Interpretation and translation in immigration cases: a conversation with Elena Shutova

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Hi and welcome to this latest immigration law conversation video. Today I have the privilege of being joined by Elena Shutova. Elena is a registered Public Service Interpreter and also a Director at the Association of Interpreters and Translators. We're going to talk all about interpreters in immigration cases today because often one of the key actors in an immigration case, an interpreter, is forgotten about and doesn't have a voice. So we're going to talk about a bit of problems and best practice today. But Elena, thank you so much for joining me. Tell us a bit about your background and what you do.

Good morning, Adam. First of all, I'm grateful for this opportunity to actually give a voice to all professional interpreters who are out there and basically living challenging situations day by day, working in tribunals and with immigration cases as well. So, me myself, I'm a lawyer and I do have a degree in law, and also I'm a professional interpreter of Albanian language. I'm registered and I have the Level 6 Diploma in Public Service Interpreting qualification, which is a mass standard for every professional interpreter in the UK. I recently have been appointed as a Director of the Association of Interpreters and Translators, but I have been their member for quite a long time.

So, I would like to tell a bit more about our association because I know not many interpreters are aware of professional bodies and associations in the UK that actually can help them, can support them, and can promote their professionalism. So AIT, well, we have a very active dialogue with the Ministry of Justice, with NHS, and with national police forces. We collaborate with universities, with intermediaries, and, for example, we have a training program with the Cleveland Clinic in London. As well, we engage with Professional Interpreters for Justice organization. We gained international recognition with recent election of AIT to the board of International Federation of Translators of Europe. As well, we have ties with the European Association of Legal Interpreters and Translators.

So what we do, we offer practical support to our members. We offer professional supervision, we offer best practice hub. As well, we offer help in chasing payments from the agencies. Unfortunately, this is the reality of the profession now. We have regular social events, we do fundraising, we sponsor the London Legal Walk. As well, for our associate members, we have a job referral system. So somebody who, for example, a legal professional who needs an interpreter and cannot find one, they can become an associate member, which is free, and we can then do the job referral. And as well, we offer a match frequency and a very, very busy calendar of continuous professional development. So webinars with the police speakers, with lawyers, with doctors, you name it. So we do maintain and help to maintain our members the best possible professional level for their day-to-day work.

That's really helpful. I've only recently become aware of AIT and the work they do, but I think that's fantastic that registered interpreters can join you to benefit from your development program, the training. But also, so can I just get this right from you, a lawyer like me or a solicitor watching this can become an associate member for free and then ask, get referrals from you in terms of interpreter referrals?

Yes, or we would be very, very delighted if the associate member, for example like yourself, or if some solicitor or probably a tribunal judge can come and do the joint training with us. Yeah, because that's what we do. We have a joint training with police forces, with police negotiators. It is a very unique training where we do talk about best practices, how to work with police negotiators, and how they can work with interpreters. That's what we really would like to do, is to have a joint training with somebody who knows the in-depth process of how the legal industry functions, courts, tribunals, etc.

No, that's fantastic. So I would encourage actually immigration lawyers watching, the details are below this video to become an associate member of the AIT in order to access these resources. And what I'll also do is put a link below this video to a webinar I'm going to do with the AIT, I think in this spring, summertime, I think around June, giving a sort of update on immigration law practice and procedure. So whether you're an interpreter watching this, it'll be a sort of what's going on in the immigration world. And if you're an immigration practitioner, there'll be plenty of stuff for you.

So, do come along to those events. And I was struck by the frequency of the events. But you talked about challenges already. What challenges do you and your members face? I know in lots of areas of law, but let's look particularly today in immigration cases, both applications and in the tribunal. What are the challenges you face as an interpreter?

So, first of all, the biggest challenge is that we come across many documents and many expert reports when solicitors fail to instruct a proper interpreter. So the first no for us and first encouragement to the legal professionals is to instruct a professional interpreter. Sometimes I, I've heard this from solicitors both in immigration and in criminal law, that they don't know where to find an interpreter. So what they can do, there is a National Register of Public Service Interpreters. It's free for everyone. So all you need to do is just to create an account there, and then you can browse and find yourself an interpreter. An interpreter whose qualifications have been checked, yeah, by the register. The most of them, most of us, are vetted interpreters. So somebody has just a DBS, just enhanced DBS. Some interpreters have a security clearance as well for work with NCA. So it's a higher level of interpreter with a good vetting.

