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Interpretation at the hearing

Chapter number: 
34
Section: 
The Hearing
Last updated: 
31 March 2018
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project

34.1 The Royal Commission on Criminal Justice noted in 1993 that 'Clearly, in the court setting, the highest standards of interpretation are called for.' The Royal Commission recommended that only trained and qualified interpreters be used in court, and the recommendation was accepted by the Government. In response, 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.

34.2 It is often assumed, not unnaturally, by appellants and representatives – and perhaps by some judges – that only NRPSI interpreters are used for court work by the Tribunal. This is not the case. The Tribunal administration has made efforts to improve the quality of interpreters in recent years, but it remains the position that Tribunal interpreters do not need to have relevant qualifications or be members of the NRPSI. Since February 2012, interpretation services in the Tribunal have been outsourced. Since 31 October 2016 they have been provided under revised Ministry of Justice's Language Services Contracts. This replaced a framework agreement of February 2016 entered into with Capita Translating & Interpreting - previously known as Applied Language Solutions/ALS. The new Language Services Contracts are divided into four lots – lot one is for the provision of face-to-face, video and telephone interpretation services and is provided by the thebigword Group. Since 31 October 2016, the Language Shop, part of the London Borough of Newham, has been responsible for quality assurance across the Ministry of Justice language services contract. The use of the Language Shop for quality assurance is designed to ensure that only language professionals who meet the required standards are used in Tribunal interpretation. The Language Shop also provides a complaints procedure via the form on its website. There remains little evidence that the new system of quality assurance will improve standards in practice.

34.2A Under the current contracts, the Language Shop holds a Register of linguists on behalf of the Ministry of Justice. Only those linguists whose details are included on this Register are permitted to work on interpretation bookings made under the Language Services Framework. The Language Shop website states that all linguists are required to abide by the Ministry of Justice's Code of Conduct when working across the Language Services Contracts. This contains standards as to professional competence, ethical standards and confidentiality. The Language Services Framework also provides for a linguist assessment framework. This process is explained in the Language Shop Guide to the quality assurance of the Ministry of Justice Language Service Contract. The assessment framework contains two stages – an initial desk-based check confirming paper qualifications followed by an assessment in person by an assessor attending a linguist's booking (or in the case of telephone interpreting, listening to a recorded call). The assessment criteria are based on: adherence to the Ministry of Justice linguist Code of Conduct; subject matter knowledge; interpreting technique and accuracy; and language ability. The result is an overall pass or fail and those who fail are suspended from the Register. Those who are suspended may be reinstated if they pass a further role play assessment. Failure of this further assessment will result in removal from the register (although a person may be reinstated following a further 'In-person assessment' which is successful). The Language Shop Guide to the quality assurance of the Ministry of Justice Language Service Contract states that its assessors are freelance linguists with experience in the language they are assessing and the type of work Ministry of Justice linguists are carrying out.

34.2B The qualifications and experience required of linguists included on the MoJ's Register vary by reference to the category of booking ('Complex Written', 'Other complex' and 'Standard'). Annex E of the Ministry of Justice 'Guide to language interpreter and translation services in courts and tribunals', updated 29 March 2018, sets out the qualifications required for each type of booking. For Standard bookings, in essence the Ministry of Justice Guide sets out a number of relevant qualifications which the language professional must have obtained (or in certain limited circumstances, be in the process of obtaining). Save for where the language professional has obtained one of a circumscribed list of specific interpreting qualifications (CCI (IOL), Diploma in public service interpreting (DPSI) (Law), DPI (formerly Metropolitan Police Test) or level 6 diploma in community interpreting (international school of linguists)), it will also be necessary, in addition to the qualification, to demonstrate at least 100 hours of interpretation services in the relevant language(s) and, in the case of certain qualifications, to provide references. There are separate qualification requirements for 'languages permitted exceptional qualification requirements', these are considered to be non-standard languages. The 'Guide to language interpreter and translation services in courts and tribunals' lists 41 standard languages. The Guide also records 140 'languages permitted exceptional qualification requirements' and any other spoken language, not recorded amongst the 140 but outside of the 41 standard languages, are included within the exceptional category. In essence, the exceptional qualification requirements are less rigorous, although a sufficient level of communication in the target language and a basic standard of English proficiency and references are required. If you require interpretation in a language outside the standard languages, you should be aware that the quality control applied to standard languages may not have been applied, and it may be relevant to point this out if the interpretation appears inadequate, and to question the interpreter's qualifications more searchingly.

34.2C A small number of bookings for the Tribunals Service (which relate mainly to urgent cases such as bail hearings and other cases where the relevant language service provider (currently, thebigword Group) is unable to meet the request for an interpreter) are still managed 'off contract' by the Tribunals Service Interpreters Section. Inclusion on the Tribunals Service panel required either NRPSI membership (or equivalent) or the passing of an assessment operated by the Institute of Linguists.

