Best Practice for Mental Health in Asylum Claims

Supporting the mental health of asylum seekers is essential, as they often endure immense stress from past trauma, the complexities of the asylum process, and the uncertainty surrounding their future.

This note will offer guidance on how to effectively advocate for them and highlight key factors to be mindful of.

Assessing vulnerability and capacity to give instructions

Practitioners need to recognise the extra care required for these individuals and understand how their vulnerability can affect the outcome of their claim. As noted by the Royal College of Psychiatrists in their report:

Common mental illnesses in displaced adults include PTSD (31%), depression (31%), anxiety disorders (11%), and psychosis (1.5%). There are also high rates of distress, grief and PTSD in displaced people under the age of 18, especially in the context of war and trauma.

Statistics indicate that mental health issues stem from factors before, during, and after migration. It can be challenging to determine whether difficulties in processing information are due to a lack of formal education or the effects of trauma caused by persecution or other psychological factors.

In some instances, practitioners may suspect that their client is not only incapable of providing coherent evidence but may also lack the capacity to understand or fully participate in their appeal hearing. As the Senior President observed in AM (Afghanistan) v SSHD [2017] EWCA Civ 1123:

…The SRA practice note of 2 July 2015 entitled 'Meeting the needs of vulnerable clients' sets out how solicitors should identify and communicate with vulnerable clients. It also sets out the professional duty on a solicitor to satisfy him/herself that the client either does or does not have capacity…

The importance of properly evidencing concerns surrounding capacity was underlined in SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC) where assertions about an Appellant's capacity to give instructions in the context of an adjournment application were found to have been made without basis.

KK v CC [2012][1] set out how capacity to make a particular decision should be assessed:

“The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed…As the Code of Practice makes clear, each person whose capacity is under scrutiny must be given ‘relevant information’ including ‘what the likely consequences of a decision would be (the possible effects one way or the other)’. That requires a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which the option would be supported…”

Working with Interpreters

Interpreters play a key role in translating information to practitioners. Where possible there should be the continuity of having the same interpreters throughout the case to ensure that the client is at ease and to be familiar with the people around them so as to not increase their mental health condition(s).

Clients tend to be embarrassed, scared or feel that they cannot open up as the interpreter can speak their language and are from the same community/country as them. Re-assurance to the client is necessary to ensure confidentiality is adhered to in this regard. Practitioners should explain the service they are providing to the client, the aim of the consultation and the expectations they have of the interpreter.

It is also important that the interpreter's English reflects the manner in which your client speaks as accurately as possible. The interpreter may be able to add to your understanding of conditions in her country of origin. That information may well help you in presenting the case. However, as noted above, the interpreter must be reminded to differentiate clearly between comment or additional information on the one hand and on the other, the direct translation that is his/her primary task.

Questioning Techniques

The open-focussed-closed method of questioning (sometimes known as the 'funnel technique') is usually the safest means of eliciting information. Practitioners should begin with a completely open question ('What happened?'), then follow up with more focussed questions ('Can you explain why you did that?') which will guide their client towards areas that need to be explored but still require a substantial response. End with closed questions ('Could you see anyone else?') to check the facts you need to put in the statement and clarify the chronology. Then return to an open question to ensure that nothing has been missed, e.g. 'Did anything else happen?' Move on to the next point with another open question, 'What happened next?' Never take the first answer you get without testing it.

Women and Children

There is reference to the UN Convention on the Rights of the Child 1989 setting international standards, which should be complied with, in particular Article 3 which states that the ‘interest of the child shall be a primary consideration.

Women and children asylum seekers often face unique mental health challenges due to heightened vulnerability to trauma, abuse, and exploitation both before and during migration. Best practices for supporting their mental health involve providing trauma-informed, gender-sensitive care that acknowledges the specific needs of these groups. Practitioners should ensure that women and children are given a safe environment to express their experiences, offer specialized counselling when necessary, and address any cultural or language barriers. Additionally, involving experts in child psychology and gender-based violence can further enhance the quality of care and advocacy, ensuring that their mental health needs are adequately addressed throughout the asylum process

Barriers to Mental Health

Cultural Barriers

There can be several reasons why a client is not believed or the consequences of such, Objective evidence shows that mental health in Islamic countries are not treated or looked upon well. The Human Rights Watch Reports[2] notes that:

many people in countries such as…Iraq… believe that psychosocial disabilities are the result of possession by evil spirits or witchcraft

Furthermore, another report from Reliefweb[3] states that:

Yet, intertwined histories of stigma, insufficient training in mental healthcare for physicians, and subsequent lack of treatment capacity have handicapped efforts to build Iraqi mental healthcare capacity or deliver psychosocial services to traumatized communities.

