Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04249/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 9 March 2017
On 16 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

Y F
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Aziz of AA Group – Legal Services
For the Respondent: Mr H Aboni, Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Background
2. The appellant is a citizen of Tunisia who was born on 1 January 1984. He arrived in the United Kingdom on 9 March 2012 with a 6-month business visa. That visa expired on 20 July 2012 and the appellant overstayed.
3. On 10 December 2015, the appellant made an asylum claim. He claimed to fear the terrorist group Ansar al-Sharia whom, he claimed, had attempted to recruit him and now considered that he had informed on them to the authorities in Tunisia.
4. On 11 April 2016, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under Arts 2, 3 and 8 of the ECHR.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal. In a decision promulgated on 21 November 2016, Judge Coaster dismissed the appellant’s appeal on all grounds. In particular, she made an adverse credibility finding and rejected the appellant’s account such that he would be at risk from Ansar al-Sharia if he returned to Tunisia.
The Appeal to the Upper Tribunal
6. The appellant sought permission to appeal to the Upper Tribunal on the basis that the proceedings had been unfair as the judge had required the interpreter to shorten his translation of questions put to the appellant despite the interpreter saying that the appellant was not fully able to understand what was being asked and, thereby, deprived the appellant of a full opportunity to put his case.
7. On 20 December 2016, the First-tier Tribunal (Judge Scott-Baker) granted the appellant permission to appeal on that ground.
8. On 17 January 2017, the Secretary of State filed a rule 24 response seeking to uphold the judge’s decision on the basis that the appellant had not been treated unfairly and had been given a sufficient opportunity to answer questions.
Discussion
9. In her determination, Judge Coaster dealt with the difficulty she had identified at the hearing with the Tribunal’s interpreter in translating questions put by the Home Office in cross-examination. At para 34 the judge explained as follows:
“34. At the hearing there were some difficulties with the interpreter translating the Home Office cross examination questions direct to the Appellant. The interpreter’s interpretation of simple straight forward questions appeared to be taking lengthy explanation in Arabic. The interpreter, when challenged by me as to his duty to directly translate the question, explained that if he did not try to explain, or interpret the question to the Appellant, the Appellant would simply ask for the question to be repeated because the Appellant did not understand a direct translation. I was satisfied however after inquiry that the Appellant and the interpreter did understand each other adequately and I am satisfied that the Appellant was given sufficient opportunity to respond as he wished to cross examination questions. The interpreter subsequently did shorten his translation of questions put to the Appellant and the occasion on which he wanted the question repeated were dealt with.”
10. Mr Aziz, on behalf of the appellant submitted that what had transpired at the hearing was unfair. He referred me to two decisions concerning the role of an interpreter in Tribunal hearings. In AA (Language diagnosis; use of interpreters) Somalia [2008] UKAIT 00029, the AIT was concerned with the issue of whether an interpreter could give evidence of a witness’s language where that was relevant to his claim. In the course of the Tribunal’s reasons, the Tribunal stated at [9]:
“It is in our view in the highest degree undesirable for the interpreter as a Court official to be asked to contribute in any way to the determination of a contested issue. In his task of comprehension and communication, the interpreter needs to have and maintain the confidence of all those with whom he deals, including the witness [whose evidence] is being interpreted, the representatives of both parties and the judge.….The court interpreter is a vital part of the immigration appellate process. It is very important that the interpreter’s position should not be compromised in any way.”
11. Mr Aziz placed reliance upon this passage in AA and the approval of AA by the Upper Tribunal in Mohamed (role of interpreter) Somalia [2011] UKUT 337 (IAC). He submitted that the judge had, in effect, compromised the interpreter’s position and confidence in the interpreter had been affected. He submitted that this was unfair and, once unfairness was identified, it would be of the “greatest rarity” that such an error would not automatically be material. For that latter proposition, he relied upon the Upper Tribunal’s decision in Elayi (Fair hearing – appearance) [2016] UKUT 00508 (IAC) at [9].
12. The applicable principles are not in doubt in this case. The only issue is whether the judge acted improperly in directing the interpreter to directly translate the questions which were being put and, further, whether any unfairness resulted.