34.3 The standard of interpretation is fundamental to the fairness of the appeal and the safety of the decision. While many court interpreters are committed people of a high standard who carry out their role with considerable sensitivity, there have also been numerous concerns expressed about the quality of some of the interpreters used by the Tribunal. The concerns have included insufficient knowledge of the witness's language, inadequate standard of English, inability to interpret properly (which is not the same as speaking both languages), and bias. A review of the quality of interpreting service provided under the former MOJ Framework Agreement commissioned by the Ministry in 2014 found that less than 50% of interpreters had one of the top ten recognised qualifications such as DPSI or a degree-level qualification in interpreting and translation. Further, Prof Anthony Good provides a valuable analysis of the central importance and problematic nature of interpreting in asylum appeals in his book Anthropology and expertise in the asylum courts (2007, Routledge-Cavendish).

Obstacles to accurate interpreting

34.4 Interpretation is often assumed by HOPOs (and sometimes by judges) to be a mechanical process which, if properly conducted, involves no choice of expression on the part of the interpreter. That is not so. There is often no word or phrase in each language which is exactly equivalent. Where there is a phrase with an equivalent meaning, it might be quite different from the literal translation of the words used. These difficulties are naturally exacerbated where the languages reflect very different cultures. A central issue for the competent interpreter is when to depart from literal interpretation in order better to convey the intended meaning of the words used. Getting the balance wrong on either side can pose serious dangers to the integrity of the process.

34.5 To interpret well requires familiarity both with the topic under discussion and an understanding of the different cultures in question. Only then can the interpreter identify whether he is effectively conveying the true meaning. The court interpreter ought in particular to have a basic understanding of the legal and policing systems both of the country of origin and of the UK. Problems often occur when questions are put in the context of UK procedures and terminology with the expectation that there will be a simple equivalent in the country of origin.

34.6 There may be different interpretations of the word 'detained' in the appellant's language depending upon whether one is referring to arrest for questioning and release on the same day, detention overnight in a police station, or detention for a longer period in a prison. Arrest by a militarised police force may be translated into English by one interpreter as arrest by the police and by another interpreter as arrest by the army. The HOPO will then allege a discrepancy. HOPOs commonly ask whether the appellant has been charged with an offence. If there is no equivalent to the British procedure by which the police charge a suspect, the interpreter may, instead of indicating that there is no means of accurately interpreting the question, simply substitute what he considers the most similar procedure – commonly, whether the witness was ever brought before a court. The witness will answer no, and this answer will be interpreted and recorded as 'No, I was never charged with any offence.' Being charged and being brought before a court may have quite different connotations and implications.

However, if you are not aware of the problem, and the court interpreter does not indicate that he has altered the question and answer, the court will be misled. The problem is exacerbated where more than one interpreter has been involved. There is then the risk that they substitute different procedures when interpreting the question, resulting again in an apparent but false discrepancy. In his study of the asylum appellate system, Robert Thomas cites a judge observing that:

The interpretation issue is incredibly difficult because inevitably in the vast majority of cases we are working through interpreters and it just stands to reason that if you get two, three, or four interpreters interpreting the same story at different stages of the process, then they are going to use different words and the different interpreters may make different sense of what the appellant is saying. … This is an almost constant issue when assessing credibility (Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication, Hart Publishing, 2011, p. 144).

34.6A The Tribunal has also recognised the problems associated with interpretation. Although in the context of interpretation at the asylum interview, many of the observations made in R (Mapah) v Secretary of State for the Home Department [2003] EWHC 306 (Admin) apply to the Tribunal,

"(1) Problems of interpretation can and do occur;

(2) Questions, translated into the applicant's language and replies given in that language, are not recorded as such but in the English translation;

(3) Records cannot always, despite exhortation, be literally verbatim;

(5) An applicant does not necessarily have the benefit of representation or his own interpreter. Such an applicant will be at a disadvantage in identifying errors of translation;

(6) Immigration officials and Tribunals of Appeal frequently judge credibility against a criterion of consistency" (para 62).

34.7 Different calendars also give rise to a host of problems. The interpreter may have grown into the habit over many years of performing a rough conversion when a date is mentioned, seeing it as part of the interpretation process. However, the foreign calendar is unlikely to provide exact equivalents and what one interpreter identifies as August might be identified by another as September. Another fraught area is kinship terminology, there often being no equivalent description of particular relationships.

