[2005] UKIAT 11
- Case title: DC (Interview through interpreter, Language ability?)
- Appellant name: DC
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Philippines
- Judges: Mr J Freeman, Dr A U Chaudhry, Mr P Rogers JP
- Keywords Interview through interpreter, Language ability?
The decision
LSH
Heard at: Field House
On 8 December 2004
DC (Interview through interpreter- language ability?) Philippines [2005] UKIAT 00011
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 09.12.2004
Issued: 20.01.2005
Before:
Mr JG Freeman (vice-president)
Mr P Rogers, JP
Dr A U Chaudhry
Between
Entry Clearance Officer, MANILA
appellant
and
respondent
Representation:
Mrs S Poulter for the entry clearance officer
sponsor, in person
DETERMINATION AND REASONS
This is a Home Office appeal against the decision of an adjudicator, Mr Mr P Bompas Shaerf, sitting at Taylor House on 12 February 2004, allowing the appeal of a citizen of the Philippines against refusal of entry clearance to come here as a student on a three-year course leading to a diploma in Health and Social Care. The notice of refusal set out the Entry Clearance Officer’s reasons at some length: the relevant ones referred to the claimant’s English ability, and to the question of whether the course she proposed to study was available in the Philippines. The adjudicator’s decision is challenged on the way on which he dealt with those points and also in respect of what he had to say about the claimant’s intention to leave this country after the course:
19. Intention to leave at the end of the proposed course whose duration is three years, is difficult to assess. I accept that the appellant has been unclear as to her intentions at the end of the course. This may reflect her general uncertainty and also that she has focused on coming to the United Kingdom to undertake the course rather than in detail on what she will do at the end of the course.
20. She would be leaving her husband and her only child in the Philippines. On the evidence before me, I am satisfied that it is more likely than not that the appellant will return to her husband and child in the Philippines at the end of her studies.
2. What the appellant had said at interview in answer to questions on this point was this:
17. How will the course benefit you?
(Answer) More on social care and through study and I can get an advanced diploma and when I come back here I can find a job.
18. What will you do on completion of your studies?
Answer: Come back here then may be get a job in UK or here.
3. The evidence on this point certainly was ambiguous and the claimant may be regarded as fortunate as to have had the favourable decision which she did from the adjudicator on it. However, Mrs Poulter realistically conceded that the adjudicator’s decision on this point cannot be said to involve an error of law, which leaves us with those taken in the notice of refusal on the claimant’s standard of English and the availability of such courses in the Philippines.
4. There was no finding on either of these points by the adjudicator although they had been clearly taken in the notice of refusal and, at least so far as the availability of other courses are concerned, pursued by the presenting officer at the hearing: see paragraph 13. That was in our view certainly an error of law.
5. So far as the claimant’s standard of English is concerned, the refusal on that ground was based on her choice to be interviewed through an interpreter in Tagalog. It is said in the explanatory statement:
As a matter of course here in the British Embassy we routinely ask applicant in which language they wish to conduct their interview and if they need an interpreter. The fact that this interview was conducted in Tagalog with an official interpreter was because the appellant requested it.
6. We do not regard that as an adequate opportunity for applicants for entry clearance to demonstrate their knowledge of English. In our view, if the fact that a applicant has chosen to be interviewed in her native language is to be relied on to show her lack of English, then a clear warning should be given first that it is for her to show her knowledge of English, and interview through an interpreter may not make this possible.
7. There still needed to be evidence and a finding by the adjudicator on the claimant’s standard of English. We have had some evidence in the form of an official transcript of her school record which shows that at the end of her studies she got a mark of 90% in her English examination. That in itself might not necessarily say anything conclusive about the spoken English she would require to follow a course in this country. However, as most reasonably well-informed people know, English is very much used to this day in the Philippines. We note from the official transcript that all the courses taken (including, interestingly, “Social Graces”) are denominated in English, with the exception of two named in Tagalog.