Then you can ask and browse the register of Chartered Institute of Linguists or to visit the web page of the Institution of Translators and Interpreters, ITI. Or as well, as I said, you can become an associate member of AIT and ask us to find you an interpreter. So those interpreters are 100% professionals, so you can rely on their help. So you know that your client, especially if there's a vulnerable client, you won't miss the information because, well, we both, like me and you, Adam, we both work with laws. I'm a lawyer. I know that one word can become a crucial fact in the case. Guilty, not guilty. Yes, no. I've been there, I haven't been there. Sometimes it's just one word which changes everything. So using an unprofessional interpreter, or especially family members, it's a no. Please, I do encourage everyone, use a professional interpreter because professional interpreters as well, they do understand legal terminology.

And trying to instruct a professional interpreter, what else do you need to do? You need to understand which dialect they speak. Dialects, yes. Dialects are very important, especially when we talk about Eastern countries like Eastern Europe. Because I work with Albanian language, and even though Albania is a small country, we have South Albanian dialect, Northern Albanian dialect. We have dialect from Kosovo people, we have people from North Macedonia speaking Albanian language. These are all different dialects. So whenever you instruct a professional interpreter, make sure that they speak the same dialect. Otherwise, you won't get anything out of the session with a limited English speaker and your client as well.

Instructing a professional interpreter will help you to understand that this interpreter follows the code of conduct, because we must remain neutral. We are impartial. We are just the voice. And when instructing an unprofessional interpreter or informal interpreter or family member, you will never get this neutrality. You are always in the risk of having information omitted and ending up having a witness statement which says one thing, and when it comes to tribunal, appellant says no, I haven't said that. But it was read to you by an interpreter. No, but I don't know this interpreter, or it was my father. So it's a totally different thing, right?

There's another challenge that we face every single day, which is that we usually don't get briefed. It is very, very important for an interpreter to have information, well, at least basic information, beforehand. Especially when it comes to tribunal hearings. So, for example, if you, Adam, have just received a case in the morning, what will you do? You will ask for an adjournment, would you?

No, absolutely, if you weren't properly prepared.

Yeah, so the same applies to an interpreter. But we cannot ask for an adjournment, can we? We don't. We are the only clueless person in the room at the point of time, because tribunals think that it is not necessary to give us time to talk with representatives or at least to talk with the representative of the Home Office. So we know basic things about the case, issues, and the problems that they are going to resolve. That's with regard to tribunals.

The other challenge at the moment is that in tribunals there are different directions. So every tribunal is different and every judge is different. From my own practice, I had cases when the judge didn't expect me to interpret everything. So he told me, "Madam Interpreter, why do you interpret the first part of the hearing? You don't need to do this." For which I said, "Your Honor, you're not a judge. If this person spoke English, he would have heard what you say. So I'm here to interpret everything so he knows what the representatives are talking about. Maybe there's a document missing, maybe there's a problem which the appellant is not aware of."

And then some judges ask us to summarize only, which is a no. So I do encourage all legal professionals, solicitors, and representatives who represent their clients in tribunals, please do not agree for the summaries, because we are not legally trained. There's only a handful of us who actually have a diploma in law like myself. But most of interpreters are just interpreters. We are linguists. Of course, when we are trained, especially as conference interpreters, we know how to do the summary, but it doesn't apply for legal information. It doesn't apply for medical settings because we're not allowed to do this, and this is forbidden by the code of conduct. We can only do this in exceptional circumstances, and I don't think that it applies to the tribunal hearing. So, the tribunal hearing is not an exceptional circumstance.

When the judge thinks that it is best to do the summary, what I do is always ask the representative to ask the judge if the judge themselves can do the summary.

Yeah, that's really helpful actually because a lot of what you raise has started my mind going in lots of different directions and lots of thoughts. Because I think, let's take that for a minute. There is a practice at the moment where a lot of judges will ask, 'Oh, do you want' and they'll ask me, 'Mr. Pipe, do you want the submissions interpreted word for word or a summary?' And sometimes I'll opt for a summary because I think, 'Oh, the client will just get confused by legal terminology.' But actually, your function, as you say, is just to do something, you know, and just to be a conduit. You're not there.

Actually, let me—I'm going to flag up some cases for people. There's a case called Muhammad Role of Interpreter, Somalia, which is 2011 UK UT 337, and that said specifically, the function of a court-appointed interpreter is to interpret on behalf of the tribunal what is said at the hearing, including the appellant's evidence. It's no part of the interpreter's function to be drawn into a position where he or she has to give evidence at the hearing. Now, that was a Somali case in terms of what dialect, and you've already talked about dialects and trying to use the interpreter saying, 'Yes, they speak this dialect,' as giving evidence in the case.