34.8 On the other hand, interpretation that is too literal can also pose dangers. For example, an activist may refer to fellow activists as 'friends'. She may say 'I was detained with my friends'. She is then asked how long she knew them, and when she responds that she had seen them for the first time when they were arrested, this is marked down as a discrepancy. The common thread is the failure to take account of the inherent difficulties in interpretation.

The court interpreter

34.9 It is important to set out all your requirements in respect of the court interpreter in the notice of appeal. You will be asked to confirm the interpreter requirements at any case management review hearing or in a reply form where there is to be a paper pre-hearing review. These may include language, dialect, gender, and nationality. Gender may be particularly important if the appellant will have to give evidence of sexual torture. Nationality may be important not only where it determines accent and dialect, but because it may be impossible to interpret accurately unless the interpreter is fully familiar with national systems and customs. The Ministry of Justice Code of Conduct requires interpreters to '[b]e familiar with any cultural backgrounds relevant to the assignment.'

34.10 In Kaygun v SSHD (17213), the Tribunal emphasised that an appellant should not be required to use an interpreter who speaks other than her first language, regardless of whether she is able to conduct a conversation in the interpreter's language. It said that:

This is by no means the first time in which difficulties of interpretation have arisen where an appellant is giving evidence in other than his first language. Although, plainly, the appellant speaks good conversational Turkish, one of the problems, revealed time and again in these asylum appeals, is that someone who has a good conversational command of a language other than his own or first language, in the unfamiliar surroundings of the Courtroom, with the added stress of giving evidence in a matter of no small importance to an individual appellant, can run into difficulties.

34.10A The Tribunal may sometimes have difficulty booking an interpreter in your client's first language. They will then try to book an interpreter who speaks the language your client used in her Home Office interview, or if none is available, they will book one who speaks the official language of your client's home country. This may or may not be appropriate. Where your client speaks an unusual language, you should take clear instructions as to her proficiency in other languages so that you can justify any objection to such an interpreter being booked if necessary.

34.11 There may be some circumstances in which your client's evidence may be more effective in English than in her first language. It is an inevitable consequence of giving evidence through an interpreter that a judge will not engage with the evidence to the same extent as he can if the witness addresses him in his own language. It may also be useful to give evidence in English in a human rights appeal where the appellant's integration into British society is an important issue.

34.12 You should not suggest that the appellant gives evidence in English without satisfying yourself that she can do so effectively. In particular, she should not be distracted from the content of her answer by trying to formulate it in English. You may ask the court interpreter to remain in case the witness experiences problems with her English at any stage.

34.13 Some judges will query whether they are permitted to adopt this approach or whether all evidence must be given in one language or the other. In Humadi v SSHD [2002] UKIAT 00603, the Tribunal said that 'what is essential in order to prevent unfairness or detriment is that the appellant's evidence is given without distortion or inaccuracy' and that:

The mere fact that an adjudicator decides to receive evidence partly in English and partly in a witness' native language does not constitute an error of procedure.

34.14 Provided that you state clearly what you require in terms of the court interpreter, these requirements should be respected. In Cavasoglu v SSHD (15357), the Tribunal said that:

In the view of the Tribunal, the decision as to whether or not an interpreter should be employed in a case, is a decision which can only be taken by the Appellant and his advisors, and it is not the function of an adjudicator to disagree with a decision that an interpreter should be employed at a hearing nor, indeed, is it the function of an adjudicator to express any view with regard to a request that an interpreter be employed. The Tribunal considers that the function of the adjudicator within this context of the conduct of the hearing is to comply with the wishes of the Appellant and his advisors so far as the provision of an interpreter is concerned. The decision as to whether an Appellant should give his evidence in the language of his country or any other nation is a matter for him and his advisors alone.

34.14A You may find that some Tribunal judges have a preference as to how appellants give evidence, particularly where an appellant can speak English well but has still requested an interpreter as a backstop. It is relatively common in these circumstances, for judges to insist that all evidence be given through the interpreter despite the appellant's wishes. Provided that you are confident that the appellant is able to give evidence effectively in the language in which she wishes to speak, you should remind the Tribunal of the guidance in Humadi and Cavasoglu in these circumstances.

34.14B Equally, some Tribunals may indicate a preference for evidence to be given in English, where possible. You should object if you consider that your client's level of English is insufficient or if she does not want to do so. It is true, however, that interpretation can add a layer of distance to the Tribunal's ability to consider the oral evidence. In MS (Trafficking – Tribunal's Powers – Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC) the Tribunal commented on the benefits to the assessment of credibility of the appellant giving evidence in English:

(15) The Appellant's story is certainly not perfect. The exercise of juxtaposing the accounts provided by him during interview, in his witness statement and in his testimony to the Tribunal exposes a number of inconsistencies and imperfections. The question for us is whether these defects render the core of his account unworthy of belief bearing in mind the burden and standard of proof. We have considered his various accounts with care. In evaluating his story, we have had the benefit of assessing the Appellant's demeanour and presentation at two separate hearings. In this particular case this has proved to be an asset of considerable value. While the Appellant had the services of an interpreter at both hearings, he readily co-operated with the Tribunal in its suggestion that he endeavour to give his evidence in English if possible. This established that he had a good command of the English language and this, in turn, facilitated our task of assessing his credibility. The Appellant made no attempt to take advantage of the protective shield which the interpreter would have provided. We were impressed by his willingness to engage with the Tribunal throughout his evidence.

