Taking instructions, vulnerability and capacity

Taking instructions

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. You should also consider whether your client is vulnerable, or may lack capacity to give instructions (see the discussion at 11.22-11.32 below).

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. To avoid this happening you will need to maintain control of the interpretation: remind the interpreter at the outset that his duty is to interpret only what your client says and to indicate if he adds his own commentary. You should also request that any discussion that takes place between the interpreter and the client in her language is interpreted to you. Often this will be where the client has not understood and the interpreter – without interpreting back to you – has attempted to resolve the misunderstanding himself. In these circumstances, there is a risk that the interpreter himself may have misunderstood the precise terms of your question or advice. It should be you advising your client, not the interpreter, irrespective of the fact that he may routinely interpret in the asylum context.

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, 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 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. Depending on the circumstances of your case, your client may be uncomfortable – and crucially, therefore, unable to disclose key parts of her case to you – with an interpreter of a certain gender.

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), including any lack of capacity (see paras 11.22-11.32 below).

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.

Assessing vulnerability and capacity to give instructions

11.22 You should be alert to your client's vulnerability when taking instructions. In certain cases, you may suspect that your client would be not only unable to give coherent evidence but may lack capacity to understand or participate in her appeal hearing at all. As the Senior President noted 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…

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

11.23 The Mental Capacity Act 2005 states:

2(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

This definition is supplemented by the Mental Capacity Act Code of Practice (23 April 2007) which states:

Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?

4.11 Stage 1 requires proof that the person has an impairment of the mind or brain, or some sort of or disturbance that affects the way their mind or brain works. If a person does not have such an impairment or disturbance of the mind or brain, they will not lack capacity under the Act.

4.12 Examples of an impairment or disturbance in the functioning of the mind or brain may include the following:

• conditions associated with some forms of mental illness

• dementia

• significant learning disabilities

• the long-term effects of brain damage

• physical or medical conditions that cause confusion, drowsiness or loss of consciousness

• delirium

• concussion following a head injury, and

• the symptoms of alcohol or drug use.

11.23A The Bar Standards Board's Vulnerability Good Practice guidance for immigration clients, 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" (Factsheet 6: Issues with Mental Capacity). The BSB Factsheet contain helpful advice for all those who are advising people who may lack mental capacity (not just barristers), including the following:

…You should be continually assessing your client's capacity throughout the process, due to the fluctuating and dynamic nature of vulnerability and the stress associated with accessing and receiving legal services. If you notice your client taking decisions or behaving in a manner which is inconsistent with previous decisions or behaviour, you may want to explore this further. For example, perhaps your client is easily influenced by others and a family member is exerting undue pressure on them, which has led to a series of seemingly inconsistent decisions.

… When considering whether a person lacks capacity under the MCA 2005, ask yourself the following:

● Does the person understand the information which is relevant to their decision?

● Can the person retain this information?

● Can the person use or weigh up the information as part of the process of making the decision?

● Can the person properly communicate their decision?

If your client appears to struggle to understand what is being said, remember events and information or make and communicate decisions, you should consider the need for a mental capacity assessment. This assessment should be conducted by a professional. Do not assume your client lacks capacity, but ensure they are assessed prior to acting on instructions.

11.24 In these circumstances you will need to obtain a medical report as to your client's capacity to understand the appeal proceedings. Ideally, this report should be obtained from a psychiatrist but in some cases, a psychologist, the client's GP, a mental health nurse, or an independent social worker may be able to assist. Indeed, The Mental Capacity Act Code of Practice (at para 4.42) notes expressly that a professional opinion on capacity can be given by a psychologist (as well as by a speech and language therapist, occupational therapist or social worker), and stresses (at para 4.51) that if a person has a particular condition or disorder, it may be appropriate to instruct a specialist. With your client's consent, you may also find it helpful to consult any friends, relatives or carers for their views. It is important to remember that capacity is "decision-specific" and so the fact that a person may be able to make decisions about some aspects of their life, doesn't mean that they have capacity to take decisions about the conduct of an asylum appeal. 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.

11.24A The Equal Treatment Bench Book (July 2022 revision) contains guidance for judges, noting that courts 'should always investigate the question of capacity when there is any reason to suspect that it may be absent.' The Equal Treatment Bench Book also contains useful summaries of the principles applicable under the Mental Capacity Act 2005.

