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Appeals, Human rights/equalities, Immigration and asylum, Judiciary, Prisons/detention centres, Research, Tribunals

Lowering or raising the language barrier? Reflections on interpretation, translation and the digitalisation of immigration tribunals.

Lowering or raising the language barrier? Reflections on interpretation, translation and the digitalisation of immigration tribunals.

 

By Sarah Craig (University of Glasgow)

15

 

Providing an interpreter addresses individuals’ access to justice rights, and it also promotes accountable decisions, based on appropriately translated information.[i]  But interpreting in justice settings is not straightforward, and digitalisation adds a further dimension. This post reviews the impact which the video link has on the interpreter’s role in immigration tribunals and considers how digitalisation could assist with interpretation and translation.

 

Putting the non-English speaker on an equal footing: the interpreter as active participant in immigration tribunals

Translation and interpretation are not mechanistic processes, as anyone familiar with “Google translate” knows, and the administrative justice context of immigration tribunals adds further complexity. Inghilleri has observed that parties may question the allegiance of interpreters, as in the case of the Roma applicant who suspects that the Polish (non-Roma) interpreter is not on their “side”.[ii] Allegiance is also an issue for decision-makers who may be concerned about collusion or about interpreters coaching applicants.[iii] Inghilleri  describes interpreters as inhabiting a “zone of uncertainty”, in which they perform a potentially powerful role, because of decision-makers’ reliance on them.[iv]  Faced with this reliance, codes of conduct are imposed on registered interpreters,[v]  and by the Home Office.[vi] Good and Gibb comment on the imposition of such requirements in asylum procedures, emphasising the “complex and active” role that interpreters play. The role is complex because codes of conduct provide potentially contradictory advice, sometimes requiring a literal “unpolished” translation, at other times expecting interpreters to alert the tribunal to a missed cultural reference (e.g.  dates in non-Western calendars or kinship terms where kinship is differently structured). This confronts interpreters with dilemmas and requires them to exercise judgment, with the result that rather than performing an invisible and mechanistic role, interpreters are active participants in appeal hearings.[vii] The interpreter’s active participation is an issue which individual decision-makers deal with (or don’t deal with). To add to the challenge, the judge can’t assume that an interpreter at a hearing is registered.[viii]

 

When interpretation/translation goes wrong: responses

When interpreters express negative views about applicants, the tribunal has emphasised that interpreters are not witnesses and that what they say is not evidence which can be taken into account when deciding an appeal.[ix] Challenges to interpretation and translation are discouraged, however: in MM (Sudan), where the applicant had raised concerns about an Arabic interpreter’s lack of knowledge of her Coptic Christian faith, it took major deficiencies in translation,  promptly recorded and objected to,  and clearly overlooked by previous decision-makers, before the Upper  Tribunal was prepared to intervene on the basis that a factual error had led to unfairness.[x] Timing is important and objections based on language issues that are made late face being rejected.[xi] In their Best Practice Guide for immigration practitioners, Henderson et al observe that the best way to challenge interpreting is to raise it with the tribunal immediately and they therefore tell practitioners that applicants should have their own interpreter at an appeal.[xii] Legal aid restrictions however mean  that applicants are unlikely to have their own interpreter at the hearing, and they may be unrepresented, too.

 

The digitalisation agenda, Immigration Tribunals and the video link

The tribunals digitalisation agenda is an important part of the Ministry of Justice’s modernisation programme, one of the aims of which is to address Government concerns about judicialisation of tribunals. However, commentators regard the programme, along with the restrictions on legal aid in England and Wales and the interpreting services contracts described above, as well as the expansion of administrative review( which now replaces most immigration appeals), as mainly driven by the pressure to save money imposed by austerity policies, which have weakened administrative justice.[xiii]

 

Immigration Bail hearings and the video link.

For the past decade, video link technology has provided a tool which allows immigration bail hearings to go ahead without transporting the detainee to the tribunal. It substitutes for physical in-person communication with the applicant, who appears by video-link from the detention centre, while the other participants – the judge, interpreter, court staff and legal and Home Office representatives- are in the tribunal hearing room. Placing the interpreter in the hearing room is efficient and flexible for the tribunal, but having the detainee communicate with the interpreter,  and everyone else, through the video-link  reveals that while virtually present, the applicant makes little or no active contribution to the hearing.[xiv] Bail observation projects have noted this lack of contribution, but they also record applicants being effectively excluded: they cite instances where large chunks of procedure were not translated,[xv] and of an applicant trying to make points after a hearing had ended, apparently unaware that it was over.[xvi] The emphasis in bail hearings on the assessment of risk (e.g. that the detainee will abscond if bail is granted ) provides some explanation for the applicant’s lack of involvement.[xvii] Meanwhile, the lack of independent oversight of immigration detention has met broad criticism, both at home and internationally.[xviii]

