The role of the interpreter
Mohamed (role of interpreter) Somalia [2011] UKUT 337 (IAC) (21 July 2011)
This case was heard at the Upper Tribunal in North Shields on 5th May 2011.
Facts of the case
The case concerned a Somali appellant who appealed against a decision of the Secretary of State taken on 7 May 2009 to refuse to grant her asylum under paragraph 336 of the Immigration Rules HC 395 and to remove her from the United Kingdom. Her appeal was dismissed and she appealed further to the Upper Tribunal.
The appellant claimed asylum on the basis that she would be at risk on return to Somalia as a member of the minority Bajuni clan. This was disputed by the respondents and by the judge, who dismissed her appeal on the basis that this clan membership was not established. The judge considered the evidence which includes an interview on behalf of the respondent by Sprakab on 22 November 2008. This report assessed the appellant’s knowledge both of Somalia in general and Kismayo and the island of Fumayo. The report makes clear that the appellant spoke Swahili, yet another variety of Swahili not spoken in Somalia. It established that her Swahili had a typical Tanzanian and Kenyan accent. Moreover, the report established that the appellant’s knowledge of Somalia was limited and that other aspects of her statements were unsatisfactory. The judge considered all these aspects and found the appellant was not a credible witness.
The Tribunal examined the Court of Appeal’s judgment regarding the role of the interpreter which was appointed by the court.
The appellant appealed against this decision in order for it to be reconsidered by the Upper Tribunal. The Upper Tribunal raised two principal issues with regards to the grounds which upon reconsideration were sought. These two grounds and principals are as follows:
1) The appellant based her appeal on the basis that the judge erred in law with regards to two issues. Firstly, the role of the interpreter was at issue. It is submitted that the judge should have asked the interpreter at the hearing what language the appellant was speaking. The judge declined this on the basis that it was not the interpreter’s role to do so. This would also undermine his independence and impartiality. The judge stated that the interpreter’s role was to interpret and to notify the Tribunal of any language difficulties if there is an understanding issue. The Upper Tribunal judge notes that there were no difficulties in understanding at the hearing.
Secondly, as the appellant presupposed that the appellant was speaking Kibajuni, they submitted that the judge erred in law by not taking into account a ‘statement of fact’. The Upper Tribunal judge concludes that there is no basis in law for this submission and that this is based on an incorrect foundation. The judge reasons that in general a judge may only act on the evidence before him, which comprises relevant oral and documentary evidence, in determining the outcome of an appeal. The judge concludes that any statements by the interpreter are irrelevant to the determination of the appeal since it is not considered evidence. In addition, the court appointed interpreter may notify the court of any difficulties which may rise during the hearing, however, it is not his role to provide evidence at a hearing. The judge reasons that this would also raise difficult questions and brings with it technical difficulties to the court, as the interpreter’s exchange with the judge would then have to be examined by someone else. Other unsolved questions will also rise, should the interpreter act as a witness. Further, the judge notes that, as a principle, expert evidence can be challenged properly by direct evidence from an expert. The appellant’s inability to find an expert to counter the Sprakab Report cannot undermine this principle. The judge further explained that the approach of the judge was identified by the Asylum and Immigration Tribunal in AA (Language diagnosis; use of interpreters) Somalia [2008] UKAIT 00029. It was concluded in this case that what was being asked of the interpreter was not consistent with his function and expertise as an interpreter and further his role as a court official was limited to interpreting on behalf of the court. Finally, taking these matters into account, The Upper tribunal judge concludes that there is no basis that the judge erred in law in reaching his finding that on the evidence that was before him the appellant had failed to show that she was a Kibajuni speaker. Indeed, based on the evidence the judge’s finding was unavoidable. For these reasons, the Upper Tribunal rejected the first ground upon which the judge’s decision was challenged.