11.25 It was held by the Administrative Court that the Tribunal does have power to appoint a litigation friend, where procedural fairness requires it: R (C) v FTT and others [2016] EWHC 707 (Admin). The Court of Appeal's unanimous judgment in AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 endorsed the Administrative Court's ruling in C and gave further consideration to the question of litigation friends in the Tribunal. Sir Ernest Ryder, Senior President of Tribunals, noted in his lead judgment that a direction could be made to permit the involvement of a litigation friend but that '[c]are should be taken to ensure they are appropriately used and only for the parts of a hearing where they are necessary' ([38]). The Senior President concluded (at [44]) that:

…there is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached. It must be remembered that this step will not be necessary in many cases because a child who is an asylum seeker in the UK will have a public authority who may exercise responsibility for him or her and who can give instructions and assistance in the provision of legal representation of the child.

11.26 Despite the suggestion in the last sentence that a local authority will normally be able to act as a litigation friend for a child who lacks capacity, you will always need to consider whether a local authority social worker can fairly and properly represent the child's (or incapacitated adult's) best interests. That is the duty of a litigation friend, and a local authority employee may not always be an appropriate litigation friend, for example because there may be a conflict of interest between the child's best interests and those of the authority.

11.26A In R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 00064 (IAC), the Tribunal gave general guidance on the factors to be considered in deciding whether a child requires a litigation friend, whilst noting that each case must ultimately be fact-specific. Whilst the guidance was given in the context of an immigration judicial review it was expressed as having relevance to statutory appeals in the First-tier:

(1) Although all cases are fact-specific, the following general guidance represents the approach the Upper Tribunal is likely to adopt in deciding whether a child applicant in immigration judicial review proceedings requires a litigation friend to conduct proceedings on the child's behalf:

(a) As a general matter, applicants aged 16 or 17 years, without any attendant vulnerability or special educational need or other characteristic denoting difficulty, will be presumed to have capacity and so be able to conduct proceedings in their own right. They will generally not require a litigation friend. This is the position even if they are not legally represented.

(b) The appointment of litigation friends for applicants between the ages of 12 years and 15 years inclusive (i.e. 12 and over but younger than 16) needs to be considered on a case-by-case basis and the circumstances which should be considered, but which are not exhaustive, are:

(i) whether the applicant is legally represented;

(ii) whether there is an assisting parent;

(iii) whether there is a local authority involved; and

(iv) whether the applicant has any type of vulnerability.

(c) If an applicant in this age group is legally represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative's view, a litigation friend is necessary, having regard to capacity and the position of any parent.

(d) Applicants under the age of 12 will normally require a litigation friend.

(2) The above approach is one that, as a general matter, should also be followed in appeal proceedings, whether in the First-tier Tribunal or the Upper Tribunal.

(3) In deciding who is to be a litigation friend in a particular case, the guiding principles, derived from the Civil Procedure Rules, are:

(a) can he or she fairly and competently conduct proceedings on behalf of the child?

(b) does he or she have an interest adverse to that of the child?

(4) For practical purposes, only one person should normally be nominated as a litigation friend. A parent of a child will often be the obvious choice but not the only option.

11.27 There remain no specific Tribunal procedure rules in place in assist the Tribunal as to when and how to appoint a litigation friend. In AM (Afghanistan) [2017] EWCA Civ 1123, the Court of Appeal indicated its concerns about the absence of any provision in Tribunal rules for the provision of a litigation friend like that in Part 21 of the Civil Procedure Rules 1998. In a brief concurring judgment, Underhill LJ, said (at [49]):

…a litigation friend has wide authority to dispose of a party's legal rights, either directly by bringing and/or compromising proceedings, or indirectly by the way in which he or she conducts those proceedings. Those powers ought to be clearly defined and regulated, as they are by rule 21 in cases that come under the Civil Procedure Rules . It is very unsatisfactory that they should be exercised simply on the basis of the general case-management powers in rule 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (or its equivalent in other chambers). The Senior President says … that he will ask that this decision be considered by the Tribunals Procedure Committee. I hope that the Committee will consider this aspect in particular, and as a matter of urgency.

11.27A In JS [2019] UKUT 00064 (IAC) the Tribunal noted that it had no power formally to adopt the CPR for the purposes of immigration proceedings and that the making of Tribunal Procedure Rules is a matter for the Tribunal Procedure Committee and the Lord Chancellor under the TCEA 2007. As such, it said the following on the relevance of the CPR:

77. … the CPR offer a valuable source of assistance with regard to some of the basic tenets relating to the appointment of a litigation friend and our approach ensures the Tribunal has the advantage of drawing from the well- settled principles of the CPR, whilst at the same time ensuring there is adequate flexibility to tailor those principles to the exigencies of the facts of a particular case.

Accordingly, diverging from the CPR, it held that in proceedings in the Tribunal a child appellant by no means automatically requires a litigation friend. As such, in the Tribunal, "a litigation friend will only be necessary where the child [or adult] is not capable of conducting or giving instructions in relation to the proceedings" (at [80]). The Tribunal then referred to the test of capacity in Masterman-Lister v Brutton & Co (nos 1 and 2) (CA) [2003] 1 WLR:

- the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend).

