TS v The Secretary of State for the Home Department

Court and Tribunal-appointed interpreters perform a vital role in our justice system. They provide the means of communication between the judge and the other parties and participants in proceedings w here a litigant or witness cannot satisfactorily communicate in the language of the court or tribunal (usually English) . The present case examines what should happen when, during a hearing, questions arise about the accuracy of the interpretation being provided by the interpreter, whether it be from English to the language of the party or witness ; or from that language to English.

In the present case, the hearing took place before a Judge of the First-tier Tribunal, sitting at Hatton Cross in September 2018. The appellant was challenging the decision of the respondent to refuse her protection claim. That claim involved the appellant being a citizen of Eritrea who said she had a well-founded fear of persecution, if returned to that country, because of her Pentecostal Christianity. She left Eritrea in 2013, staying in Djibouti from then until September 2016, when she embarked on a journey to Europe that eventually led her to the United Kingdom, by way of Switzerland and France.

The judge had this to say about what happened at the hearing:-

At paragraph 8, the judge said that the time came when he :

At paragraph 9, the judge provided additional reasons for his decision not to adjourn; namely , that any deficiency in interpretation had not, in his view, caused the thrust of the appellant’s case to be misunderstood; that any lengthy or complicated question had been required to be split into simple component parts; that the judge had clarified any apparently equivocal answer by the appellant, via the interpreter; and that the concerns expressed to the judge about interpretation were “vague and non-specific” in nature.

The judge’s decision then turned to an analysis of the appellant’s credibility. The judge found this to be wanting. In large part, the judge’s adverse credibility findings were based upon inconsistencies within and between her various written witness statements and interview record; and on assertions therein which the judge regarded as nonsensical or contrary to the experience of the Tribunal.

At paragraph 43 (ii), however, it is apparent that the judge rejected aspects of the appellant’s oral evidence at the hearing, such as that she was given €300 by the father of her child , which she claimed had she paid to an agent:-

At paragraph 43(iii), the judge concluded that –

The judge regarded that assertion as “self-serving evidence of the type only to be expected from somebody who claims that the outcome of h er asylum claim depends, at least to a significant extent, upon that evidence”.

Overall, the judge concluded, at paragraph 43(iv) , that the “The appellant’s credibility and reliability as a witness is so compromised that I am unable to place any weight upon it, save to the extent that it is corroborated by reliable testimony”. The judge then explained why the supporting evidence from witnesses who attended the hearing did not materially assist the appellant. He accordingly dismissed her appeal.

C ounsel who had appeared for the appellant before the judge submitted written grounds of appeal to the Upper Tribunal. Ground 1 asserted that there had been procedural unfairness as a result of refusing to adjourn the appeal hearing. Reliance was placed upon the decision of McCloskey J in Nwaigwe (Adjournment: fairness) [2014] UKUT 00418 (IAC) where, at paragraph 5 , it was said:-

Ground 1 pointed to counsel ’s note of the hearing, which made it evident that, at the conclusion of cross-examination of the appellant, counsel had been allowed to confer with the appellant and the Amharic-speaking interpreter provided by her instructing solicitor in order to attend the hearing and assist counsel with interpretation . Following that conference, ground 1 asserted that the appellant’s counsel had not put “vague and non-specific concerns” to the judge about the interpretation. Furthermore, the judge had failed to take into account the fact that the appellant herself had said at the hearing that her answers to the Presenting Officer’s questions were not being accurately interpreted. Ground 1 said t he judge “fails to address this at all in his decision . He proceeds on the simple basis that it was only on the basis of the A’s interpreter and the A’s legal representative’s concerns”.

Ground 1 also submitted that the judge had taken irrelevant factors into account in deciding the adjournment applications; namely, that the consequence of abandoning the hearing would be wasted costs, public expense and a burden for the Tribunal system; that some of the “problem” might have arisen from the fact that the appellant spoke Tigrinyan; and that the judge had also stated to counsel during the hearing, when interpretation issues were raised , that “this is not good for your case as your client is meant to understand Amharic”.

Ground 2 concern ed an alleged failure by the judge to take into account relevant post-hearing evidence. This was a witness statement, from the appellant’s counsel , which was attached to the grounds of appeal that had also been sent to the First-tier Tribunal on 26 September 2016, for the urgent attention of the judge concerned, three working days after the hearing on 21 September. The judge’s decision was not promulgated until 2 October 2018.

C ounsel ’s witness statement contains the following:-

Ground 3 contended that the judge had made “multiple errors” in respect of the appellant’s evidence including that “nowhere in her evidence [did she say] she paid €300 to an agent to travel from Switzerland to France”. Rather, the appellant’s account was that the money was paid to make the journey from France to the United Kingdom, which required the services of an agent.

