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Appeal overturned after bus stop rant by court interpreter
Credit: Aubrey Morandarte on Flickr

Appeal overturned after bus stop rant by court interpreter

An asylum appeal by an Eritrean woman, initially rejected by an immigration judge, has been overturned by the Upper Tribunal after it emerged the court interpreter embarked on a political rant to the woman’s barrister at the bus stop outside court afterwards.

The case is TS (interpreters) Eritrea [2019] UKUT 352 (IAC). Complaints about the quality of the interpreter were made during the original First-tier hearing. As a matter of good practice, the solicitors had employed an interpreter to attend the tribunal to interpret for the appellant and her barrister before the hearing and then to stay for the hearing. It was alleged by the solicitor’s interpreter and the appellant herself that the official court interpreter was not interpreting everything that the appellant said.

Problems with the interpreter during and after the hearing

Several notes were passed to the appellant’s barrister by the solicitor’s interpreter and the barrister applied for the case to be adjourned and re-heard. This application was refused by the judge hearing the case, understood by Free Movement to be now retired judge Geraint Jones QC.

Dismissing the appeal, the First-tier judge was implicitly critical of the attendance of an additional interpreter, emphasising the cost to the public purse. The judge also suggested that the application by barrister conducting the case was “manoeuvring” tainted by “a whiff of tactics” to lay the ground for an appeal if the case should be dismissed.

That was not the end of it. After the hearing, the court interpreter had been waiting at the bus stop at Hatton Cross and, when the barrister by coincidence arrived there, the interpreter approached the barrister in a “confrontational or aggressive manner”. She claimed that the appellant had been lying as the interpretation was accurate, that Eritrea was safe, the war is over, the borders are open, the people are celebrating, there is no danger there, and the appellant faced no danger there at all. The interpreter added for good measure that she felt sorry for the judge who has to deal with these types of case.

This was recorded in a witness statement by the barrister and submitted to the First-tier judge, but it never seems to have reached him.

Appeal allowed by Upper Tribunal

The Upper Tribunal found that the problems about interpretation at the hearing itself alone would probably have been insufficient to overturn the decision because the judge’s reasons for dismissing the appeal were founded mainly on alleged discrepancies in the written evidence.

But the comments of the interpreter after the hearing were so concerning that the appeal had to be allowed. These uninvited comments

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

The appeal was therefore allowed and the appeal sent back to the First-tier to be re-heard by a different judge and interpreter.

Complacency about interpreters and distrust of appellants

The right outcome was eventually reached but there are unsatisfactory features to the Upper Tribunal determination.

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There is nothing on the face of the determination to suggest that the interpreter in question was to be prevented from being used in other cases in future.

Linked to that, the determination offers no acknowledgement that the problem here was not incompetence but malice on the part of the court interpreter. The only reason the problems in this case were treated seriously is because of the chance encounter at the bus stop. How many times have interpreters with political views deliberately undermined an appellant’s case because the interpreter disapproves of a refugee’s conduct? Indeed, how many times has this particular unnamed and unknown interpreter gotten away with it? There is nothing in the determination about how complaints about malevolent interpreters might be properly investigated.

The very serious allegations of the First-tier judge against counsel are recited but no further comment is made. In fact, the headnote (which reads as if for a different case) says that where a complaint is made the judge must consider whether the complaint “appears to be motivated by a desire to have the hearing aborted, rather than by any genuine material concern over the standard of interpretation” and goes on to say that “preventing a party or representative from behaving in an intimidating or oppressive way towards the interpreter” is part of the judge’s function.

It is abundantly clear with hindsight that the First-tier judge’s allegations against the barrister in this case were utterly unfounded and the Upper Tribunal should have very clearly said as much. The appellant’s barrister was courageous and entirely correct, we now know, in raising the complaints at the hearing. To make matters worse, the tribunal sees fit to say “there is no reason to doubt the contents of the statement” made by the barrister. Indeed. So little reason, in fact, that there was simply no need to say this. It only serves to admits the possibility that the barrister might have deliberately lied.

The tribunal might be keen to avoid tactical complaints about interpreters becoming commonplace. But there is no evidence to suggest that is a problem. The tribunal’s attitude is symptomatic of its distrust for appellants and their lawyers and the facts of the particular case actually suggest that problems with interpreters can and should be taken very seriously indeed. The determination, and particularly the official headnote, seems an inadequate and even complacent response to a potentially very serious issue.

That official headnote

(1) An appellate tribunal will usually be slow to overturn a judge’s decision on the basis of alleged errors in, or other problems with, interpretation at the hearing before that judge (Perera v Secretary of State for the Home Department [2004] EWCA Civ 1002). Weight will be given to the judge’s own assessment of whether the interpreter and the appellant or witness understood each other.

(2) Such an assessment by the judge should normally be undertaken at the outset of the hearing by the judge (a) putting questions to the appellant/witness and (b) considering the replies. Although he or she may not be able to speak the language of the appellant/witness, an experienced judge will usually be able to detect difficulties; for example, an unexpected or vague reply to a specific question that lies within the area of knowledge of the appellant/witness or a suspiciously terse translation of what has plainly been a much longer reply given to the interpreter by the appellant/witness. Non-verbal reactions may also be factored into the judge’s overall assessment.

(3) Where an issue regarding interpretation arises at the hearing, the matter should be raised with the judge at the hearing so that it can be addressed there and then. Even if the representatives do not do so, the judge should act on his or her own initiative, if satisfied that an issue concerning interpretation needs to be addressed.

(4) In many cases, the issue will be capable of swift resolution, with the judge relying upon the duty of the parties under rule 2(4) of the Procedure Rules of both of the Immigration and Asylum Chambers to help the Tribunal to further the overriding objective of dealing with the case fairly and justly.

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

(6) It will be for the judge to decide whether a challenge to the quality of interpretation necessitates a check being made with a member of the Tribunal’s administrative staff who has responsibility for the booking of interpreters. Under the current arrangements for the provision of interpreters, it may be possible for appropriate enquiries to be made by the administrative staff of the Language Shop (a quality assurance service run by the London Borough of Newham in respect of the Ministry of Justice’s language contract), as to whether the interpreter is on the register and whether there is any current disclosable issue regarding the interpreter. The initiation of any such enquiries during a hearing is, however, a matter for the judge. In practice, it is unlikely that it would be necessary or appropriate to take such action. In most cases, if the standard of interpretation is such as seriously to raise an issue that needs investigating, the point will probably already have been reached where the hearing will have to be adjourned and re-heard by a different judge (using a different interpreter).

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

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

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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