Ultimately decisions on whether a non-native English-speaking appellant should give evidence in English or not are case specific and are likely to turn on a mixture of your and the Tribunal's assessment of the appellant's linguistic ability and her own wishes. If giving evidence in English is, in your view, likely to lead to mistakes being made, it is your duty to intervene.

34.15 As indicated above, the MoJ Language Services Contracts requires linguists to be sufficiently qualified to undertake face-to-face interpretation. Under the previous MoJ Framework Agreement (with Capita TI), the Justice Committee, the Public Accounts Committee and National Audit Office ('NAO') all reported concerns about the quality of interpreters provided. In January 2014, the NAO reported a worrying increase in the number of the lowest grade of interpreters (what was tier 3 under the Framework Agreement) being used for court and tribunal hearings, with 10% of interpreters being Tier 3, and 52% of court staff told the NAO that they had never sought judicial approval before booking a Tier 3 interpreter, despite this being a requirement.

34.16 In November 2014 a report was published of a review commissioned by the Ministry of Justice of its interpreting services (the Optimity-Matrix Independent Review of Quality Arrangements under the MoJ Language Services Framework Agreement). The review recommended a change to the tiering system for the provision of interpreters in courts and tribunals. Tier A interpreters would be required to have one of the top-ten recommended language qualifications (including DPSI and BA-level or higher degree qualifications with specific justice-sector elements) and 400 hours of public sector interpreting experience. According to the review, all existing Tier 1 interpreters would meet this requirement and 70% of the Tier 2 interpreters. It recommended that Tier A interpreters be prioritised for the most important or complex work, which it identified as work in the criminal justice system, or in the senior courts. Tier B interpreters would be required to have a qualification meeting the National Occupational Standards requirements for translating and interpreting, and at least 100 hours of public sector experience. It is concerning that the Review did not identify asylum and human rights appeals as a priority for the highest quality of interpreting and translation services, given the extremely serious consequences of such appeals.

34.19 Although the new Language Services Framework contains a new quality assurance system through the Language Shop (see above), there is little evidence yet that the serious concerns raised under the previous MoJ Framework Agreement regarding the 'highest standards of fairness' that are required in asylum and human rights appeals have been properly addressed. You may have to explain these policies to the judge if there are concerns about the court interpreter.

34.20 The Tribunal previously stated in its Guide to Adjudicators (May 2002, now withdrawn) that if the court interpreter is challenged, 'the ability and skill level of the interpreter present should be quickly verified [by the judge] by speaking to the Interpreter Team Leader'. It remains sensible to invite the judge to ascertain the skill level of the interpreter where it is challenged and the judge does not simply allow the challenge. (It may be necessary to disabuse the judge, by reference to the information cited above, of the notion that all interpreters used by the Tribunal have been assessed to the same high standard). The judge may also question the interpreter about his qualifications and experience. You are entitled to the information that is obtained by the judge. In Kutukcu v SSHD (01/TH/00826), the Tribunal stated that:

Consideration of the ability or otherwise of an interpreter is of central importance to the adjudicator's assessment of the evidence. As with any other subject in that category, the parties need not only to know what the adjudicator is told, but see the relevant material for themselves. In this case that meant the interpreter's own words and demeanour when giving her qualifications and experience, apparently at some length. We cannot for the moment think of any case that might call for private communication between the interpreter and the adjudicator: with the best will in world, this one did not. The fact that a point has been raised which may be thought embarrassing is no reason to depart from the general rule of doing justice in the presence of both sides.

34.21 […]

34.22 To test whether the interpreting is satisfactory, the judge will ask the interpreter to exchange some remarks with the witness before she gives evidence. The correct procedure is set out in Adjudicator Guidance Note No 3 (described on the Tribunal's website as one of the "Guidance Notes for the former AIT that are now relevant to FTTIAC");

1. This guide provides a suggested form of words for the introduction of interpreters and appellants at the beginning of hearings. It also gives guidance on other interpreter issues that arise periodically.

2. Interpreters are booked by the IAA and they do not usually meet the appellant until they attend in court at the beginning of the hearing day. It is vital that the Adjudicator ensures that the appellant and the interpreter understand each other. The Adjudicator must do this in open court.