11.27B In terms of the identification of concerns about vulnerability, the Tribunal in JS [2019] UKUT 00064 (IAC) noted that a party's representative is generally best-placed to identify concerns about capacity, in particular given their access to medical and other personal information about an individual. It also pointed to the Joint Presidential Guidance Note "Child, vulnerable adult and sensitive appellant guidance" (No 2 of 2010) which sets out that: "The primary responsibility for identifying vulnerable individuals lies with the party calling them but representatives may fail to recognise vulnerability". The Tribunal also referred to the SRA Practice Note (see para 11.22 above). The Tribunal noted that "[w]here a child is legally represented, it should be for the solicitor with conduct of the case to file a witness statement attesting to the child's capacity" (at [91]). The Tribunal itself, however, should raise an issue of capacity insofar as it has concerns: see the Equal Treatment Bench Book. An appeal determined under a misapprehension of capacity will be liable to be overturned.

11.27C The Tribunal in JS [2019] UKUT 00064 (IAC) made clear that the role and duty of litigation friends in the Tribunal will be the same as under the CPR, that is, in summary, to (i) to act competently and diligently and (ii) to act in the best interests of (and without conflict with) the party for whom he is conducting proceedings (see [92]-[93]).

11.28 In the absence of procedure rules, the approach in JS [2019] UKUT 00064 (IAC) should broadly be followed in statutory appeals. The Tribunal in JS indicated that High Court forms relevant to capacity should not be used in the Upper Tribunal. In the absence of specific forms in the First-tier, an indication that a litigation friend will be sought should be made at an early stage, as soon as practicable after you are satisfied that your client lacks capacity to conduct and understand her appeal proceedings (see para 6.23). In clear cut cases, the appointment of a litigation friend may be dealt with at a PHR, or you may seek an oral CMRH to deal with the issue of capacity and appointing a litigation friend.

11.29 Where an asylum-seeker is unaccompanied, in the absence of family members or appropriate friends it may be difficult to find a person to act as a litigation friend. If your client is a child you may approach the local authority, although as noted above, particularly if there is a dispute over age, there may be a conflict of interest. In these and other circumstances where there is no appropriate litigation friend known to the Appellant, it will be necessary to approach independent charities and advocacy services, such as the Refugee Council and Mind. The charity Migrants Organise runs a Migrants Mental Capacity Advocacy Project which can help source volunteer litigation friends and mental capacity advocates and provide other advice and support. Once you have found a person willing to act as a litigation friend, it will be necessary to apply to the Tribunal for an order that he be appointed as your client's litigation friend.

11.30 Even if they have capacity, many asylum seekers will be vulnerable. Refer to the Equal Treatment Bench Book and section 7 of the Practice Direction for guidance on the approach to calling evidence from vulnerable appellants and witnesses (and see para 6.23-6.23A and 6.27 regarding the need to seek appropriate directions in such cases). The Bar Standards Board has produced a Vulnerability Good Practice Guide for immigration cases (April 2018) which aims at identifying and assessing vulnerable clients and their needs. It includes a number of fact sheets covering topics (in addition to questions of mental capacity) such as "Identifying and assessing vulnerable clients and their needs" and "Issues to consider in relation to court proceedings".

11.31 The Council of the Inns of Court has also published a series of toolkits on preparing for trial in cases involving a witness with communication needs which contain helpful guidance on a range of issues including "Identifying vulnerability in witnesses and parties and making adjustments" which includes guidance on a number of key points identified as:

• Vulnerability should be identified at the earliest possible stage and information sharing is key to achieving this.

• Certain behaviour/characteristics/circumstances are 'risk factors' and these can indicate potential vulnerability.

• Once vulnerability is suspected, action should be taken to obtain expert advice as necessary. This can be from, for example, liaison and diversion services (where they exist) for suspects, an appropriate medical expert, or an intermediary.

• Research has shown that vulnerability is often missed or not properly acted upon.

• Advocates should not assume that vulnerability in a witness or party has always been identified before the matter comes to court.

• Advocates should ensure that the interests of their vulnerable clients are taken into account and their needs are met.

• 'Special measures' and other reasonable adjustments must be considered.

11.32 Other helpful "toolkits" available on the Advocates Gateway include:

• Vulnerable witnesses in the civil courts

• Intermediaries: Step by Step

• A series of guides on questioning people with learning disabilities, mental disorder, autistic spectrum disorders, or "hidden disabilities" such as dyslexia, as well as children