TS v The Secretary of State for the Home Department

An appellate tribunal will ordinarily give weight to the hearing judge’s assessment of interpretation and will be slow to interfere merely because interpretation may have been inadequate. An appeal is unlikely to succeed unless the deficiency may have affected the outcome, particularly where adverse findings rest on written rather than oral evidence.

However, interpretation concerns must be addressed fairly and specifically at the hearing. A judge must assess genuine complaints from all material sources and ensure that an interpreter remains independent and impartial. Subsequent reliable evidence casting grave doubt on an interpreter’s impartiality may show that a fresh hearing is required.

The appellant, an Eritrean national, appealed against the refusal of her protection claim. The First-tier Tribunal dismissed the appeal after making adverse credibility findings.

During the hearing, counsel raised concerns about interpretation by the Tribunal-appointed Amharic interpreter and sought an adjournment. The judge refused it. After the hearing, counsel made a prompt witness statement describing unsolicited comments by the interpreter which suggested hostility to the appellant and views about the safety of Eritrea.

The Upper Tribunal considered whether the refusal to adjourn and the post-hearing evidence rendered the proceedings unfair.

1. The appeal was allowed. The First-tier Tribunal’s decision contained an error of law. It was set aside and the appeal was remitted for a fresh hearing before a different judge and interpreter.

2. The Tribunal followed the approach in Perera v Secretary of State for the Home Department [2004] EWCA Civ 1002. A reviewing tribunal will usually be slow to disturb a judge’s assessment that an interpreter and witness understood one another. Even inadequate interpretation will not ordinarily justify intervention unless it may have affected the result, especially where adverse credibility findings do not depend on oral evidence.

3. A judge should assess interpretation at the outset and address any concern raised during the hearing. The parties’ duty under rule 2(4) assists the fair and prompt resolution of such issues. A challenge to a Tribunal-appointed interpreter must be treated seriously but not made lightly; the judge must decide whether clarification, further enquiry, adjournment, or a fresh hearing is required.

4. The First-tier Tribunal had adopted much that was good practice, but its view that the appellant’s privately instructed interpreter was generally problematic affected its response to the complaints. The judge also failed to address that the appellant herself said her answers were inaccurately interpreted.

5. The post-hearing statement raised grave doubts about the interpreter’s independence and impartiality. It gave substantial force to the contemporaneous complaints and showed that justice required an entirely fresh hearing. The Tribunal therefore did not determine the remaining challenges to the credibility findings.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on an error of law, set aside the First-tier Tribunal’s decision, and remitted the matter for a de novo hearing before a different judge and interpreter.
• First-tier Tribunal: Dismissed the appellant’s protection appeal after rejecting her credibility.