2) The second ground upon which the appellant relied was based upon the case of KS (Minority clans – Bajuni – ability to speak Kibajuni) Somalia CG [2004] UKAIT 00271 and in particular paragraph [43] of the Tribunal’s decision in that case. There, the Tribunal adopted what had been said in the earlier decision of the Immigration Appeal Tribunal in AJH (Minority group – Swahili speakers) Somalia CG [2003] UKIAT 00094. The Tribunal in this case makes clear that a judge should make an assessment having regard at least to the individual’s knowledge of Kibajuni, knowledge of Somalia and knowledge of matters relating to life as a Bajuni in Somalia. The appellant in this case, points out that the judge failed to undertake such assessment and therefore erred in law. The Upper Tribunal judge found two unavoidable problems which weakened the appellant’s case in making good submissions. Firstly, this issue was not the basis on which the appellant appealed before the judge, and therefore, the Upper Tribunal failed to see how the judge could have erred in law if he had failed to approach the evidence on a basis that was not relied upon by the appellant in the first place.
Secondly, the judge notes that the Tribunal judge did assess all the evidence available to him consistently with KS and identified a number of aspects that lead him to believe that the appellant was not a truthful witness. The judge’s assessment of this evidence was not challenged by the representative of the appellant. The Upper Tribunal states that the Tribunal judge was entitled to reach the view he decided to take. For the reasons above, the Upper Tribunal judge concluded that the judge did not err in law and that his decision stands. The appeal to the Upper Tribunal was dismissed.
AD (reporting criteria - unreported cases) Somalia [2011] UKUT 189 (IAC) (23 May 2011)
This Upper Tribunal case was heard recently at Field House. The case concerned the appellant, a Somali national who arrived in the UK on 2nd August 1997. The appellant claimed asylum on arrival and was granted exceptional leave to remain for one year. He then sought to extend his leave to remain. In June 2004, he was served with a notice of intention to make a deportation order as a result of his criminal offences. He was later convicted of burglary and sentenced to 2 ½ years imprisonment. He was also served with a notice of decision to make a deportation order. He appealed against this however; the appeal and decision were subsequently withdrawn.
A fresh deportation order was then made on 6th August 2007. The appellant appealed against this decision again and his appeal was dismissed in January 2008. Permission to appeal against the decision was subsequently granted on the basis that there was an error of law in the initial judge’s determination. The appellant’s appeal was again dismissed. An appeal was lodged to the Court of Appeal where Sullivan LJ ordered that the appeal be allowed to the ‘extent that it is remitted back to the Asylum and Immigration Tribunal for reconsideration limited to the issue of whether the appellant is entitled to human rights protection under Article 3 of the ECHR”.
The appeal was listed for a hearing for the consideration of article 3 and was heard in December 2010. The appellant remained in immigration detention from January 2010.
The appellant belongs to the Marehan clan, a sub clan of the Darod (a majority clan). He had lived in Mogadishu also members of his clan are populated generally around Gedo. Country expert Dr Hoehne had provided a report as to the risks on return for the appellant and how, as a person coming from abroad, he would be perceived to be wealthy and therefore at risk.
The appellants representatives argued that the appellant would not have adequate protection in Mogadishu as a Marehan returnee and that the judges had failed to consider whether his article 3 rights would be breached on return (in accordance with the case of HH (Somalia) [2008] UKAIT 00022).
Conclusions
After substantial consideration of the relevant case law 9including AM (Somalia) and ECHR articles, the Court held as follows:
(1)The decision in AM (Somalia) [2011] UKUT 54 (IAC) decided that the evidence failed to establish the generalised or indiscriminate violence was at such as high level along the route from Mogadishu to Afgoye (which travels across the K4 junction) that an appellant would be a real risk. Although the Tribunal in the unreported case of Ahmed Farah Mohamed reached a different conclusion, it did not fully address the findings in relation to this issue in the earlier country guidance case of AM & AM [2008]
(2) Given the criteria for reporting cases and the process of preparing decisions for reporting, it is likely to be rare that an unreported decision will contain sufficient material within it to offer significant assistance as guidance to decision-makers, practitioners or other judges in other cases
In this appeal, the court was not satisfied that internal relocation would be an option for the appellant. The Court dismissed the case on asylum grounds but allowed the appeal on humanitarian protection grounds.
May 2011