3. In the absence of any guidance several practices have developed. The most common is for an Adjudicator to say to an interpreter something like "Do you understand each other". The interpreter turns to the witness and says presumably, "Do you understand me". The appellant says something in reply and the interpreter confirms there is an understanding. Something rather more formal is likely to be more effective. It is bad practice to have no form of introduction of the appellant and the interpreter as has happened on occasions.

4. The following example, introducing an asylum appeal, is suggested as a guide to Adjudicators. The purpose is for the Adjudicator to take an early and immediate control of the proceedings so that the Adjudicator establishes with the help of the interpreter that the appellant and the interpreter understand each other rather than leaving that to the interpreter. In addition and of equal importance, the introduction may help to ensure that Appellants understand that they are at the centre of proceedings, and that they know they have your undivided attention.

Adjudicators Pre Hearing Introduction

I am now going to hear your appeal. It will take the form of you being asked questions, first by your representative and then by Mr/Mrs… for the Home Office.

The important thing for you is to listen to the question carefully and just answer the question asked. If you have to give a long answer, please do so in small parts so that it can be interpreted properly. Please do not interrupt the interpreter when your answer is being interpreted.

Although the interpreter is sitting next to you, speak loudly and clearly to them. I would also like you to speak loudly enough for me to hear what you are saying. The interpreter will speak loudly and clearly to you.

If you do not understand anything please say so.

You will not be asked to give a full account of what happened to you in your country. This is detailed on the papers before me. I have to decide what is likely to happen to you if you went back. Don't feel too upset that you have not been asked to give a full account.

After the evidence has been given, the Presenting Officer and your representative will make their final submissions to me. The interpreter will do his/her best to interpret those as well.

Do you understand the interpreter?

Now to ensure that the interpreter understands you, I would like you tell the interpreter how you arrived at court this morning. Tell the interpreter what time you left and some details of your journey here.

(To the Interpreter): Do you understand the witness?

This process should not take more than a couple of minutes.

5. It is not good practice to ask an interpreter to explain the procedure in the court to the appellant. Nor should interpreters be used as experts or be asked to give advice.

6. There is no objection to appellant's representatives bringing in their own interpreter. Interpreting is a difficult job particularly when being done under pressure. An appellant's interpreter however must only communicate through the appellant's representative. If there is any disagreement with the court interpreter the appellant's interpreter can bring that to the representative's attention promptly. It may be appropriate to have the appellant's interpreter sit relatively close to the appellant's representative.

7. There are occasions when representatives ask for the assistance of the court interpreter to help communication with the client outside the court. So long as this does not involve anything contentious and does not entail the interpreter interpreting detailed instructions then this should not be regarded as objectionable. Occasionally, the court interpreter may also be asked to translate documents which have been produced untranslated at the hearing, provided these are short and, in particular, provided the interpreter is content to do this. Translation of documents is not part of the interpreters' job description.

8. Interpreters are the only people during hearings who speak all the time. They do need regular breaks, especially if they are interpreting in more than one appeal, and it is not best practice to leave it to the interpreter to ask for a break.

34.23 The conversation about how the appellant got to court that morning (while an improvement on previous practice) is likely to be at a level of sophistication that could be handled in French by the average British school pupil. Having established this level of understanding, the interpreter is then expected to be capable of translating the witness' explanation of Marxist ideology. Not surprisingly, it does not always follow. What does often follow is an absurdly literal translation. Upon being challenged on the interpretation into nonsensical English, the interpreter may reply that they have been told to translate exactly what the witness has said. What he is actually doing, as the British school pupil learning French would do, is interpreting words without any regard to context.

34.24 The Tribunal's Handbook for Freelance Interpreters gave guidance on the court interpreter's conduct:

You should endeavour to reflect the type of language that is being used, whether it is simple, formal, colloquial etc. If abusive or obscene language is used in the source language, you should use the English equivalent

..............

To aid in this, it is necessary that you maintain information on the general culture, social and political situations in the countries from which the languages being interpreted originate.....

You may intervene at the hearing for the following reasons:

to seek clarification if you have not fully understood what [has] been asked to interpret;

to alert the Judiciary that although the interpretation was correct, the question or statement may not have been understood;

to alert the court to a possible missed cultural inference - such as when an item of information has not been stated but knowledge of which has been assumed;

if someone is speaking indistinctly, too quickly or for too long without pausing to allow adequate consecutive interpreting ...

An interpreter's duty is to interpret accurately and precisely. An interpreter must remain strictly impartial both before and throughout the proceedings........

Please do

use the witness's exact words. If you cannot make a direct or exact interpretation, interpret it as accurately as possible in the witness's own words and then inform the Judiciary what the phrase means.