8. Together with the sponsor’s assurance that these courses were taught in English, we regard that as sufficient evidence that this claimant did have at least reasonable English skills, and Mrs Poulter did not suggest that that was a conclusion to which we would not be entitled to come. If the claimant had needed remedial English, we should have regarded Mrs Poulter’s other point about the letter (sent after the decision on 8 May 2003) as reasonably made, in that the course had already been going for a month by that time, and, if it had been needed, serious improvement the claimant’s English might have been difficult at that stage; but, for the reasons we have given, that does not arise.
9. That leaves us with the other point about the availability of similar courses in the Philippines. This is put forward in the grounds of appeal on the basis of the Tribunal decision in Nduhura [2002] UKIAT 01613. It was not suggested by Mrs Poulter that this decision was anything more than one on the facts of the case, which showed simply that the availability of similar courses in a claimant’s country of origin was something that did need to be taken into account. Clearly, as we have said it was a live issue in this case, and one the adjudicator did need to deal with, although it would not have prevented him finding in the claimant’s favour if he had done so.
10. We do not think this is a point we can resolve for ourselves in the same way as we have done with the question of the claimant’s English ability. It had a bearing on the whole question of her intention, or not, to stay here after she had finished the course for which she had applied. We do not think it would be right to ask Mr Shaerf to reconsider this case on the question of the availability of such courses in the Philippines, because in effect he had already decided the question to which that was relevant. The claimant’s case on this point, as put by the sponsor, is quite simply that a British qualification would have greater value world-wide than a Filipino one. This may well be right and is also something that needs to be taken into account.
11. However, we should make clear that where a serious issue is taken in the refusal notice, and particularly if it is pursued by the presenting officer before the adjudicator, it does need to be dealt with. We cannot supply that deficiency in Mr Shaerf’s decision for the reasons we have given, and the result is that there must be a fresh hearing before another adjudicator, which however will be limited to the question of whether this claimant intended to leave this country at the end of her studies here, and need not be concerned with her English abilities. To that extent the Home Office appeal is allowed and the case remitted, not to Mr Shaerf.
John Freeman
(approved for electronic distribution)
Heard at: Field House
On 8 December 2004
DC (Interview through interpreter- language ability?) Philippines [2005] UKIAT 00011
IMMIGRATION APPEAL TRIBUNAL
Corrected transcript of decision given at hearing
Signed: 09.12.2004
Issued: 20.01.2005
Before:
Mr JG Freeman (vice-president)
Mr P Rogers, JP
Dr A U Chaudhry
Between
Entry Clearance Officer, MANILA
appellant
and
respondent
Representation:
Mrs S Poulter for the entry clearance officer
sponsor, in person
DETERMINATION AND REASONS
This is a Home Office appeal against the decision of an adjudicator, Mr Mr P Bompas Shaerf, sitting at Taylor House on 12 February 2004, allowing the appeal of a citizen of the Philippines against refusal of entry clearance to come here as a student on a three-year course leading to a diploma in Health and Social Care. The notice of refusal set out the Entry Clearance Officer’s reasons at some length: the relevant ones referred to the claimant’s English ability, and to the question of whether the course she proposed to study was available in the Philippines. The adjudicator’s decision is challenged on the way on which he dealt with those points and also in respect of what he had to say about the claimant’s intention to leave this country after the course:
19. Intention to leave at the end of the proposed course whose duration is three years, is difficult to assess. I accept that the appellant has been unclear as to her intentions at the end of the course. This may reflect her general uncertainty and also that she has focused on coming to the United Kingdom to undertake the course rather than in detail on what she will do at the end of the course.
20. She would be leaving her husband and her only child in the Philippines. On the evidence before me, I am satisfied that it is more likely than not that the appellant will return to her husband and child in the Philippines at the end of her studies.
2. What the appellant had said at interview in answer to questions on this point was this:
17. How will the course benefit you?
(Answer) More on social care and through study and I can get an advanced diploma and when I come back here I can find a job.
