Mapah v Secretary of State for the Home Department [2003] EWHC 306 (Admin)

Case No CO/1357/2002[2003] EWHC 306 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday 25 th February 2003
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE PITCHFORD
Between
FRANCIS EMMANUEL MAPAHClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Edward Fitzgerald QC & Mr Shahram Taghavi(instructed by Anthony Louca) for ClaimantMr Gerard Clarke (instructed by The Treasury Solicitor) for Defendant
JudgmentAs Approved by the CourtCrown Copyright ©
[1]The Claimant is a French speaking national of the Cameroon who has made application to the Secretary of State for the Home Department for asylum. On 17 October 2000 he was issued with a Statement of Evidence Form by the Immigration and Nationality Directorate in Croydon. The form was returned completed, enclosed together with documentary evidence, with a letter dated 24 October 2000 from the Claimant’s solicitors.[2]On 5 March 2002 the Claimant was required by the Defendant to attend for interview in Liverpool at 10.00am on 20 March 2002. On 12 March Mr Pak Wai Hung of the Claimant's present solicitors, Anthony Louca, wrote for permission to make a tape recording of the interview. He would provide the equipment and sought only permission to use it. The Defendant was assured that the recording would neither disrupt the interview nor be audible. On the same day a letter was faxed offering the Defendant the alternative of providing the equipment.[3]On 19 March 2002 a senior caseworker at the Integrated Casework Directorate in Liverpool faxed a letter in reply in the following terms. “Regarding your request to take recording equipment into Mr Mapah’s asylum interview on 20 March 2002, I can confirm that this will not be allowed under current Home Office policy. The use of such equipment is currently being trialed and may be allowed at some time in the future, however a full written record will be made of your client’s interview and both he and yourselves will be provided with a copy. Your representative will also be allowed into the interview to make your own [written] record. It is in your client’s best interest to attend his asylum interview which will allow him to further his claims. If Mr Mapah does not attend, his claim will be determined using the information on file.”(my addition)[4]On the same day the Claimant's solicitors obtained an order in the High Court prohibiting the conduct of the interview pending resolution of an application for judicial review of the Defendant's decision.[5]For reasons which I need not rehearse in detail but which concern the disclosure of documents and continuing consideration of policy by the Defendant, the interview remains outstanding pending this judgment.[6]By an amendment made on 12 February 2003 the Claimant no longer seeks review of the Secretary of State’s policy not himself to record asylum or human rights interviews, but he does seek a review of the Secretary of State’s policy not to permit legal representatives for applicants in general to tape record interviews, and of his decision to refuse permission to the Claimant in particular to make a tape recording of his interview.[7]The Claimant applies with permission granted by Mr George Bartlett QC on 25 March 2002.[8]It is common ground between the parties that procedural fairness, in compliance with the rules of natural justice, should attend the Secretary of State's inquiry into applications for asylum under the Convention Relating to the Status of Refugees 1951 and Protocol 1967 and assertions by an applicant of his human rights under the European Convention on Human Rights. The arguments addressed to me have concentrated on the issue whether the Secretary of State's policy and practice meets the current minimum standards of fairness.[9]An asylum seeker may be interviewed on arrival in the UK or at a later stage. Depending upon the point at which his application is made he may be invited, as was this Claimant, to complete a Statement of Evidence Form. Whether or not such a form is completed he will invariably be called for interview.[10]There are no statutory or regulatory provisions governing the manner in which such interviews should be conducted. There is nothing in the asylum context in the nature of code C issued pursuant to Article 3, Police and Criminal Evidence Act 1984 (Codes of Practice) (No.3) Order 1995. The Secretary of State through the Immigration and Nationality Directorate issues his policy on the conduct of such interviews. The current protocol was introduced formally on 1 January 2003 but had been in use since 1 November 2002. Its predecessor was Chapter 16, section 3 of the Asylum Directorate Instructions issued in July 1998.[11]Within the agreed bundle of documents, disclosed during the course of these proceedings, is an IND internal Feasibility Study on the Tape Recording of Asylum Interviews dated July 1998. In it appears a useful description of the nature and requirements of asylum interviews. Most of its features have carried forward to the Protocol. The purpose of an asylum interview is to establish the basis of the applicant’s claim for asylum. Immigration officers performing the interviews for the Secretary of State are trained for the purpose. The applicant may be accompanied by a representative, legal or otherwise, and an interpreter. If the applicant is to make his responses in a language other than English an interpreter approved by the Secretary of State translates for the officer. On occasions the officer himself will speak to the applicant in his own language.