Your duty is to make sure the court understands what the witness is saying.

stop the witness or questioner at the end of each sentence as necessary

and interpret sentence by sentence ...

Please do not

speak to a witness [or] appellant before or during the hearing except in the course of your official duties, unless the Judiciary has given you permission. In particular, do not have discussions not interpreted with a witness during the court session.

use an English expression or phrase which is not an exact translation of the witness's own words.

ask the witness what they mean by a particular answer. If you cannot understand what is meant by an answer, you must ask the Judiciary if you can ask the witness to repeat or clarify their answer.

try to anticipate what the witness is trying to say or give an answer other than what is being said.

let your own experience or views get in the way of how you interpret the evidence. …

(The Handbook for Freelance Interpreters, which was last updated in January 2011, was supplied by the Tribunals Service to ALS when they were awarded the contract to provide interpreters for HMCTS, and is still supplied to all interpreters booked directly by the Tribunals Service).

34.24A Similar requirements, though more generalised in nature, are set out in the MoJ's Code of Conduct.

34.24B The Tribunal has made clear that the role of the court interpreter is simply to communicate. He should not be asked to assist in resolving contentious issues between the parties, including as to the dialect or language which the appellant is speaking. In AA (Language diagnosis: use of interpreters) Somalia [2008] UKAIT 00029, the Tribunal said:

It is in our view in the highest degree undesirable for the interpreter as a Court official to be asked to contribute in any way to the determination of a contested issue. In his task of comprehension and communication, the interpreter needs to have and maintain the confidence of all those with whom he deals, including the witness whose evidence is being interpreted, the representatives of both parties and the judge. He cannot maintain that confidence if there is the slightest suspicion that he is, in addition, taking some part in assessing the evidence, on which he will in due course report to the Court. … The Court Interpreter is a vital part of the immigration appellate process. It is very important that the interpreter's position should not be compromised in any way. The interpreter is not himself a witness and should not be invited to become one. If it happens that the interpreter cannot understand the language or dialect being used, he will of course have to say so. At that point it may be necessary to check that the language requested by the person whose evidence is to be interpreted is indeed a language that falls within the interpreter's portfolio. But it is unlikely that any more detailed information from the interpreter could properly form the basis of the Tribunal's findings of fact. (para 9)

34.24C In Mohamed (role of interpreter) Somalia [2011] UKUT 337 (IAC), endorsing its earlier decision in AA [2008] UKAIT 00029, the Tribunal noted the common practice of interpreters to inform the Tribunal of the language or dialect in which they are communicating with the appellant and said that:

...We are reluctant to suggest that they should never do so because it may be that such an indication will alert the judge to the possibility that there is a problem that requires his intervention. On the other hand, in cases where the appellant's fluency in a language is in dispute or the ability to speak a particular language may be relevant to the appellant's claim, there needs to be a degree of caution because it might (wrongly) be thought to be evidence, and as a result something that is relevant to the judge's function of deciding the case upon the evidence before him, which it is not. (para 9)

If in your case language is an issue, you may want to ask that the court interpreter be directed not to say anything about the language or dialect being used to avoid the risk of this improperly influencing the views of the Tribunal either way.

34.25 Always address the witness directly. If clarification is required, you will normally ask the witness. If you need to ask the interpreter directly for clarification of something the interpreter said, address him as Mr/Madam Interpreter. If the question is anything more significant than whether you heard him correctly, you will normally indicate to the Tribunal first that you wish to seek clarification from the interpreter. This may be because your own interpreter has alerted you to the fact that there is a difficulty in the interpretation of a particular phrase or concept, or simply because the interpretation appears unclear or ambiguous.

34.26 Questions during cross-examination can be convoluted. You may intervene to express concern if the interpreter is asked to interpret, say, complex questions containing double negatives.

34.27 The court interpreter should provide whispered simultaneous interpretation during exchanges between representatives and the judge and during closing submissions. (He sometimes needs to be reminded to do this.)

34.28 The Adjudicator Guidance Note emphasises the need to give the court interpreter regular breaks. Interpreting court proceedings demands intensive concentration. If it appears that an interpreter who is otherwise satisfactory may be starting to make mistakes through tiredness, you should suggest to the judge that he takes a break.

34.29 Always keep a note of the court interpreter's name. If a case is adjourned part heard (for reasons other than defects in the interpreting), it should normally resume with the same interpreter. As indicated above, different interpreters may interpret the same word or phrase differently, and a change of interpreter mid-way through evidence may lead to changes in the interpreting which will suggest a false inconsistency on the part of the witness.