18. What will you do on completion of your studies?
Answer: Come back here then may be get a job in UK or here.
3. The evidence on this point certainly was ambiguous and the claimant may be regarded as fortunate as to have had the favourable decision which she did from the adjudicator on it. However, Mrs Poulter realistically conceded that the adjudicator’s decision on this point cannot be said to involve an error of law, which leaves us with those taken in the notice of refusal on the claimant’s standard of English and the availability of such courses in the Philippines.
4. There was no finding on either of these points by the adjudicator although they had been clearly taken in the notice of refusal and, at least so far as the availability of other courses are concerned, pursued by the presenting officer at the hearing: see paragraph 13. That was in our view certainly an error of law.
5. So far as the claimant’s standard of English is concerned, the refusal on that ground was based on her choice to be interviewed through an interpreter in Tagalog. It is said in the explanatory statement:
As a matter of course here in the British Embassy we routinely ask applicant in which language they wish to conduct their interview and if they need an interpreter. The fact that this interview was conducted in Tagalog with an official interpreter was because the appellant requested it.
6. We do not regard that as an adequate opportunity for applicants for entry clearance to demonstrate their knowledge of English. In our view, if the fact that a applicant has chosen to be interviewed in her native language is to be relied on to show her lack of English, then a clear warning should be given first that it is for her to show her knowledge of English, and interview through an interpreter may not make this possible.
7. There still needed to be evidence and a finding by the adjudicator on the claimant’s standard of English. We have had some evidence in the form of an official transcript of her school record which shows that at the end of her studies she got a mark of 90% in her English examination. That in itself might not necessarily say anything conclusive about the spoken English she would require to follow a course in this country. However, as most reasonably well-informed people know, English is very much used to this day in the Philippines. We note from the official transcript that all the courses taken (including, interestingly, “Social Graces”) are denominated in English, with the exception of two named in Tagalog.
8. Together with the sponsor’s assurance that these courses were taught in English, we regard that as sufficient evidence that this claimant did have at least reasonable English skills, and Mrs Poulter did not suggest that that was a conclusion to which we would not be entitled to come. If the claimant had needed remedial English, we should have regarded Mrs Poulter’s other point about the letter (sent after the decision on 8 May 2003) as reasonably made, in that the course had already been going for a month by that time, and, if it had been needed, serious improvement the claimant’s English might have been difficult at that stage; but, for the reasons we have given, that does not arise.
9. That leaves us with the other point about the availability of similar courses in the Philippines. This is put forward in the grounds of appeal on the basis of the Tribunal decision in Nduhura [2002] UKIAT 01613. It was not suggested by Mrs Poulter that this decision was anything more than one on the facts of the case, which showed simply that the availability of similar courses in a claimant’s country of origin was something that did need to be taken into account. Clearly, as we have said it was a live issue in this case, and one the adjudicator did need to deal with, although it would not have prevented him finding in the claimant’s favour if he had done so.
10. We do not think this is a point we can resolve for ourselves in the same way as we have done with the question of the claimant’s English ability. It had a bearing on the whole question of her intention, or not, to stay here after she had finished the course for which she had applied. We do not think it would be right to ask Mr Shaerf to reconsider this case on the question of the availability of such courses in the Philippines, because in effect he had already decided the question to which that was relevant. The claimant’s case on this point, as put by the sponsor, is quite simply that a British qualification would have greater value world-wide than a Filipino one. This may well be right and is also something that needs to be taken into account.
11. However, we should make clear that where a serious issue is taken in the refusal notice, and particularly if it is pursued by the presenting officer before the adjudicator, it does need to be dealt with. We cannot supply that deficiency in Mr Shaerf’s decision for the reasons we have given, and the result is that there must be a fresh hearing before another adjudicator, which however will be limited to the question of whether this claimant intended to leave this country at the end of her studies here, and need not be concerned with her English abilities. To that extent the Home Office appeal is allowed and the case remitted, not to Mr Shaerf.
John Freeman
(approved for electronic distribution)