Ground 4 complained that the judge had failed to give the appellant fair notice that he was going behind the concession made by the respondent, concerning her Pentecostal Christianity. There had been no suggestion that the respondent considered that the appellant would not wish to prosely ti se.

Ground 5 submitted that the judge had failed to follow the vulnerable witness guidance, whilst ground 6 submitted that he had failed to take into account or place relevant weight on the appellant’s answers in respect of her knowledge of Eritrea, at her asylum interview.

Ms Fitzsimons has provided a considerable amount of helpful information on the subject of interpreters. This has been supplemented by Mr Lindsay. Both make reference to what is said about interpreters in the Best Practice Guide to Asylum and Human Rights Appeals (Henderson, Moffatt and Pickup) which is to be found at https://www.ein.org.uk/bpg/chapter/34#toc2 .

A National Register of Public Service Interpreters (NRPSI) was established in 1994, administered by the Institute of Linguists, with the support of the Home Office and the Ministry of Justice (as it now is). The Best Practice Guide says:-

From 31 October 2016, i nterpret ation s ervices for all courts, tribunals and prisons have been supplied under contract with thebigword Group Ltd and Clarion UK Ltd. The bigword Group Ltd provides face to face, telephone and video remote interpreting services for spoken languages, whilst Clarion UK Ltd provides sign language services.

The qualifications and experience required of interpreters vary depending on the category of the booking and the language service in question required. The Ministry of Justice Guide to Language and Translation Services in Courts and Tribunals differentiates between “complex written”, “complex other” and “standard” services. There is also differentiation between languages: “standard languages” (41); “special services” (7 non-spoken languages); and “languages permitted exceptional qualifications requirements”; that is to say, languages without DPSI. There are 152 such languages, which fall outside the standard languages category. The acronym DPSI refers to the “Diploma in Public Services Interpreting”. The upshot is that where a language falls under the “exceptional qualification requirements”, interpreters are not required to have a DPSI. This appears to be on the basis that such languages are less frequently spoken.

The Language Shop (London Borough of Newham) runs a quality assurance service in respect of the Ministry of Justice’s language contract. The workings of this are described in a document entitled a “ g uide to q uality a ssurance of the M O J L anguage s ervices c ontract”, which “is intended to raise standards and keep them high, resulting in a more reliable, accurate safe provision”. The L anguage Shop guide provides for a complaint s procedure, that can be made to the supplier directly or to the Language Shop, but not to both. The Language Shop holds a register of linguists o n behalf of the M O J. Only those linguists whose details are included on this register are permitted to work on MoJ bookings made under the language services framework . If a linguist fails any part of the quality assessment they must be suspended or removed from the register. Assessments are carried out via so-called “mystery shopping” assessments, spot check assessments and in - person assessments.

Amharic is one of the “languages permitted exceptional qualifications requirements (languages without DPS I) ”. The qualifications for a standard booking in respect of an interpreter in such a language are set out at A nnex E to the MoJ Guide .

Ms Fitzsimons has also provided information regarding the qualifications of interpreters who are funded by the Legal Aid Agency in order to assist an appellant’s representative. The result of Ms Fitzsimons’ investigations is that there appear to have been no specific requirements regarding interpreters in this regard before September 2018. In relation to matters opened in or after September 2018 , however, the Standard Civil Contract Specification makes provision about the qualifications of interpreters. Paragraph 2.48 of the Specification states that the representative may not instruct an individual to provide interpretation services in connection with c ontract w ork unless the individual holds at least one of a number of specified qualifications. These include “ B asic I nterpreting Q ualification”, C ommunity I nterpreting L evels 2, 3 and 4 and the UK Border Agency Certificate.

Paragraph 2.50 provides that this requirement may not apply in “exceptional circumstances”, which include where there would otherwise be undue delay and/or increased costs; where the client requests an interpreter of a specific gender and such a request cannot reasonably be accommodated otherwise than by the use of a non-qualified interpreter; and where there is a rare language or dialect which cannot reasonably be accommodated otherwise than by the use of a non-qualified interpreter.

In such cases, the representative “must be satisfied that the interpreter has a suitable level of expertise and prepare a file note setting out the justification”.

In the present case (which was opened before September 2018) the appellant’s solicitors engaged Mr Beyene, through an agency. The agency stated that Mr Beyene had worked for them for twelve years and had twenty years’ experience as an interpreter.

There is no reason of which we are aware to regard the current contractual arrangements for the provision of interpreters at tribunal hearings as providing anything other than an appropriate set of quality controls , designed to ensure that appellants and witnesses who require an interpreter to give their evidence can do so (and be questioned about it) in a way that satisfies the requirements of justice. In particular, t he rational e for permitting “exceptional qualifications requirements” instead of a DPSI is cogent. The role played by the Language Shop is plainly important, both as regards its general checks on registered interpreters and also in dealing with specific complaints about an interpreter. In short , the present system provid es a satisfactory level of confidence that, as a general matter, interpreters who are engaged by the Immigration and Asylum Chambers to translate at hearings are adequately qualified to undertake that task.