I think also the differing practices in the tribunal are stark. You know, there is a huge difference, and it's interesting. Some judges criticize you for interpreting everything. I know we've chatted offline, and you brought my attention to the really helpful section on interpreters in the Equal Treatment Bench Book. I'm sure you're going to come to that, but let me just say, it says at paragraph 99 of the Equal Treatment Bench Book: 'It is not good practice to tell the interpreter that an aside or something unimportant need not be translated. This can make the witness feel excluded or even distrustful.' So, there's some really good stuff in the Equal Treatment Bench Book there.

And that—that's just—the Equal Treatment Bench Book deals with things like vulnerability. What are the particular challenges and issues you find with vulnerable clients?

So, when working with vulnerable clients, yes, the first, the biggest challenge is the trauma response that they have when they relive their history, their account, when giving the witness statement or explaining what has happened in the tribunal. So, first of all, when a solicitor is instructing an interpreter to work with a vulnerable client, they have to make sure that there is no conflict of interest. And I will explain why. For example, in my case, when I work with the Albanian language, the Albanian community is very small, and Eastern European countries tend to have very tight communities and strong ties with back home. So, solicitors have to make sure, by talking to an interpreter and explaining what the case is about and which part of, for example, Albania the person is from, that there is no possible conflict of interest. The interpreter won't be drawn into a situation where he or she can become a witness, or the person will feel very uncomfortable by knowing that—for example, I have been in this situation myself.

I went to assist a particularly vulnerable client, and we ended up being from the same part. So, I lived in the same part of Albania as she did, and we knew the same people. I had to withdraw from the case. This is very, very, very important. Tribunals don't do this, but solicitors, when they have the ability, have to make sure, first of all, that there is no conflict of interest. Second, they have to make sure that they instruct an interpreter and explain the possible trauma triggers because we're all people. Despite the fact that we are impartial, some of us can be triggered by trauma as well, and then we can relive the account that has been told to us or through us. It’s called vicarious trauma.

Vicarious trauma is a big, big issue, certainly in—but also there's that issue of people when they recount. I've had a lot of experts, medical experts, say when a client gives evidence about trauma, they're re-experiencing that trauma through giving evidence, and that's something—

Absolutely, yes. There's one thing else. Some of the clients, they do have a good command of the English language, but what I would suggest is the interpreter is always necessary in taking their account, in reading and writing down the witness statement, or preparing for the interview. Because when somebody talks about their traumatic experience, they experience a very high level of anxiety, which blocks the cognitive ability to use the English language. So, they won't be able to give you a full account. It is very important to have a properly trained, professional interpreter by your side so your client can give you the full account. As I said, one word matters.

I think that's so important. One of the things I've tried to emphasize—and I'll put the link below this video—is the changes brought about by the new tribunal practice direction. And again, that emphasizes the importance of witness statements, including the correct interpreter attestation at 8.12 of the practice direction. So, make sure if you're drafting witness statements, the correct interpreter attestation is there. But given the witness statement is so important in a case, having—taking time with vulnerable clients through a professional interpreter to make sure that story is properly articulated, especially when there is not now the opportunity in court to ask questions in chief. Judges want to move straight to cross-examination. So, I think that's so important.

Also flagging up—I think you raised something important. It's a lawyer's duty to make sure—now this should be done in the pre-hearing stage through MyHMCTS, through the skeleton argument, but also should be reiterated on the day of the hearing—is flagging up those vulnerabilities. If people have that issue with talking about traumatic events—I've had to recently do it a lot with, in the Albanian context, women who've been trafficked from sexual servitude. You know, and there's that issue that there'll be retraumatization if it isn't done appropriately. Certainly, and I think what you raise is so important, about that somebody from the same community as you may not want to disclose their account in front of you because of issues of shame. I think that's so important.

Let’s look at some positive stuff. Let’s talk about some best practices. What would help you? I’ve touched upon—I've already flagged up—the Equal Treatment Bench Book. If there’s anything else you want to point our attention to, what are some things that would help you most?

