Perera v Secretary of State for the Home Department

A fair hearing requires a competent interpreter where a litigant cannot understand the language used in the proceedings. A responsible complaint about interpretation must be addressed promptly, but the adjudicator decides whether proceedings should continue or restart. An appellate challenge requires a showing of material unfairness or a real possibility that inadequate interpretation affected the outcome. A misunderstanding which is clarified, and which does not affect findings based on independent written evidence, will not invalidate the decision. A different result in a separate appeal does not itself establish legal error where the evidential records differ.

The appellant appealed against the Immigration Appeal Tribunal’s dismissal of his challenge to an adjudicator’s decision. The adjudicator had dismissed his asylum and human rights appeal against the Secretary of State’s decision confirming his status as an illegal entrant, refusing asylum and directing removal to Sri Lanka. The principal issue was whether the quality of Sinhalese interpretation at the hearing had denied the appellant a fair opportunity to present his case. A further issue concerned the adjudicator’s treatment of a different decision allowing the asylum appeal of the appellant’s brother.

The appeal was dismissed. The court found no material unfairness, error of law or basis for impugning the adjudicator’s conclusions. The order was no order as to costs, save for a public funding taxation order of the appellant’s costs.

1. Interpretation and the adjudicator’s responsibility. Lord Justice Judge stated that physical presence at a hearing is insufficient where a litigant cannot speak or comprehend the language used. The court’s responsibility to do justice requires an interpreter of adequate competence. When a responsible legal representative raises a concern about interpretation, the adjudicator should address it immediately. The decision whether to continue with the interpreter or discharge the interpreter and restart the proceedings rests with the adjudicator, not the representatives.
2. Assessment of the complaint. Lord Justice Pill relied on the adjudicator’s contemporaneous note and determination, which recorded that the interpreter and witnesses understood one another. The adjudicator had also consulted the manager of the Interpreters’ Section and invited the solicitor to identify any continuing problem. The alleged misunderstanding about which party was in power between 1993 and 2001 was subsequently clarified in further questioning and re-examination.
3. Materiality and prejudice. Even if there had been a misunderstanding on that point, it did not affect the other findings or create a real possibility that the outcome would have differed. The adverse credibility findings also rested on inconsistencies in written statements, interview material and other evidence, rather than solely on oral evidence given through the interpreter. The appellant had received a fair hearing.
4. The brother’s appeal. The different outcome in the brother’s separate proceedings did not establish an error of law. The cases had not been conjoined, the evidence differed materially, and the other adjudicator had not had the appellant’s interview record. The adjudicator was entitled to decide the appeal on the evidence before her. Lord Justice Neuberger agreed with the reasons of Lord Justice Pill and Lord Justice Judge.

1. Court of Appeal (Civil Division) — In [2004] EWCA Civ 1002, the appeal was dismissed.
2. Immigration Appeal Tribunal — The appeal from the adjudicator’s decision was dismissed; the decision was notified on 27 August 2003.
3. Adjudicator — The appellant’s asylum and human rights appeal was dismissed in a determination promulgated on 31 December 2002.
4. Secretary of State for the Home Department — On 9 July 2002, the Secretary of State confirmed the appellant’s status as an illegal entrant, refused asylum and gave directions for removal to Sri Lanka.