Although it is impossible to provide authoritative answers to the range of questions concerning issues with interpreters that may nevertheless arise from time to time at hearings it is, nevertheless, possible to set out the following general principles.

As the judgments in Perera show, an appellate tribunal will usually be slow to overturn a judge’s decision on the basis of alleged errors in, or other problems with, interpretation at the hearing before that judge. Weight will be given to the judge’s own assessment of whether the interpreter and the appellant or witness understood each other ( Perera , paragraph 26).

Such an assessment by the judge should normally be undertaken at the outset of the hearing by the judge (a) putting questions to the appellant/witness and (b) considering the replies. Although he or she may not be able to speak the language of the appellant/witness , an experienced judge will usually be able to detect difficulties; for example, an unexpected or vague reply to a specific question that lies within the area of knowledge of the appellant/witness (such as asking the person concerned as to how and by what route they travelled to the hearing centre); or a suspiciously terse translation of what has plainly been a much longer reply given to the interpreter by the appellant/witness. Non-verbal reactions may also be factored into the judge’s overall assessment. It is difficult to be any more specific; we are, here, very much in the realm of judge craft.

Where an issue regarding interpretation arises at the hearing, including the situation where an interpreter appointed by the appellant’s representatives , and present at that hearing , considers the Tribunal-appointed interpreter has inadequately translated a question or answer, the matter should be raised with the judge at the hearing so that it can be addressed there and then. Even if the representatives do not do so, the judge should act on his or her own initiative , if satisfied that an issue concerning interpretation needs to be addressed.

In many cases, the issue will be capable of swift resolution, with the judge relying upon the duty of the parties under r ule 2(4) of the Procedure Rules o f both of the Immigration and Asylum Chambers to help the Tribunal to further the overriding objective of dealing with the case fairly and justly. For instance, it may be that clarification of a particular word or phrase, which is thought to be causing difficulties, will enable matters to p roceed smoothly. In some cases, as Hodge J envisaged, breaking questions up into short component parts will be sufficient (as the judge attempted to do in the present case).

A challenge by a representative to the competence of a Tribunal-appointed interpreter must not be made li ghtly . If made, it is a matter for the judge to address, as an aspect of the judge’s overall duty to ensure a fair hearing. Amongst the matters to be considered will be whether the challenge appears to be motivated by a desire to have the hearing aborted, rather than by any genuine material concern over the standard of interpretation .

It will be for the judge to decide whether a challenge to the quality of interpretation necessitates a check being made with a member of the Tribunal’s a dministrative staff who has responsibility for the booking of interpreters. The submission to that effect, recorded in paragraph 17 of Perera , was based on the now - withdrawn G uidance N ote of 2002.

Under the current arrangements, it may be possible for appropriate enquiries to be made by the a dministrative staff of the Language Shop as to whether the interpreter is on the register and whether there is any current disclosable issue regarding the interpreter. The initiation of any such enquiries during a hearing is, however, a matter for the judge. In practice , it is unlikely that it would be necessary or appropriate to take such action. In most cases, if the standard of interpretation is such as seriously to raise an issue that needs investigating, the point will probably already have been reached where the hearing will have to be adjourned and re - heard by a different judge (using a different interpreter).

On an appeal against a judge’s decision, even if it is established that there was or may have been inadequate interpretation at the hearing before the judge, the appeal will be unlikely to succeed if there is nothing to suggest the outcome was adversely affected by inadequate interpretation. This will be the position where the judge has made adverse findings regarding the appellant, which do not depend on the oral evidence ( Perera , paragraphs 24 and 34).

It is important that Tribunal-appointed interpreters are able to discharge their functions, to the best of their abilities. It is part of the judicial function to enable an interpreter to do this by, for instance, preventing a party or representative from behaving in an intimidating or oppressive way towards the interpreter. By the same token, the Tribunal and the parties are entitled to expect that the interpreter will interpret accurately, regardless of what he or she personally thinks of the evidence they are being required to translate.

With these principles in mind, we return to the specifics of the appellant’s case. It will be evident from what we have said that there is a good deal in the judge’s decision that is indicative of what we regard as best practice. The judge, who is experienced in these cases, formed the view that any deficiencies in interpretation which may have taken place were not such as to have “ caused the thrust of the appellant’s case to be misunderstood, altered or inadequately expressed” (paragraph 9(i)).

On the other hand, it is clear from what the judge said in paragraph 2 of his decision that he regarded the presence of the interpreter instructed by the appellant’s representatives as generally problematic and, in particular, as an unnecessary expenditure of public funds. That view appears to have coloured the judge’s attitude towards the concerns which counsel for the appellant expressed, on the basis of what she was being told by the appellant’s interpreter about the way that the Tribunal-appointed interpreter was translating the oral evidence .