Just one thing I wanted to pick up before we do that is, in the tribunal, obviously there are difficulties, and representatives need to be careful about talking to interpreters before the hearing so the judge doesn’t think you’re sort of interfering with the interpreter. Although, what I tend to do is, when I’m in court, I might say to the interpreter, “Oh, this is a marriage case. The issue in this case is insurmountable obstacles,” or, “This is an asylum case.” It’s just to flag up in the interpreter’s mind that this is what the issues are. It is the judge’s role to make sure the interpreter is understood.

Can I just—you know, I think you flagged up already—there’s often blame put on interpreters. Clients will try to blame interpreters for discrepancies in their statements, and then lawyers will try to blame interpreters when appealing. There’s a case that people should be aware of. It’s called TS (interpreters). It’s an Eritrean case, 2019 UK 352. That’s TS interpreters, and it says the tribunal will be slow to overturn a judge’s decision on the basis of alleged errors or problems with interpreting. But it talks about the assessment that the judge should undertake to make sure there are no problems at the start of the hearing and how to deal with problems if they arise. So, have a look at that case. But let’s get on to some positive best practices.

Hey, just a quick comment on that. You can always use a professional interpreter. Using a professional interpreter—a registered and accredited public service interpreter—always minimizes the risk of having information being changed and of going into the appeal to the upper tribunal or high court just because there was probably a large mistake in interpreting or translation. So, yeah, please do use professional interpreters.

And with regards to judges thinking that we might be involved in the case, we have a professional duty of confidentiality. We are there. I understand they think that we might talk to the appellant, but we never do. We can talk to the professional, to the representative—maybe with yourself—but there’s always a representative of the Home Office present. We don’t have any interest with the representative of the Home Office. They can always just give us a small summary, a quick summary of the case. Okay, so we know. We can tune ourselves in, you know what I mean? That helps, because in some cases you can talk about human trafficking, and the next thing you know, you have a victim of a war conflict. Two different scopes of terminology, and you have to tune yourself in. It’s just quick instructions.

With regards to best practices, when we chatted, I already told you that the perfect day of life for an interpreter would be if everyone followed the Equal Treatment Bench Book—particularly the chapter with regards to interpreters and the one before this one, which is when the judge is addressing or dealing with cases involving people for whom English is not their first language. So, I would suggest everyone read that one as well. Because some interpreters, despite the fact that we are professionals, English is not our first language. Sometimes, it’s actually really helpful if people would start talking slowly, especially Home Office representatives.

So, yeah, best practice is: hire a professional interpreter. Make sure that they do understand your client. Brief your interpreter. Explain to them what this case is about in summary, because we don’t need to go into details. The cases are huge; we can’t know all the details. But at least we have to know the problems, the issues. Make sure that you explain to your interpreter that if they see or feel that there’s a certain cultural difference, they have to flag this cultural difference to you.

There’s one small example. In Albania, some people use old money; some people use new money. So, 100 can turn into 1,000 because somebody will say, “Yeah, it’s old money.” And there are a lot, a lot, a lot of other cultural differences. A professional interpreter would usually do this, but you have to explain these things to your interpreter before.

What else? Those are really helpful things. Can I ask you just one question that came up? We’re talking now on Zoom. We’ve had no communication difficulties, but often these days, especially when there are late bookings of interpreters, interpreters will come into the tribunal on the CVP link. Do you find any particular challenges when doing online hearings? You know, let’s say myself, the judge, the Home Office, and the client are in court, and you’re there on video—which often happens. Are there any particular challenges there for you? Is there anything we could do to help get the best out of the interpreters and ensure the best sort of experience for clients?

Please use the microphones. Absolutely. The biggest challenge at the moment is the technical problems: the equipment and the quality of connection in other tribunals. Sometimes we do not hear at all. I’ve been assisting with one case as a tribunal interpreter where there were no microphones working. The only working microphone was the judge’s microphone, and they had to kind of share this microphone and move it around to the appellant so I could actually hear what he was saying. That is the biggest challenge. Because when you are remote and you cannot hear properly, you can always make a mistake. Just one letter can change a word, and one word can become a fact.

I’ll give you an example. There was this case in SNB Crown Court where the interpreter said—I think it was “beat” and “bit.” So, somebody got beaten up or was bitten by a dog. I don’t really know the details of the case, but I’ve heard about it. So, one letter can change everything.

It’s so true. A week ago today, I was doing a case involving somebody’s wife who has medical illnesses. She’s living in Pakistan. The client was asked, “Are you satisfied with the treatment she’s getting there?” and the answer was yes. When I came out of court, the friend—who actually is an interpreter himself—said to me, “Oh, the answer was no. I was not satisfied.” But the interpreter completely turned it around. Fortunately, we succeeded in that case, and that issue didn’t make a difference. But what you say is so right: little things can make a huge difference.

