Dirshe, R (on the application of) v Secretary of State for the Home Department

Asylum decisions require the highest standards of procedural fairness. An asylum interview may be critical to the assessment of credibility. Where the official written record may contain errors of interpretation or transcription, the applicant must have an adequate practical means of challenging its reliability.

If an applicant cannot have a representative or independent interpreter present, an opportunity to comment afterwards provides insufficient protection. In those circumstances, procedural fairness requires the applicant to be permitted to record the interview. Administrative inconvenience and the possible need for case-management rules do not justify a general prohibition on recording.

The appellant, a Somali national seeking asylum, asked to tape record his interview with an immigration officer. The Secretary of State refused under a general policy prohibiting such recordings. Harrison J refused permission to apply for judicial review, relying on Mapah v Secretary of State for the Home Department [2003] EWHC 306 (Admin).

Since Mapah, public funding for a representative or independent interpreter to attend an asylum interview had generally been withdrawn. Sedley LJ gave permission to appeal and directed that the judicial review application proceed in the Court of Appeal. The central issue was whether, following that funding change, the interview procedure continued to satisfy the standard of fairness appropriate to asylum decisions.

1. Appeal and application allowed; declaration granted. Asylum decisions are of such importance that only the highest standards of fairness suffice. The court applied Secretary of State for the Home Department v Thirukumar [1989] Imm AR 402. An asylum interview is a critical part of the decision-making process and may determine an applicant's credibility. Because the interviewing officer creates the official record on the Secretary of State's behalf, the procedure must give the applicant an adequate opportunity to challenge its accuracy and reliability.

2. The court accepted the difficulties identified in Mapah v Secretary of State for the Home Department [2003] EWHC 306 (Admin). Errors of interpretation occur, the original questions and answers in another language are not recorded, and a written record cannot invariably be verbatim. When public funding enabled a representative or independent interpreter to attend, their contemporaneous observations supplied a real and practical safeguard. The court approved Pitchford J's conclusion that the procedure operating at that time was fair.

   The subsequent funding change made the present position materially different. For most publicly funded applicants, the formal entitlement to bring a representative or interpreter had lost practical value. Later comments on the written record were insufficient because the applicant lacked corroboration and might not understand the record without subsequent assistance.

3. Where no representative or independent interpreter attends, refusing permission to record the interview therefore causes real procedural unfairness. Recording is the only sensible means of correcting the imbalance created when the Secretary of State may rely on an official record which the applicant cannot effectively refute.

   Recording may create administrative and case-management difficulties, but those difficulties do not justify the prohibition. Suitable protocols may require duplicate recordings, regulate recording quality and confine transcription or use on appeal to what is strictly necessary. The court declared it unlawful to refuse recording by an asylum or humanitarian-protection applicant who is unaccompanied by a legal representative or interpreter.

1. Court of Appeal (Civil Division): Allowed the appeal and the judicial review application. It declared unlawful the refusal to permit an unaccompanied asylum or humanitarian-protection applicant to tape record the interview.
2. Court of Appeal (permission stage): Sedley LJ granted permission to appeal on 12 November 2004 and directed that the judicial review application proceed in the Court of Appeal.
3. Queen's Bench Division: Harrison J refused permission to apply for judicial review on 20 July 2004, holding that there was no material difference from the procedure considered in Mapah v Secretary of State for the Home Department [2003] EWHC 306 (Admin).