In addressing the mental health of asylum seekers, practitioners must navigate complex cultural barriers, including stigma, language difficulties, and differing perceptions of mental health. To effectively support this population, it is essential for practitioners to adopt a culturally competent and trauma-informed approach, build trust, and utilise professional interpreters when necessary. By understanding and respecting cultural differences, practitioners can foster a more inclusive and supportive environment that encourages asylum seekers to engage in mental health care, ultimately helping to mitigate the impact of trauma and improve their well-being.

Systemic Barriers

Often during migration, asylum seekers come with the bare necessities and will not have a record of their medical needs with them. As such, any treatment, medications and interventions are difficult to continue with the lack of. Assess with ether or not they have scars, forgets things often, talk about health problems and instruct various experts on their behalf.

Frequent change in s.95 and s.4 Home Office support causes disruption to the provisions received by their local GP and local healthcare provider. As legal representatives, challenge the Home Office on why constant change in accommodation is required, assess current housing needs linked to any medical concerns.

Conscious and subconscious biasness towards asylum seekers in light of “Stop the boats” protests and Governmental responses for net migration prevents affective treatment. Take affective instructions and act accordingly should such situations arise.

Digital poverty, which prevents individuals having access to facilities, and further help online prevents them from undertaking their own effective research and knowledge into their issues. Direct the asylum seekers to local libraries for free access to computers. City of Sanctuary UK[4] has listed organisations that can help.

Where can I get further help?

An updated SRA practice note[5] is available online and you should consult it if you have doubts about your client's capacity.

The Bar Standards Board's ‘Vulnerability Good Practice guidance for immigration clients’[6], published in April 2018, also states in respect of barristers that

"If you entertain a reasonable doubt that a client lacks capacity to give proper instructions, it is your professional duty to satisfy yourself that the client either does or does not have capacity as quickly as possible"

It is crucial for practitioners to stay informed about the latest guidelines when dealing with vulnerable clients, especially in matters related to capacity. Consulting the updated SRA practice note is essential whenever there are doubts about a client's ability to provide instructions. Additionally, the Bar Standards Board's practice guidance emphasises the professional responsibility to swiftly determine a client's capacity. Ensuring clarity on this issue allows practitioners to effectively advocate for their clients while upholding ethical standards and safeguarding the integrity of the legal process.

Conclusion

Supporting the mental health of asylum seekers is not only an ethical obligation but a critical aspect of ensuring fair and just asylum claims. Practitioners must be attuned to the complex vulnerabilities of this population, recognizing that mental health challenges often arise from traumatic experiences before, during, and after migration. By employing culturally competent, trauma-informed approaches and effectively working with interpreters, legal representatives can better advocate for their clients' needs.

Furthermore, addressing systemic barriers—such as frequent changes in housing, lack of medical records, digital poverty, and bias—requires vigilance and proactive engagement. Practitioners should challenge disruptive practices and ensure that asylum seekers receive the continuity of care and support they deserve. In doing so, they can help mitigate the impact of trauma and ensure that these individuals are treated with dignity and respect throughout their asylum process.

By adopting best practices outlined in professional guidance, such as the SRA practice note and Bar Standards Board guidance, practitioners can ensure that the most vulnerable individuals receive the care, representation, and support needed to navigate the complexities of asylum claims.

References

[1] KK v CC [2012] EWCOP 2136, para. 68

[2] https://www.hrw.org/report/2020/10/06/living-chains/shackling-people-psychosocial-disabilities-worldwide

[3] https://reliefweb.int/report/iraq/iraqs-quiet-mental-health-crisis

[4] https://cityofsanctuary.org/resources/for-sanctuary-seekers/it/

[5] https://www.sra.org.uk/solicitors/resources/specific-areas-of-practice/meeting-needs-vulnerable-people/

[6] https://www.barstandardsboard.org.uk/for-barristers/resources-for-the-bar.html