Interpreters and alleged errors during a hearing TS (interpreters) Eritrea [2019] UKUT 00352 (IAC)

The Upper Tribunal (Immigration and Asylum Chamber) has published new determination TS (interpreters) Eritrea [2019] UKUT 00352 (IAC)

(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. 

Source: LexisNexis

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