Your interpreter at the hearing

34.30 You should always have your own interpreter present where the appellant (or any material witness) will not be giving evidence in English. In terms of client care alone, it is less than satisfactory if your client cannot communicate with her advocate both before and after the hearing. In terms of your professional responsibility to present the appeal properly, it is unacceptable for an advocate to be unable to communicate with his client at court. Your duties include addressing last minute concerns from your client which may otherwise affect her confidence. You may also have to take instructions on new issues raised by the HOPO or judge.

34.31 Unless you are fluent in the language in which your client will give evidence, it is even more important that you are able to monitor the court interpreting through your own interpreter. You are otherwise powerless to intervene if mistakes (which may be critical) are made. As the Tribunal noted in Kaygun v SSHD (17213):

It is not easy for an adjudicator who has no command of the language to pick up problems of this sort, nor indeed is there any reason why an appellant who has no command of English, or only a limited command, should himself be able to pick up problems of interpretation. A witness who requires the services of an interpreter ipso facto will be unlikely to appreciate the way in which his answers are being translated, and as a consequence will not be in a position to draw the problem to the adjudicator's attention. Similarly, unless the representative is fluent in [the appellant's language], then the representative will often not be aware that there is difficulty.

34.32 The LSC previously gave the following guidance about the reasonableness of instructing an interpreter to attend the Tribunal. (The guidance was issued in the previous General Civil Contract –the current contract contains no guidance so reference may still be made to the previous guidance for points that the LSC has accepted):

Is it reasonable to allow an interpreter to attend with you at [the asylum interview], before the adjudicator, or before the Tribunal ?

Although interpreters are provided for hearings before the adjudicator and Immigration Appeal Tribunal, their function is to provide an interpreting service for the adjudicator/tribunal. It may therefore be appropriate to authorise an extension to enable you to communicate with the client and take instructions where there is no other suitable person (for example, family member or friend) to assist the client and you do not speak the relevant language to a sufficient standard.

It is normally reasonable to authorise an interpreter to attend with you at the [asylum] interviews. Whilst the immigration services have their own interpreters attending at every interview, where necessary, it is still normally considered reasonable for the applicant to have an independent interpreter present as the interpreter provided by the Immigration Service may have an opposite opinion or opposing political affiliation to the applicant and may therefore be biased against the applicant. Interpreters cannot be instructed to attend in your absence. (para IM 3.5)

When the graduated fee scheme was introduced for immigration and asylum work, the LSC accepted after consideration of responses to its consultation that interpreter fees should remain outside of the fixed fee and be subject to a separate disbursement limit.

34.33 The points made by the LSC in the final paragraph of the passage quoted above apply equally to appeal hearings, where the consequences of the evidence being tainted by inappropriate interpretation are even graver than at the asylum interview. The LSC has recognised the need for a professional interpreter at the full hearing where the appeal is publicly funded.

34.34 If at all possible, the interpreter who monitors the hearing should be familiar with the case. This is most easily done by booking the same interpreter for the pre-hearing conference and the hearing. Even if he is no better qualified than the court interpreter, his familiarity with the case and with any problems that have arisen previously means that he is more likely to be alert to the potential problems.

34.35 Your interpreter should sit beside you at the representative's desk in the hearing room so that you can communicate easily with each other without disrupting the proceedings. (The judge will sometimes seek confirmation that he is a professional interpreter rather than a friend of the appellant, and ideally, he should be smartly dressed for the hearing.) Occasionally, a judge may object to your interpreter sitting beside you. It will be appropriate to refer him to para 6 of the Adjudicator Guidance Note which points out that interpreting is a difficult job when done under pressure, there is no objection to the appellant's representative bringing his own interpreter, and that it may be appropriate to have that interpreter sit relatively close to the representative (para 34.22).

34.36 Your interpreter should immediately indicate to you either by a note or a whisper whenever something is going wrong. You should emphasise to your interpreter that he should not address the witness, court interpreter or judge directly unless permitted to do so by the judge. If he indicates to you that there is a problem that you need to discuss, ask the judge for a moment to consult. Your interpreter should take a detailed note of any problems that are arising. He may be an important witness in future proceedings arising out of mistakes by the court interpreter.

Sometimes, the court interpreter reacts defensively and unprofessionally to his interpreting being monitored. In SJ (Hearing Interpreters) Iran [2004] UKIAT 00131, the Tribunal said that

We have evidence presented in a proper form from Counsel at the hearing and the interpreter who was instructed by the appellant to check on the quality of the interpreter provided by the Appellate Authority. It is clear from reading these statements that the interpreter responded to criticism by lowering her voice so that her interpretation could not be heard. Whilst we have a great deal of sympathy for the interpreter taking this course it was wrong. Hearings in the Appellate Authority are almost always conducted in public and that means they have to be conducted in a way that members of the public and people with a particular interest in the case can understand what is happening. By permitting the interpreter to interpret too quietly for other people to hear the Adjudicator erred.