I think if there are two things that come away from what you’ve said today, it’s the importance of using a professional interpreter. That’s correct. I think I often see clients—I encourage clients, as I said to you earlier, to get expert reports. They shell out a lot of money, but then they use a family member to interpret for the social worker. Then the Home Office says to the judge, “How can we trust what’s said in this? What was being said was being relayed through a family member who’s got a vested interest.” So, yeah, I think that’s so important.

The second thing is, I think, hopefully, what we’ve said today makes people also think from the interpreter’s perspective. Perhaps, you know, I’m guilty as much as anybody else. When we’re dealing with cases, are we just taking on board the interest of the interpreter? To make sure, ultimately, it serves your client and your client gets the best because the interpreter is well-served.

Elena, is there anything else you want to leave us with? Sorry, I’ve talked a lot. But anything else before we finish up?

Well, at this point in time, I think I’ve covered everything that I wanted. But yeah, just please brief your interpreter. Use a professional interpreter and brief your interpreter. When you are in a tribunal, especially with a vulnerable client, please make sure that the summary of what has been said is done by the judge and not by the interpreter. Because we are not allowed to cherry-pick information, and we are not legally trained to do that. I know some judges are quite shocked by this information. I’ve been there—literally, not yesterday, but the day before yesterday. I’ve been in the same situation when the judge called me unprofessional just because other interpreters were okay with doing summaries of hour-long submissions and putting them into writing in three different sentences. We are not allowed to do that. We are not there to do this. We are there to be the voice and ears of your client.

You know, it’s something I need to go away and think more about because I think you raise something important there. By asking an interpreter to summarize, you’re putting an interpreter beyond just a conduit of information. They’re then having to select what information they translate, and that’s a real challenge.

Can I just give people some resources to go away with? Elena and I have talked about the Equal Treatment Bench Book, and I've talked about the Practice Direction. All the links will be below the video.

At 13.1 of the Practice Direction for the tribunal, it says the tribunal must have regard to the latest version of the Equal Treatment Bench Book. So, actually, the tribunal Practice Direction says that regard must be had. I'll put a link to the Equal Treatment Bench Book. Elena talked about the section before the one on interpreters, which is about communication with speakers of English as a second or third language. That starts at paragraph 68 of the Equal Treatment Bench Book.

The section that follows is the section on interpreters, and I just wanted to close by reading this paragraph from the Equal Treatment Bench Book. Then, Elena, I'll come back to you to tell us how people can reach out to you and the association to find out more.

Paragraph 88 says this:

"An interpreter has a difficult job. Languages do not interpret in ways which identically match each other. They can differ in grammatical structure, vocabulary, the meaning of certain abstract concepts, and in how much is directly spoken as opposed to understood between the lines. The interpreter's job is to transfer as near as possible the meaning of what is said by each side, not merely to translate words and phrases literally, which can create a false impression."

So, loads of brilliant information in the Equal Treatment Bench Book. I’d encourage representatives, especially those dealing with vulnerable clients, to delve into that because it now has to be taken into account in immigration cases. I'll also link the cases we've talked about.

Elena, in terms of reaching out to you for anybody who wants to connect with you or the association in terms of membership as an interpreter—and I've encouraged the association and interpreters to get along to those court users’ meetings at the tribunals—they're open to you. Don’t think they're only open to lawyers. You can get your voice heard as well, and people can also hear from you and learn about the needs of interpreters. But how do people connect with you guys?

So, we do have social media accounts at the very least—it’s LinkedIn, Facebook. You can always reach us there. There’s also an email: info@AITprofessionals.com. So you can either message us on social media or send us an email, and we'll get back to you as soon as possible. We tend to reply within minutes because we really are there to support professionals and support our members to provide the best possible service for limited English speakers and their clients.

That's really helpful. And you don’t have to be a member to come to the training events as well. You can sign up on Eventbrite. So I hope to see people at the event I’m doing with AIT later in the year, but there’s a ton of other events. Look on Eventbrite as well. All the events are listed, and you can claim CPD. Whether you're an interpreter or a lawyer, you know it’ll be mutually beneficial.

Elena, thank you so much for coming on today. Thank you for the time you've spent and what you’ve shared. Really appreciate it.

Thank you, Adam. It’s been a pleasure.

Thank you.