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Taking instructions

Chapter number: 
11
Section: 
Evidence
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

11.1 Unless your client is going to give evidence in English, it is vital that you use an experienced professional interpreter when taking instructions for the purposes of preparing the witness statement for the court.

11.2 You should establish at an early stage in what language your client is most fluent. This will not necessarily be the language which your client used for Home Office interviews or which has appeared adequate for taking instructions. Check that both language and dialect are right. Ask her. The fact that the language spoken in different areas has the same label is not necessarily any indication that speakers from those areas will be able to understand each other. In relation to some dialects, it may be effectively impossible for someone to properly understand and convey meaning unless they have lived in the area and amongst the people who speak it. Try to ensure that the interpreter is familiar with cultural differences, as well as the language (see further - chapter 34).

11.3 It is not satisfactory to use someone your client has brought along from her community. That person may well be more knowledgeable about the country of origin, and able to explain apparently surprising aspects of your client's story more convincingly than can your client. His expert knowledge may be invaluable to the preparation of your client's claim. But that is part of the problem in a representative using him to interpret. At worst, encouraged by the fact that the interpreter has all the answers, the representative will be tempted to direct questions to the interpreter, e.g. 'How was she able to escape?' and the interpreter will start providing an answer without even translating the question. The representative will merely accept the answer - presumably because he assumes that his client will give the same answer. You should always address questions directly to your client, and insist that these are translated directly to your client, and the answer translated directly back.

11.4 But simply giving this instruction is not enough to prevent exchanges such as the following:

Rep: 'The Home Office is saying that the authorities would not have arrested you repeatedly just because you attend one demonstration. Were you surprised that they kept on arresting you just because you had attended one demonstration?'
Interpreter: [Translates into client's language]

Client: It did happen. I was arrested three times and tortured on every occasion.
Interpreter: [in English] You see... [and continues to provide an explanation of why this might have happened]

11.5 Your client has not answered the question. The interpreter has realised this, and is giving you the answer you are looking for. However, you assume that he is merely translating the client's answer. An even more dangerous position is where your client understands the question but gives an answer that the interpreter thinks is misconceived or will not please you, so the interpreter alters or elaborates upon the answer when he translates it to you. The interpreter's answer will go in the statement. You may not realise that your client does not properly understand - or even perhaps agree with - what her statement says until she departs from her statement in oral evidence. Whereupon the HOPO is able to claim she is lying.

11.6 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, 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 primary task. Your client is going to be cross-examined on her statement. The interpreter will not be able to answer these questions for your client.

11.7 Always try to ensure that your client is comfortable with a particular interpreter. Ask her whether she has any other concerns about which interpreter is used (though bear in mind that she may not feel comfortable explaining her concerns if she has to do so through the interpreter who is the subject of these concerns). Use common sense and your knowledge of the country of origin to identify in advance whether using a person of a particular ethnic origin, gender etc. may cause problems.

11.8 Be sensitive to the intrinsic difficulties in interpreting discussed in chapter 34. Where an interpreting problem or misunderstanding arises, you should encourage the interpreter to alert you to it. If these problems are discussed, it should increase the accuracy of the witness statement. Equally importantly, having been alerted to the difficulty, you will be better able to identify it if it reoccurs during oral evidence.

11.9 It is also important that the interpreter's English reflects the manner in which your client speaks as accurately as possible. For example, if the way your client speaks is simplistic, the interpreter should not interpret into sophisticated English. You want the statement to be as faithful as possible to the way your client speaks. You also need to be able to judge as far as possible from her language whether she is worried or uncertain about particular topics, and to be alert to any psychological difficulties your client may have (see chapter 26).

11.10 Provided the interpreter is competent, it is important if at all possible to use the same interpreter for taking the statement, pre-hearing conferences, and monitoring the hearing (see chapter 34).

11.11 Particularly where your client has suffered traumatic events, the environment in which she is interviewed is also important. The most inappropriate environment is a noisy office with repeated interruptions, and a caseworker and/or interpreter who is clearly pressed for time.

11.12 She should not normally be interviewed in the presence of family members and friends. She may feel inhibited from giving full details of her treatment or activities. Nor should she be asked in front of others whether she wants to be interviewed alone. She may feel inhibited from requesting this. It should be done, at least initially, as a matter of course.

11.13 The appeal may be won or lost on the strength of your client's statement. No amount of good advocacy at the hearing may remedy a careless mistake on the part of the caseworker while taking the statement. Appeals have trundled up through the courts for years while advocates argue at ever greater expense over the weight and construction to be placed upon alleged inconsistencies which arose solely because the caseworker taking the initial statement was cutting corners. It is therefore cost effective, as well as less dangerous for the appellant, to get it right first time.

11.14 It is imperative that interviews are not rushed. What is adequate will depend entirely upon the circumstances of the case. Asking 'How long does it take to complete an asylum seeker's statement?' is like 'How long is a piece of string?' Factors affecting the time required will include:

• the extent and nature of the allegations in the Home Office refusal letter;

• the extent to which your client's case turns upon the acceptance of her history;

• the extent and level of her activities;

• the extent of past ill-treatment;

• whether she is traumatised or ill or otherwise has difficulty in recollection or in understanding or focussing upon the material issues;

• how difficult is the interpreting;

• her level of education and understanding;

• the extent of past inconsistencies which need to be addressed and whether previously undisclosed information now has to be presented.

11.15 If the events are very straightforward, or the case is based largely upon factors other than the appellant's history, the statement may be finalised in one session. But if success rests on the acceptance of her history, that history is complex, and there are serious credibility issues, the statement may take many hours over different sessions and go through several drafts. There is nothing wrong with that. Cutting corners is a false economy. The important thing is not to keep to some arbitrary guideline, but to ensure that the time spent is appropriate to the nature of the case.

11.16 It is very easy when taking a statement through an interpreter to get the wrong end of the stick even in the simplest of cases, particularly if there is pressure on the caseworker to complete the statement. It can be very difficult to put aside preconceptions, whether from other cases or ordinary life which may distort the caseworker's understanding of what the client is trying to convey - particularly if such preconceptions seem to offer an easy way of conveying a sensible account to paper.

11.17 The open-focussed-closed method of questioning (sometimes known as the 'funnel technique') is usually the safest means of eliciting information. Begin with a completely open question ('What happened?'), then follow up with more focussed questions ('Can you explain why you did that?') which guide your client towards areas you need to explore 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?'

11.18 The circumstances in which this approach will not work are where your client is too unconfident or inarticulate to respond effectively to an open question. You will then have no option but to probe and prompt by offering her choices. If she relaxes during the interview, you may be able to return to a more open questioning technique.

11.19 Always ask one question at a time. You are unlikely to get a proper answer to a composite question, even if it survives the interpretation.

11.20 Never take the first answer you get without testing it. Approach the point from different angles. As a simple example, after eliciting the date of the last detention, ask how long she remained in the country after her release, and check that the two answers correspond. Ask what she was doing between the last detention and her escape, and be alert to any indication from the answer that the dates she had given are inaccurate. If you have been given dates for other events occurring around the same time, check the order in which they occurred rather than assuming this from the dates you are initially given. If you have a clear date for a particular event (e.g. marriage or the birth of a child), you can perform a similar check even though the event used for reference purposes is immaterial to the appeal.

11.21 Clients from different cultures (particularly if they use a different calendar) will often have much more difficulty in determining western dates than in putting material events in order and placing them in the chronology by reference to other events. If your interpreter is converting dates from a different calendar, mistakes are particularly likely. You should also record the date in your client's calendar so that she is not accused of inconsistency as a result of someone else's mistake.