Note submitted by the Medical Foundation
for the Care of Victims of Torture
The Medical Foundation for the Care of Victims
of Torture welcomes the opportunity to put before the Home Affairs
Select Committee one of the concerns of our organisation in the
hope that the Select Committee will see fit to address the matter
with the Secretary of State.
The Home Office IND refuse some Medical Foundation
clients' applications for asylum, despite the presence of medical
evidence of torture, on the grounds that there are apparent discrepancies
between the medical report and other non-medical evidence, calling
into question the applicant's credibility.
We believe that before an application is refused,
any serious discrepancies that form the basis for issuing that
refusal should be put in writing and at an early stage
to the applicant through his or her legal representative so that
the applicant can respond in a measured way. Matters regarding
discrepancies between the medical report and other evidence, for
example, should be carefully argued and recorded.
We have raised this matter with the IND and
have received the following reply, dated 10 March 1998:
"We also discussed the issue of allowing
applicants themselves the opportunity to resolve discrepancies
prior to any appeal. As you know, the asylum study has been looking
at our procedures and the Government is committed to making whatever
changes are necessary in the light of the study to improve the
efficiency and effectiveness of the system. In the meantime I
can confirm that there is no difference in our handling of port
and in-country applications in this respect. It is normal good
practice to address any apparent inconsistencies in an applicant's
account at the substantive asylum interview—for adult asylum
seekers—whether this is conducted by an asylum caseworker
or an immigration officer.
There is then an opportunity to put forward further
representations in writing which are considered by the asylum
caseworker in both port and in-country cases. It is open to the
caseworker to seek clarification of particular issues, or to conduct
or request a further interview, if the information available is
insufficient to reach a decision. However, this is rarely necessary.
(The procedure for children is, of course, different; the written
exchange of information being a substitute for the interview,
as the normal basis for obtaining evidence in support of the claim,
to avoid the need to subject this particularly vulnerable group
to an interview.)"
The Medical Foundation believes that apparent
discrepancies should be addressed:
(a) before the IND finalises its decision,
and not simply "prior to any appeal" (ie by means of
post-decision representations);
(b) in writing, so as to make clear and precise
the grounds for intended refusal:
(c) mandatorily, with the onus on the caseworker
to raise the discrepancies that cause him or her to doubt the
applicant's veracity or credibility.
In the context of the current asylum review,
it would be helpful to establish such a standard procedure by
which the applicants themselves can respond to alleged or apparent
discrepanices before the final IND decision to refuse an application
is made, rather than waiting for the more expensive appeal to
a Special Adjudicator to sort out the matters in dispute. In the
view of the Medical Foundation, it would be useful to make this
procedure standard IND practice with regard to all applicants,
whether port or in-country, whether child or adult.
In fact, a similar procedure was in place prior
to the Asylum and Immigration Appeals Act 1993. The pre-1993 procedure
called for just such a written record of apparent discrepanices
to be presented to the applicant before a final decision was made.
It was thought to be in the interest of natural justice to make
a judgement about a person's veracity and credibility only after
giving him an opportunity to address the case-worker's surmises,
doubts and judgements. With the introduction of an automatic right
to appeal provided for in the 1993 Act—in itself a very
positive step—it was apparently thought that natural justice
would be served at a later stage, during the appeal itself, when
a Special Adjudicator could rule on discrepancies. In practice
this has been an expensive reallocation of natural justice.
We point out that in accepting, on behalf of
the Government, one of the key recommendations from Sir David
Ramsbotham's recent report on the Campsfield House detention centre
for asylum seekers, Lord Williams of Mostyn recognised the need
for written reasons to be given to detainees:
"I believe—and I entirely concur with
what all your Lordships have said—without exception that
the giving of written reasons is extremely important on at least
the following bases. First, I believe quite firmly that if you
have to give written reasons it improves the decision-making process,
whether or not those reasons are to be published or scrutinised
in a judicial process. But it is extremely important that those
written reasons should be provided to any detained person so that
he or she will know and have at least a degree of moral consolation
that their detention is not an unthinking exercise of administrative
power [emphasis added]. It is an extremely important step
that the Secretary of State has immediately accepted that recommendation.
I do not believe that it can be overstressed." (Lords Hansard
text, 29 April 1998, Columns 356-357).
We believe that if it is imperative to give
written reasons for detention to a detained asylum seeker, it
is , by analogy, equally imperative to give an asylum seeker written
reasons for refusing his or her claim to asylum in a fairer and
more meaningful way. By fairer and more meaningful, we mean at
as early a stage in the process as possible so that he or she
can address the apparent discrepanices that have caused the IND
to call his or her character and credibility into question. While
we accept that there is an "opportunity" at later stages
to address these apparent discrepanices, we believe that there
should be an automatic procedure, early in the process, to ensure
full and fair access to justice.
The Medical Foundation recommends to streamline
the procedure for examining apparent discrepanices in asylum claims
by requiring contact in writing prior to a final decision to refuse,
between the IND decision-maker on the one hand and the applicant
and his or her representative on the other. Apparent discrepancies
could be addressed and either dispelled or confirmed. The former
would probably lead to a positive decision; the latter would clarify
the reasons for refusal and provide part of the appeal bundle
if the refusal is challenged.
QUESTION TO
THE MINISTER
Would it not streamline the asylum determination
process, making it both fairer and faster, to require that the
IND, as a standard procedure, raise its concerns about discrepancies
in an asylum seeker's application with the asylum seeker's representative,
in writing, and before a final determination is made?
Sherman Carroll
Director of Public Affairs
8 May 1998
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