34.37 If you do not have a professional interpreter, then an English speaking friend of the appellant is better than nothing. However, interpreting is a demanding and difficult profession, and the friend is likely to be of limited value. If such a friend warns you about a problem during the hearing, the judge is likely to be unhappy that the concern comes from your client's friend rather than a professional interpreter.

34.38 You should not be in the position where you are presenting a hearing without your interpreter present. If you are put in that position, there is a grave danger that you will miss even very serious mistakes by the court interpreter. If the answers which are translated vary from those given in conference, you will have no way of knowing whether the problem is with the interpreter or your witness.

34.39 Warning signs include where the interpreter uses inarticulate or bad English whereas the witness was coherent and articulate in conference; where the answers translated differ markedly whereas the client has been entirely consistent up to the hearing; and where the answers do not reflect the knowledge and sophistication that you are aware that the witness possesses. You will face an extremely unsatisfactory dilemma in deciding whether to raise your suspicions about the interpreter. You risk the interpreter simply denying that there is a problem and you then have no way of gainsaying him: the only result may be to highlight the fact that the evidence has taken you by surprise.

Challenging the interpreting

34.40 If there appears to be a problem with the interpreting then you should normally raise it with the Tribunal immediately. Even if the mistake is tolerable in itself, if it later becomes necessary to replace the interpreter because of accumulating difficulties then it will be important that the judge was made aware of the developing situation from the outset. If an isolated and minor error occurs in cross-examination which is not going to affect the development of the cross-examination, you may leave it to be cleared up in re-examination.

34.41 The Tribunal has indicated that the court interpreter is unlikely to be the best judge of the degree of comprehension between himself and the appellant, and that where there is a dispute, it is advisable for a judge to adjourn either to replace the interpreter or to seek expert evidence as to the degree of comprehension (Diarrassouba (11688)).

34.42 Major refugee producing countries are, for obvious reasons, more likely than average to be deeply divided on grounds of ethnicity, tribe, religion, class or politics. As noted at para 34.32, the LSC has recognised that interpreters 'may have an opposite opinion or opposing political affiliation to the applicant and may therefore be biased against the applicant'. It is alarmingly common for court interpreters, when challenged about their interpreting, to seek to persuade the Tribunal that the witness is at fault. It is not unknown for interpreters to have alleged to the Tribunal, in court, that the witness is lying and pretending not to understand the interpreter. There have also been cases where the appellant repeatedly complained that she was unwell but the interpreter ignored this and translated only the substantive answers to the representatives' questions.

34.43 Any claim by the interpreter in court that a witness is blameworthy should normally lead to the immediate halting of the hearing, to begin afresh with a new interpreter. It is fundamental to the court interpreter's role that he maintains strict impartiality throughout, and this is emphasised both in the Tribunal's Handbook for Freelance Interpreters and in the MOJ Terms and Conditions for individuals providing face-to-face interpreting services. In Mohamed (role of interpreter) Somalia [2011] UKUT 337 (IAC), the Tribunal emphasised that the interpreter is not a witness in the case and what he says is not evidence which the Tribunal is entitled to take into account in deciding the appeal. However, it will obviously be damaging if the interpreter makes such comments to the judge. You should always make a formal complaint, and, in an especially serious case, you may indicate that you will object to the interpreter's use in any future appeal in which you are involved.

34.44 If the Tribunal refuses all applications to at least adjourn in such circumstances, your client is left in the desperately unfair position of having to communicate with the court through an interpreter who is making allegations to the court about her evidence, or even her credibility. Even so, you should be wary of offering no further evidence in such circumstances. Assuming you have your own interpreter monitoring proceedings, then the better course will usually be to continue the evidence, objecting on each occasion on which the interpreting is inappropriate, and asking the Tribunal to note each objection. (You should politely continue to object where necessary, regardless of whether the judge has indicated that he does not wish to hear any further objections relating to the standard of interpreting.) If you do not have your own interpreter at the hearing, then you and your client are obviously in a far worse position. However, even so, offering no further oral evidence should be a last resort. If there is a major problem with the court interpreter and the Tribunal refuses to adjourn, you may wish to state your concerns in writing to the President immediately after the hearing. A complaints procedure relating to the performance of interpreters is also provided by the Language Shop via the form on its website. It is advisable to make the complaint to the Language Shop in addition to complaining to the Tribunal.

34.45 If the hearing has to be adjourned through defects in the interpreting, evidence should not normally resume part-heard. In Ki-Lutete (10862), the IAT said that:

Where interpretation is found not to be satisfactory in almost all cases the evidence should then be started again.

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