[12]With the assistance of the interpreter the officer’s questions will be translated from English to the applicant’s language and the applicant’s replies translated into English. A record is made of the interview in English. The reply (under the 1998 Guidelines) was to be recorded verbatim although the question could be summarised.[13]Formerly it was the Secretary of State's practice that the interview record should be read over, again with the assistance of the interpreter, if necessary, and any corrections made or clarification added before the applicant and his interviewer signed each page of the document.[14]At the conclusion of the interview the applicant was handed a copy of the notes with advice what to do if he wished to make further representations or to provide further information before the decision was considered.[15]In the event that the application was refused and the decision appealed a copy of the interview notes would be included in the bundle of evidence submitted to the Independent Authority for consideration by the Adjudicator.[16]In 1998 the average length of an interview was 114 minutes. Approximately 90% of interviews were conducted with an interpreter. Interviewers completed an appropriate training course and were monitored from time to time by line managers sitting in on a sample of interviews. A complaints procedure existed. In the year 2000 some 38,120 passengers were refused leave to enter. 273 passengers made complaints, 39 of them during or following an asylum interview. It is not possible to ascertain how many of those 39 complaints were substantiated but of the 273 total just under one half were found to be partially or wholly substantiated. It is not possible to identify the precise nature of the complaint in any of these 39 cases.[17]It is a requirement of the Protocol of 1 January 2003 that interviews should be conducted objectively and impartially. It is “essentially a fact finding exercise, an opportunity for the applicant to elaborate on the background to his or her application, introduce additional information and for the interviewing officer to test the information provided, if required.” The interview should commence with identification of the participants and of any specific needs of the applicant.[18]The officer is required to inform the applicant of the confidentiality of the interview. He must “keep an accurate, verbatim and legible written record, including comments made by the representative, the times of breaks and any difficulties in the course of the interview.” It remains a requirement that a copy of the interview record will be provided to the applicant but the interviewing officer currently possesses a discretion to read back the interview record “in exceptional cases, for example, where the applicant appears to be illiterate or traumatised.”[19]The applicant should be given a proper opportunity to make explanations and give details of the application, and the opportunity to address any inconsistencies which become apparent. The officer is required to conduct the interview in a manner which is conducive to these aims.[20]Where no statement has been submitted to the Secretary of State the interviewer should advise the applicant and his representative of a period within which further material should be submitted on the applicant’s behalf if it is to be considered before a decision is made.[21]Interpreters engaged by IND are bound by a code of conduct. They are required to have a command of English and the language used at interview, and to be able to interpret accurately and fluently between both languages. They are required to act in an impartial manner, to respect confidentiality, to translate into direct speech, to disclose any difficulties encountered with translation and not to enter into discussion, nor to intervene unless to seek clarification, or draw attention to a possible misunderstanding or missed cultural inference. Interpreters are not permitted to offer advice or to express any opinion on the merits of the application during the course of the interview.[22]Any interpreter accompanying the applicant is required to provide comments only at the end of the interview except when necessary to draw the interviewing officer’s attention to any serious discrepancy in translation, a possible misunderstanding or missed cultural inference.[23]It is the Claimant’s case that the standard of fairness required was illustrated by Lord Justice Bingham, as he then was, in Secretary of State for Home Department v Thirukumar [1989] Imm AR 402 when in giving judgment at page 414 he said:
“It is ..... plain that asylum decisions are of such moment that only the highest standards of fairness will suffice. I am in the end persuaded, (1) that if an opportunity to make representations is to be meaningful the mind of the applicant must be directed to the consideration which will as matters stand defeat his application; and (2) that if any opportunity to supplement previous answers is to be meaningful the applicant must be reminded of or (preferably) shown the answers which he gave before: this is most obviously so where .... a year had elapsed since the previous interview, but given the difficulties which can occur when questions are asked through an interpreter and the strain to which the applicant may well be subject at the time of the first interview I think it necessary even where the interval has been much shorter. I am not intending to make any general statement about natural justice or procedural impropriety but simply to indicate what, in the peculiar circumstances of cases such as these, fairness seems to me to require.” “Where an individual has an arguable claim that he has been ill-treated in breach of Article 3, the notion of an effective remedy entails in addition to a thorough and effective investigation of the kind required by Article 13..... effective access to the investigatory procedure ...”
