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Interpretation problems in immigration proceedings: how grave can they be?

Posted by: Gherson Immigration

The quality of interpretation and the professionalism of the court interpreter are of the utmost importance in immigration proceedings, especially in asylum or extradition cases, where the stakes are high. Serious concerns about the interpreter’s professional behavior can even cause the court decision to be set aside, as happened in a recent asylum case.

At the First-tier Tribunal hearing of this case the official court interpreter simply failed to translate everything that the appellant said. The appellant, who understood some English, brought this to the Immigration Judge’s attention. A second interpreter, who was present at this hearing and who had been hired by the appellant’s solicitors, also noticed inconsistencies in the translation provided by the court interpreter and made the appellant’s barrister fully aware of the problem. The appellant’s barrister proceeded to apply for the case to be adjourned and re-heard on this basis. The application was refused, however. The judge stated that the attendance of an additional interpreter was “an unnecessary expenditure of public funds” and suggested that the application was just a tactical move by the barrister in order to “lay the ground for an appeal in the event of this appeal being unsuccessful”.

This case highlights a systemic problem that occurs where interpreters are required in the Courts and the Tribunals. Good translators are very difficult to find and in many cases for the case to go ahead, there is inevitably a compromise. The judges needs to strike a balance between appellants who are trying to disrupt or delay proceedings and the interests of justice where an appellants case could be wrongly decided because of inferior or inaccurate translation. 

The sequence of events, which followed the above hearing, was even more problematic. The court interpreter approached the appellant’s barrister at the bus stop, where they had met accidentally, and in an “aggressive manner” accused the appellant of lying about her home country being unsafe and said she was sorry for the judge dealing with “these types of cases”. The startled barrister described this incident in a witness statement, which was then submitted to the judge. The First-tier Tribunal took no action, however.

The barrister then appealed to the Upper Tribunal. The Upper Tribunal delivered a ruling in which it stated that the first instance judge’s reasons for dismissing the appeal were based mainly on the written evidence and that is why the issues with interpretation at the hearing would not be sufficient to overturn the decision. The Upper Tribunal stressed that the general principle to follow in such cases should be that “the appeal is unlikely to succeed if there is nothing to suggest the outcome was adversely affected by inadequate interpretation”. However, the interpreter’s behavior after the hearing raised “very grave doubts as to the interpreter's independence and impartiality” and it was for this reason that the appeal was allowed and the case was sent back to the First-tier Tribunal to be re-heard by a different judge. The Upper Tribunal also suggested that the barrister’s witness statement describing the bus stop incident probably never reached the judge, as a document of such grave content would not have been ignored. 

The Tribunal went out of their way to stress that it was the interpreter’s lack of independence and impartiality that gave grounds to allow the appeal. But the issue of improper interpretation, which is a common problem, appears to have been sidelined.

Nevertheless, this case presents a beacon to all legal professionals: measures should always be taken to spot interpretation issues, as they can potentially affect the court’s decision. The default recommendation for appellants is to hire their own interpreter where possible (not only in order to ease communication between the appellant and his legal representatives but also to quality-check the work of court interpreters).

Gherson have extensive experience in acting for individuals in asylum and other immigration proceedings where translation and interpreting are essential aspects of the case. If you have any questions or queries in relation to this, please do not hesitate to contact us.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2019

 

Elena Vaina 

  Elena Vaina

  Paralegal in our Complex Case team

 

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For advice on immigration, nationality, extradition or human rights, please contact us now.

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