We also accept that the judge failed to have regard to the fact that the concerns regarding interpretation were not, in fact, emanating solely from the appellant’s interpreter but that the appellant herself, who understood some English, had said to the judge that her answers were not being accurately interpreted. Whilst, as we have explained, an appellate tribunal will generally be slow to interfere with a judge’s conclusion that issues regarding interpretation had no material effect on the overall thrust of the evidence, the judge does need to deal with the nature of the complaints being made. He re , it was material that the complaints were coming from two different sources (namely, the appellant and the interpreter engaged by the solicitors) .

The appellant’s grounds of application assert that the judge was wrong to refuse the adjournment application by reference to the fact that the abandonment of the hearing would cause wasted costs, public expense and a burden for the Tribunal system. As we have seen, t he grounds also complained that the judge indicated that some of the “problem” encountered by the appellant with the interpreter might have arisen from the fact that the appellant speaks Tigrinya n and that the judge said during the hearing that “this is not good for your case as your client is meant to understand Amharic”.

It does not appear that the judge was given an opportunity to comment upon what counsel said in the grounds about his alleged comments on this matter. We therefore place only limited weight on this aspect of the grounds, notwithstanding that the exchanges were said to be recorded in counsel ’s note of the hearing.

However, in view of the fact that the judge concluded that the appellant was not a credible witness and had failed to prove that she was a citizen of Eritrea, the complaints being made at the hearing about the quality of the translation to and from Amharic assume greater prominence. We agree with the appellant’s grounds, to the effect that the judge’s primary task at this point was to determine whether there were genuine difficulties with the Amharic-speaking interpreter , rather than considering whether the appellant spoke other languages than the one in which she was seeking to give her evidence.

In large part, the adverse credibility findings of the judge were based on inconsistencies and other deficiencies that he detected in the written evidence, as opposed to the oral evidence given at the hearing. As we have said above, by reference to the judgments in Perera , an appellate tribunal is likely to be unpersuaded to disturb a judicial decision because of problems of oral interpretation at the hearing, where the reasoning of the judge does not materially depend upon the oral evidence.

In the present case, the grounds take issue with the app arent finding of the judge at paragraph 43(ii) of the decision that the appellant had “a proclivity to lie and practise deception” , on the basis that the judge did not accept the appellant had paid €300 to an agent to take her from Switzerland to France.

Reading paragraph 43(ii), it is by no means apparent that this was a finding that the judge did, in fact, make. It is possible to read his findings as involving the appellant (a) employing the services of an agent to take the appellant from Switzerland to France , and (b) paying an agent €300 to take the appellant to the United Kingdom.

Overall, so far as concerns the challenge in ground 1 on the basis of the judge’s refusal to adjourn in the light of the alleged problems regarding interpretation at the hearing, we find the matter to be finely balanced. Without ground 2, we would be minded to conclude that, in all the circumstances, the judge did not create procedural unfairness by refusing to adjourn.

Ground 2, however, put s things in a very different light. Despite what we have just said, it was apparent that both the appellant’s interpreter and the appellant herself were having difficulties with the Tribunal-appointed interpreter’s translations. As we have said earlier, each of the participants at a hearing need s to have confidence that the interpreter is faithfully attempting to translate to the best of his or her ability and that the performance of the interpreter is not influenced by any animosity towards the appellant or witness with whom they are conversing at the hearing. An interpreter, like any other participant in the hearing, is entitled to have their own views about the appellant or a witness. But , just as with the other professional participants at th at hearing, the interpreter needs to maintain a firm demarcation between his or her views and the job in hand.

It is on this basis that we must examine counsel ’s statement about events at the bus stop, following the hearing. There is no reason to doubt the contents of the statement, made only some 72 hours after the events in question. Mr Lindsay did not attempt to suggest otherwise.

The uninvited comments of the interpreter to counsel raise very gr ave doubts as to the interpreter’s independence and impartiality. Th at in turn raises serious questions as to whether the interpreter was doing her best to translate what the appellant was saying to the judge. Seen in this light, the complaints of the appellant’s interpreter and of the appellant herself at the hearing assume significant force.

Re grettably , it does not appear that counsel ’s statement of 24 September ever found its way to the judge. Had it done so, we have little doubt that the judge would have decided not to issue a decision in the appeal but, instead, would have adjourn ed the proceedings for an entirely fresh hearing. In the circumstances, that is clearly what justice demand ed . Since it did not happen, we must repair th at deficiency.

For this reason, we do not consider it necessary to address those grounds which take issue with the credibility findings of the judge in relation to the witness statements and other non-oral evidence.