Notification to Legal Representatives of Important Changes to the Medical Foundation, Medico Legal Report Service
Please note there are two important changes to how cases are dealt with by us:
1) The new UKBA Pilot for non detained cases asserting torture or serious harm referred to either the Medical Foundation Medico Legal Report Service or the Helen Bamber Foundation.
This Pilot is limited to cases referred to either Foundation dealt with by 2 UKBA Teams only: the Wales and South West (WSW) asylum team and the Barnet and Enfield and Hackney and Tower Hamlets Local Immigration Teams handling asylum and human rights claims. The Pilot commenced on 18 July 2011 and is expected to run until 31 October 2011.
* Note that the UKBA will not notify a legal representative in advance of a referral being accepted by us (or the Helen Bamber Foundation) that a case is in the Pilot. Therefore, it is vital that the Foundations are notified that a case referred for an MLR is likely to be in the pilot because it is being handled by one of these teams - this should be clearly indicated on the referral form and in accompanying correspondence.
* Note that for all other cases for which the Medical Foundation Medico Legal Report Service or the Helen Bamber Foundation is providing an MLR, the existing Asylum Policy Instruction (API) on the Medical Foundation continues to apply. The API is available here.
All legal representatives need to be aware that the UKBA has issued a new Asylum Instruction for the Pilot entitled ‘Handling Claims Involving Allegations of Torture or Serious Harm in the Non-detained Pilot Process’. (Despite this generic title, the Asylum Instruction and the Pilot only apply to cases involving allegations of torture or serious harm if a referral has been made to either the MedicalFoundation Medico Legal Report Service or the Helen Bamber Foundation). The UKBA has also produced a new Desk Aid for case owners deciding cases in the Pilot. These case-owners have recently received training on the new Asylum Instruction, including the new processes it sets out (described below) and the strengthened guidance it contains for case owners on how to assess MLRs provided by either of the Foundations. Please see attached. We expect this to be on the UKBA website shortly).
You are strongly encouraged to read the Asylum Instruction in full as it changes in important ways the processes by which cases are dealt with by the UKBA, the two Foundations, and legal representatives.
Key procedural changes being tested via the Pilot include:
• It obliges us to take a decision on the referral within 5 working days. This means it is crucial that all of the necessary information is supplied up front with the referral form (see above) at the time of referral. Delays caused by incomplete documentation increase the risk of the client's asylum claim being refused before the Foundation has had a chance to consider the referral properly
• It obliges the legal representative to inform the UKBA immediately within 24 hours if we decide not to produce an MLR; failure to do so may cause UKBA to place the name of the legal representative on a log which will be provided to the Legal Services Commission and to the Immigration Law Practitioners’ Association at regular intervals.
• It also obliges the legal representative to update the UKBA each calendar month about the Foundation’s progress towards completion of an MLR
• It provides a deadline of 5 months for production of an MLR, with provision for this to be extended only in ‘exceptional circumstances’
• If UKBA does not receive the monthly updates from the legal representative OR if an MLR is not submitted within the 5 month deadline (and there are no ‘exceptional circumstances’), UKBA is likely to decide the claim without waiting for the MLR.
Some important points to note from the UKBA Training on assessment of MLRs are:
• Underlining that caseowners should not make clinical judgements
• The MLR will often provide clinical reasons for cases involving inconsistencies or late disclosure and these findings must be given full consideration in order to make a fair and effective decision.
• The expertise of the Foundations qualified doctors to, for example diagnose PTSD, is not to be questioned
• Where a Foundation report is submitted which supports the applicant’s claim, the fact that the applicant has been tortured or subjected to serious harm, should be accepted unless there are significant reasons for rejecting that conclusion despite the content of the report. It should never be argued that no weight has been applied to the report.
• All the evidence should be considered together in the round, including the MLR
• Caseowners are also reminded of the requisite low standard of proof
On a related matter you may also be interested in our recent report ‘Body of Evidence’ which sampled 37 asylum appeal determinations where expert evidence in the form of a medico-legal report (MLR), produced by The Medical Foundation, Medico Legal Report Service was submitted. The report’s key findings include: In almost half of the cases sampled (49%) the appeal was allowed by the Immigration Judge, significantly higher than
the overall allowed appeal rate in asylum cases (around 27%) - highlighting serious deficiencies in UK Border Agency (UKBA) decision-making in claims which involve torture. The overturn rate at appeal increased to more than two thirds (69%) in those cases where the expert report was submitted to the UKBA for an initial decision.
2) The Medical Foundation Medico Legal Report Service new referral form
We have issued a new streamlined referral form to be used for ALL medico-legal report (MLR) referrals, whether for detained (including Detained Fast Track) or non-detained asylum cases. The new referral form makes clear what documentation is needed before an MLR referral will be considered at one of our twice weekly MLR Panel meetings. The aim of the form is to assist us to more quickly process MLR referrals by identifying for you the specific information we need in order to consider an MLR referral. A case cannot be considered without full instruction using the form.
The new referral form for MLRs is available here and MUST be used for all new MLR referrals. DFT referrals are to be faxed. All other referrals are to be posted to the appropriate address (for the Manchester area this is directly to our Manchester address, for all other areas this is to our London address).
It would be helpful if legal representatives could notify colleagues in their firm that this new referral form must be used for all MLR referrals to the Medical Foundation Medico Legal Report Service.
As a reminder our remit is limited to those who have suffered torture or organised violence. We are guided by the definition of torture taken from Article 1 of the United Nations Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment 1988) :
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind,when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.” This does not include combat injuries or certain legal sanctions.
We may also take cases where the perpetrator of alleged torture is a private actor and the state’s indifference or inaction to this kind of act provides a form of encouragement and/or de facto permission (UNCAT 2007 re Article 2)
As far as organised violence is concerned, this is defined as follows:
“The inter-human infliction of significant, avoidable pain and suffering by an organized group according to a declared or implied strategy and/or system of ideas and attitudes. It comprises any violent action that is unacceptable by general human standards, and relates to the victims’ feelings. Organized violence includes ‘torture, cruel, inhuman or degrading treatment or punishment’ as in Article 5 of the United Nations Universal Declaration of Human Rights (1948). Imprisonment without trial, mock executions, hostage-taking, or any other form of violent deprivation of liberty, also fall under the heading of organized violence (World Health Organisation 1986)
When we consider accepting a referral, there are other criteria we use as well as remit. For example, we also ascertain if there is something we can usefully document whether physically or psychologically .This is significant as certain methods of torture do not leave marks, often by design. An individual can also be particularly psychologically resilient. In this context it is important to note that absence of evidence of torture does not mean that torture has not occurred.
Finally we have other considerations which go to targeting our limited resources most effectively. Consequently, we may decline a referral if your client’s injuries have already been documented and the Foundation has nothing further to add, or, for instance, where we cannot match the client’s testimony to the injury, where torture or serious harm is not in dispute and where we deem another agency would be able to provide a more appropriate service.
Legal Officer, MLR Team, London
Last Updated on Friday, 12 August 2011 08:09