 

Out-of-country appeals and the video link

As Joe Tomlinson has identified, out-of-country appeals have advantages for the State -including speedier deportations and fewer detainees- but applicants face cost and difficulty finding representation, recruiting expert witnesses, setting up an appropriate video-linked hearing and generally realising their right to appeal. Faced with these disadvantages, they are less likely to appeal.[xix]  The Supreme Court has found that out-of-country appeals can be fair for deportation of foreign national former offenders, but an in-country appeal should be available where an appeal from abroad is not effective. [xx] Guidance on how to decide if there should be an in-country appeal includes ( among other things) deciding whether live evidence can be given in a satisfactory manner by video-link, bearing in mind the impact that video link/skype communication would have on the role of judges and expert witnesses.[xxi]

From the rule of law perspective, judicial responses to the programme of restrictions/austerity have mitigated aspects of their impact  on access to justice but the  digitalisation programme has so far generated fewer concerns.[xxii] Video-link hearings are the main type of digital procedure used in immigration tribunals, and while the video-link has provoked judicial  concern in circumstances when credibility and demeanour are an issue, there is less concern about it in situations where judges expect little engagement with the applicant (onward appeals discussing errors of law are a case in point). The comparison between the video-link in out-of- country appeals and its use in bail hearings illustrates this.

 

 Thinking about interpreter-mediated communication and effective appeals.

The use of video-link in immigration tribunals highlights issues about communication and access to justice. In bail hearings, it exposes the applicant’s non-participation. The Supreme Court’s consideration of the effectiveness of out-of-country appeal hearings reveals institutional concerns about the impact of video link/skype communication on the role of judges and expert witnesses. In both settings, the interpreter’s communicative role has so far remained largely invisible. But future discussions about video-link hearings could extend to their effectiveness when interpreter-mediated communication is a factor. Currently, out-of-country appeals mostly affect foreign national former offenders, usually long-term UK residents who are unlikely to need interpreters. Considering firstly the extension of out-of-country appeals to all human rights cases,[xxiii] and secondly the recognition that there are circumstances where video/skype communication can be a factor indicating that an appeal from abroad would not be effective, the impact that the video- link would have on interpreter-mediated communication may also be recognised. On this, Justice has recommended that interpreters be co-located with applicants in video-link and video-conference hearings, as an aspect of the principle that appellants should be in no worse position with video-conference hearings.[xxiv]  It follows from this that, if interpreter and applicant were both at the remote location, this could present difficulties for the judge’s control over the interpreter. It implicitly leaves open the option of a face-to-face hearing instead.

 

How digitalisation could assist

Extending Assisted Digital?

For bail applicants, the Court of Appeal concluded that bail processes were too difficult to access for a mentally disabled immigration detainee and therefore discriminatory.[xxv] The problems facing vulnerable immigration detainees have also gained attention.[xxvi] The Assisted Digital programme is intended to address the concern that by putting services online, large swathes of the population are excluded.[xxvii] As such could Assisted Digital consider how to make bail processes more accessible for mentally disabled applicants? Could it address how to use video-link communication to support vulnerable applicants? If so, how would such support interact with interpretation and translation needs? Could an Assisted Digital service even specify the kinds of cases where video-link hearings would not be used and provide for a face-to-face hearing instead?

Digitalisation could be used for the applicant’s benefit as well as for the tribunal’s. For example, Bail for Immigration Detainees(BiD) have recommended that hearing centres should be video-linked together so that sureties/cautioners– whose evidence can trigger release for immigration detainees-  can give evidence in bail hearings by video-link from hearing centres convenient to them, which may not be the one closest to the removal centre where the applicant is being held.[xxviii] Along with many others, BiD has also called for better quality video-links to be provided.

 

Suggestions from a rights-based approach

Santaniello prefers the term “no translation” to mis-translation, pointing out the harm that can result if people’s accounts are inaccurately presented to the court, or if a party doesn’t understand what their case is about. Coming at the question from a US criminal justice setting and drawing support from constitutional due process rights, she argues that audio-recordings should be used to check for errors in court interpreting and translation, and that the traditional tribunals’ approach – of expecting errors to be picked up “live”  – is unrealistic when parties don’t know that errors have occurred.[xxix] While Santaniello’s “process heavy” standpoint cannot be directly read across from the US criminal setting to UK immigration processes, her approach reminds us that an expansive reading of the shared burden of proof, bringing out the communicative nature of decision-making in asylum and humanitarian protection could underpin a rights based approach.[xxx] It could also lend itself to tribunals using digital recordings to check for interpretation errors in appropriate, important cases.    There are plans to devolve the administration of tribunals, including reserved tribunals like immigration to the Scottish Government, and such an approach may chime with their rights-based approach.  But even if it does, cost will remain an issue, just as it is in relation to the UK-wide reform programme. The continuing challenge is to think creatively about how the development of the digital agenda can protect – rather than further weaken- administrative justice.