13. The role of an interpreter in appeals before the First-tier Tribunal is undoubtedly an important one. The interpreter is appointed, not to act on behalf of the parties, but to independently facilitate by translation of questions and answers the giving of evidence by a witness. That is clearly recognised in both AA and Mohamed and, in particular, in the passage in the former to which I have referred. The role of the interpreter is, however, to translate questions and answers and not to seek to elaborate upon or explain either the questions being put or the answers given by the witness to the questions. There may be occasions when a literal translation is not possible or some explanation of a term used in English when sought to be translated into another language or vice versa is required. It will be a matter of degree, commensurate with the aim of “comprehension and communication” as to the extent to which an interpreter may be required to depart from a literal translation. If, however, it is clear to an interpreter that this is necessary, the proper procedure must be to raise the matter with the judge so that the judge, and indeed others in the Tribunal hearing, are aware of precisely why, and what, is being said that may depart from a literal translation or gloss what is otherwise being said by the questioner or answerer in their own language.
14. It is plain from para 34 of the judge’s determination that the interpreter in this case did not comply with that approach. The judge was, in my judgment, entitled (indeed required) to ask the interpreter to translate directly the questions and answers given. If the interpreter became aware that the appellant was, as a result, unable to understand what was being asked of him, the interpreter should have raised this with the judge. Indeed, it is a matter which, if the appellant is made aware of the process, he or she can, if a question is not understood, ask for it to be repeated with or without any necessary clarification.
15. In para 34, the judge identified that, having required the interpreter to directly translate questions, she was satisfied that the appellant did in fact understand what was being asked and gave answers in response. Where that was not so, the appellant asked for the question to be repeated. That is borne out by the judge’s own Record of Proceedings. At the point at which the issue was raised with the interpreter, the question that was said to have resulted in an overly long translation was: “how long did the meeting last?” Following the literal translation of that, the appellant clearly understood the question when he gave the answer: “it didn’t take a long time.” Thereafter, the judge records that when a question was not understood the appellant said he did not understand the question and it was asked again and an answer given. So, for example the appellant said that he did not understand the question “the people from al-Sharia that you met, did they tell you how to contact them if you wanted to join the organisation?” The judge then rephrased the question, faced with the appellant’s statement that he did not understand it, by saying “did they give you a contact name, or an address or a telephone number?” In response to that, the appellant gave the answer “they did not give me anything but if I agree to join them then they will come and contact me”.
16. It is plain, in my judgment, that the judge properly required the interpreter to carry out his function of translating the questions put to the appellant. It is also plain from the Record of Proceedings that the appellant then understood what was being asked and provided answers. Where he did not understand, the question was put again in, perhaps, a slightly different form which he was able to answer.
17. When, in the course of his submissions, I asked Mr Aziz what aspects of the appellant’s evidence were in inaccurate, he was unable to point to any part of the evidence as having been affected by any perceived difficulties with the interpreter. He was unable to identify any part of the evidence as being inaccurate. He indicated that he had requested that the Tribunal allow him to approach the interpreter concerning what happened. Mr Aziz was, however, unable to identify any application that had been made and, ultimately, relied simply upon the statement in the ground that the interpreter “may be asked to give a witness statement”. In truth, there was no such application. In any event, as I pointed out to Mr Aziz, the appellant must know whether the evidence he gave was accurate or not. He could have been asked to indicate what he disagreed with. Again, however, Mr Aziz stated that he was not in a position to say that any of the evidence given was inaccurate.
18. In these circumstances, I am satisfied that the judge properly and fairly conducted the hearing and no unfairness has been established.
19. Mr Aziz made no reference to the remaining parts of the grounds, sketchy in detail and vague in focus, seeking to take issue with the judge’s adverse credibility finding. He was clearly right to do so. They are without merit.
Decision
20. For the above reasons, the First-tier Tribunal’s decision to dismiss the appellant’s appeal on all grounds did not involve the making of an error of law. Its decision stands.
21. Accordingly, the appellant’s appeal to the Upper Tribunal is dismissed.
22. Mr Aziz sought to make an application for costs but, in the light of my dismissal of the appellant’s appeal to the Upper Tribunal, there is no proper basis for an award of costs as the appellant has lost both before the First-tier Tribunal and the Upper Tribunal.

Signed

A Grubb
Judge of the Upper Tribunal

Date