Information compiled by: Courtney Welton-Mitchell

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

  • Credibility: Trauma, and the Adversarial Adjudication of Claims for Asylum
    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.