nations Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment known as the Istanbul Protocol, and give an expert opinion on the consistency between this clinical evidence and the person’s account of torture.

For these purposes, the clinician who produces the medico-legal report must comply with the duties of an independent expert. This means, among other things, that they must not simply accept the account given to them by the claimant and must thoroughly and objectively assess this account in line with their clinical experience and these international guidelines and standards.

In the UK an applicant’s legal representative may submit a medico-legal report to the Home Office at the initial stage of the asylum decision-making process or as part of further submissions for a new asylum application (known as a “fresh claim”). A report may also be submitted for an appeal, should the asylum claim be refused at the initial stage, and will be considered by an Immigration Judge in the Immigration and Asylum Chamber of the Tribunal.

It is for decision-makers to decide how much weight to give this evidence in accordance with policy guidance, but a medico-legal report may be very helpful where there is little else available to substantiate the factual elements of a claim, and given that the effects of torture may make it particularly difficult for survivors to give evidence that is coherent and comprehensive within the setting of an interview with a Home Office caseworker.

Freedom from Torture operates one of the largest and most well-respected forensic torture documentation services in the world, known as the Medical Foundation Medico-Legal Report Service.5 Each year, our specialist clinicians (mainly doctors) produce medico-legal reports for hundreds of torture survivors for consideration as part of their asylum claim.

In recognition of our expertise and in response to evidence of the poor treatment of medico-legal reports by asylum caseworkers, demonstrated by a very high overturn rate of 69% on appeal6, the Home Office issued an Asylum Policy Instruction in January 2014 setting out how medical evidence from the Medico-Legal Report Service at Freedom from Torture (and the Helen Bamber Foundation) should be treated. An excellent training programme was designed to help caseworkers implement this policy correctly, but unfortunately it was not rolled out8, and there has been no systematic monitoring of compliance with the Asylum Policy Instruction over the intervening years.

Evidence from this research shows that poor treatment of expert medical evidence by asylum caseworkers persists, signified by an even higher decision overturn rate of 76% on appeal for cases included in the research, involving asylum claims for which we prepared a medico-legal report that were refused by the Home Office between January 2014 and December 2015…