 

Sarah Craig

Senior Lecturer in Public Law

University of Glasgow.

 

[i] In asylum decision-making, the right to information about your rights in a language you can understand has been recognised as an access to justice issue: Hirsi Jamaa v Italy (appln 27765/09) E CtHR judgment 23 Feb 2012; MSS v Belgium and Greece (2011) 53EHRR 2; NS and ME v UK and Ireland [2012] 2 CMLR 9.

[ii] M. Inghilleri Interpreting Justice, Routledge 2012, p88.

[iii] Justice Immigration and Asylum Appeals a Fresh  Look, (2018).

[iv] M. Inghilleri Macro social theory linguistic ethnography and interpreting research Linguistica Antverpensia Themes in Translation Studies, 2006.

[v] National Register of Public Service Interpreters Code of Professional Conduct http://www.nrpsi.org.uk/for-clients-of-interpreters/code-of-professional-conduct.html (accessed 9.7.19).

[vi] UKVI Central Interpreters Unit Code of Conduct for the Home Office (12/12/08)

[vii]Gibb, R. and Good, A.(2014) ‘Interpretation, Translation and intercultural communication in refugee status determination procedures in the UK and France’ Language and Intercultural Communication, 14(3) pp385-399.

[viii]  The National Audit Office The Ministry of Justice’s Language Services Contract 10.9.2012;  M. Henderson, R. Moffatt, A. Pickup Best Practice Guide to Asylum and Human Rights Appeals (2018) chapter 34  https://www.ein.org.uk/bpg/contents

[ix] Mohamed (role of interpreter) Somalia [2011] UKUT 337(IAC)

[x]MM(Sudan) v SSHD [2014] UKUT 105(AC)

[xi] Time of making submissions was too late to raise understanding as an issue ( in an EEA case) where an interpreter had not been requested IA/0726/2014

[xii] M. Henderson, R. Moffatt, A. Pickup Best Practice Guide to Asylum and Human Rights Appeals (2018) chapter 34  https://www.ein.org.uk/bpg/contents

[xiii] R. Thomas and J Tomlinson ‘A different tale of judicial power: administrative review as a problematic response to the judicialisation of tribunals.’ Public Law PL 2019 537-552.

[xiv] R(Mohibullah)v SSHD [2016] UKUT 00561(IAC)

[xv]Bail for Immigration Detainees The liberty deficit: long-term detention and bail decision-making, BiD, November 2012.

[xvi] S Craig and A Beesley Immigration Bail Observation Project Scotland (unpublished paper 2018).

[xvii] Immigration Act 2016 Schedule 10: see comments in R(Mohibullah)v SSHD [2016] UKUT 00561(IAC).

[xviii] UK Parliament Joint Committee on Human Rights Immigration Detention Inquiry Report February 2019; United Nations Universal Periodic Review United Kingdom of Great Britain and Northern Ireland, May 2017

[xix] Tomlinson Justice in the Digital State Pluto Press 2019 p48.

[xx] Kiarie and Byndloss v SSHD [2017] UKSC 42.

[xxi] AJ v SSHD [2018] UKUT 00115(IAC)

[xxii] R(on the application of Unison) v Lord Chancellor [2017] UKSC 51.

[xxiii] Immigration Act 2016

[xxiv] Justice Immigration and Asylum Appeals a Fresh Look, (2018).

[xxv] VC v SSHD [2018] EWCA Civ 57. Found discrimination (on mental health grounds) under Equalities Acts when SSHD failed to make reasonable adjustments to decision making processes on liberty/detention.

[xxvi] S. Shaw Welfare in Detention of Vulnerable Persons Review: Progress Report 24 July 2018; Immigration Act 2016.

[xxvii] R. Thomas and J. Tomlinson The Digitalisation of Tribunals: What we know and what we need to know Public Law Project Research Paper, April 2018 p27.

[xxviii] Bail for Immigration Detainees The liberty deficit: long-term detention and bail decision-making, BiD, November 2012

[xxix] Lisa Santaniello, If an interpreter mistranslates in a Courtroom and There is No Recording, Does Anyone Care? The case for Protecting LEP Defendants’ Constitutional Rights, 14 NwJ.L. & Soc. Pol’y 91(2018)

[xxx] S.Craig and D. Gramling (2017)“Is there a right to untranslatability? Asylum, evidence and the listening state” Tilburg Law Review 22(1-2), pp. 77-98

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