Psychological Reports, Trauma and Testimony in Asylum Cases: Analysing the Case Law of the Committee Against Torture and the Human Rights Committee

By Liz McCauley, LLM student, University of Groningen,  e.r.mccauley student.rug.nl

Extensive research in the fields of both medicine and psychiatry have shown the profound effect that trauma can have on an individual’s mental health, and, crucially in this case, on their memory and capacity to recall detail. (Care-Full Report, p.42-85) The research introduced hereunder aims to analyse the practice of the Committee Against Torture and the Human Rights Committee in cases where psychological evidence of trauma has been submitted by the applicant, while inconsistencies in their testimony have been highlighted by the State Party as reason to doubt the credibility of the applicant’s asylum claim.

The International Organization for Migration has reported that over 1,004,356 migrants survived the treacherous journey by sea to arrive in Europe in 2015 and another 44,611 have made the arduous trip by land, numbers, however, which represent only those who registered their arrival with the relevant authorities. Of those survivors, 942,400 have claimed asylum in the EU, exerting pressure on the national immigration authorities to process such an enormous quantity of requests with ever greater efficiency and speed, while still ensuring that those in genuine need of protection are granted such and that vulnerable individuals do not fall through the cracks.

In order to be granted asylum, and with it refugee status, according to Article 1(A)(2) of the 1951 Refugee Convention an individual will need to convince the respective national immigration authorities that he, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”. However, providing a convincing account of one’s asylum claim can be a task fraught with challenges. Here seeking refuge, many of those who make it to Europe will have fled grave danger in their own countries and many will have already suffered great personal hardship, violence and loss prior to arrival in the EU, which can lead to trauma-related mental health conditions, including depression, anxiety, dissociative and personality disorders as well as post-traumatic stress disorder. (Care-Full Report, p. 42-85) The symptoms of these conditions can entail significant memory disturbance, as well as acute emotional pain when trying to recall details of the traumatic events. (Care-Full Report, p. 42-85) Furthermore, given the very nature of refugee status determination proceedings, there is often a sore lack of documentary and supplementary evidence available to corroborate an individual’s account of their claim.

In these circumstances an individual’s own testimony can form the central, and in many cases decisive, factor on which a decision as to whether or not to grant protection will be made. Therefore, the failure to disclose crucial information, to recall details of events, or the mixing up of facts at this early stage and subsequently, may serve to damage the perceived credibility of the applicant and therefore their claim. (Care-Full Report, p.57) Keeping in mind the pivotal importance, therefore, of an individual’s testimony on the outcome of their asylum request, it is vital that any factor which may jeopardise their ability to provide a clear and coherent account of their claim, be taken adequately and seriously into consideration by authorities at all levels of the proceedings. Not to do so could be argued in some cases to amount to complicity in the veil of silence and impunity plaguing survivors of torture, and in all cases would mean running the risk of sending a vulnerable individual back to an uncertain fate.

For this reason, we are currently carrying out research aimed at identifying and analysing the cases which have come before the Committee Against Torture and the Human Rights Committee, wherein psychological evidence of trauma has been submitted by the applicant and inconsistencies in testimony have been highlighted by the State Party as reason to doubt the applicant’s credibility. This research aims to incorporate and build on the findings of the 2006 collaboration between Pharos, Amnesty International and the Dutch Council for Refugees, which led to the publication of a report titled “Care Full: Medico-legal Reports and the Istanbul Protocol in Asylum Procedures”, already referenced above. The Care-Full Report provided an overview and analysis of the case law of the Committee Against Torture in asylum cases involving psychological reports and the effects of trauma on testimony up until 2006. Our current research will continue this Committee Against Torture case law analysis up until the present day and carry out the same in respect of the Human Rights Committee.

By analyzing asylum cases which make reference to PTSD and other trauma-related mental health conditions, this research will be able to draw comparisons and conclusions on the stance taken by both the CAT and the HRC toward such cases over time and to determine in front of which of the two bodies an asylum seeker suffering the psychological effects of trauma would be best advised to bring their case. It is hoped that this detailed examination of the case law of both the CAT and the HRC will provide not only an insight into the approaches of the two bodies themselves, but also a better understanding of the practice of State Parties and domestic immigration authorities in asylum cases where psychological reports are submitted that document mental health difficulties stemming from trauma experienced.

This research aims to provide answers to the the following questions:

1. To what extent are the psychological effects that trauma can have on an asylum seeker’s ability to provide a clear and coherent account of their claim recognized by the Committee Against Torture and the Human Rights Committee in expulsion cases.

2. The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, also know as the Istanbul Protocol, provides authoritative guidance on the documentation of the psychological evidence of torture. To what extent is the Istanbul Protocol being employed by both the Committee Against Torture and the Human Rights Committee, as well as State Parties, to guide their assessment in cases where psychological evidence of trauma has been submitted.

3. Based on the findings of the two previous questions, if the link between the psychological effects of trauma and difficulty in providing accurate testimony are not being afforded adequate recognition, and the guidance provided by the Istanbul Protocol in this regard is not being effectively employed, what can be done to create a more sound legal approach toward trauma-related mental health conditions and testimony in asylum cases?

We look forward to sharing the results of this study with you in the near future!