[24]I was referred to the observations of Brooke J upon the practical effect of these principles in R v Secretary of State for the Home Department, ex parte Akdogan [1995] Imm AR 176, at pages 180 and 181 (see paragraph 54 below).[25]Mr Taghavi, junior Counsel for the Claimant, in the course of introducing me to the disclosed documents, submitted that the interview process is an essential and critical part of the Secretary of State's information gathering process. It is the applicant’s opportunity not only to expand upon information already provided but to permit his consistency and reliability to be tested by an interviewer. Should the applicant decline to attend the interview then the application will be decided upon such evidence as the Secretary of State has acquired without it. The absence of interview would be a positive disadvantage to the applicant.[26]Mr Fitzgerald submits that it is a fundamental requirement of procedural fairness that the Claimant should be sure that the information communicated to the interviewing officer is accurately recorded by him, in order that the Secretary of State's judgment upon the application is exercised upon the information actually disclosed by the applicant. Secondly, in the event of refusal and appeal to an Adjudicator, any accusation of inconsistency made on the respondent’s behalf at the appeal hearing should be capable of resolution by reference to best evidence, namely a contemporaneous tape recording.[27]It is the second of these submissions which dominated the arguments. Not infrequently, in judging the credibility of an appellant’s evidence, the Adjudicator will rely at the Respondent’s invitation, upon inconsistencies between what was said in interview, in a Statement of Evidence, and in evidence at the appeal. The Adjudicator is liable to regard the record made by the interviewing officer as authoritative since the Adjudicator knows that a verbatim record is required. If the appellant happened to sign the record it is likely to be regarded as conclusive even if in a language foreign to him and under the pressure the interview is bound to create. Any errors in translation cannot be identified, nor can improper pressure or haste exercised by the interviewer or interpreter. Without the means of contemporaneous tape recording the appellant would be deprived of effective access to the process by which his appeal will be judged.[28]The Claimant points to shortcomings in the present arrangements which are liable to undermine the standard of fairness required: 1). Verbatim records of interview are in practice almost impossible to achieve; 2). The interview record is no longer read back to the applicant at termination of interview; and 3). The quality of interpreters available is variable and frequently unsatisfactory.[29]Mr Fitzgerald seeks to demonstrate each of these shortcomings by reference to the evidence. I shall deal with each in turn.

Verbatim Notes

[30]In any case involving an interpreter, there will be no note of the actual replies made by the applicant, nor of the translated question. Inaccuracies in translation cannot, therefore, be challenged with the certainty a tape recording would provide. A report of the Immigration Law Practitioners’ Association, published in 1999, entitled Breaking Down the Barriers, draws attention to the anecdotal experience of practitioners that interviewers “sometimes omit to record information discussed during an interview”. It is believed that such omissions can lead to adverse inference on appeal to the Adjudicator. The written record will not record nuances of emphasis or meaning which may make a difference to their accurate interpretation. These are experiences identified in the Royal Commission on Criminal Procedure whose recommendations were influential in changing police procedure under the Police and Criminal Evidence Act 1984. Despite the requirement that interpreters should translate into direct speech, experience suggests that discussions take place between the applicant and the interpreter which result in a summary answer. Read Over[31]Paragraph 6.4 Chapter 16 of the Official Guidance issued by the Asylum Directorate in 1998 required the interviewer to read over his written record to the applicant before inviting the interviewer to approve the transcript and sign it. Paragraph 4 of annex A drew attention to the belief that read back was an essential part of the interview. Since 1st November 2002 the interviewing officer has enjoyed a discretion to read back the interview record in exceptional cases. Justification for the change is the assertion that the completion of a Statement of Evidence Form in advance of interview reduces the scope for omissions and misunderstandings at interview; in cases where no Statement of Evidence has been completed the applicant has a period of 5 days to make representations about the record of interview with which he has been provided. The Claimant criticises the change on the grounds that before the introduction of Statement of Evidence Forms the practice was to prepare a self-completed questionnaire serving a similar purpose as the SEF.[32]The change of policy was the subject of some pertinent observations by the Immigration Appeal Tribunal in the unreported case of Gagda Bilbil v Secretary of State for the Home Department, 11 September 2001 (01TH1603), the Tribunal observed, “The Home Office documentation reveals that the appellant’s representatives requested a read over of the interview but it was denied..... “as it is not Home Office policy to do so”. The documentation contains the applicant’s declaration which is different in terms to the one formerly to be found and it simply indicates that “I have been informed the purpose of this interview was to obtain further details on the information which I provided in the self-completion SEF. I have understood the questions put to me and was given the opportunity at the end of the interview to make further comments”. It seemed to the Tribunal that this change of policy was a regrettable step and one which failed implicitly to protect the interests of the interviewee and the interviewer. For the interviewee’s part this gives rise to the opportunity of confusion or misunderstanding having taken place between the interpreter and the interviewee and/or between the record maker and the interpreter as to whether or not questions and answers have been correctly recorded. For the interviewer’s part the signing of the read over obviates or seriously undermines claims that the interview was not being conducted properly and that the answers did not fairly represent the applicant’s claim. In the present case it seems to us that whilst there are plainly differences in the appellant’s account of his claim submitted in his SEF that there certainly does appear to be a point where questions got at cross purposes ....... The policy not to read back also is against the general trend that has been maintained over many years, particularly since the Police and Criminal Evidence Act of 1984 with the Codes of Practice which sought to ensure that wherever practicable a person being interviewed should have an opportunity to read the record or alternatively have it read back to him and to sign it as correct or to indicate the respects in which it is considered to be inaccurate.”[33]The result of the change in practice has been that a significant number of advisers, including the Refugee Legal Centre and the Immigration Advisory Service, advise all their clients not to sign the interview record.[34]It is the opinion of Tauhid Pasha, Legal, Policy and Information Director at the Joint Council for the Welfare of Immigrants, that in the bulk of appeals to an Adjudicator the applicant’s credibility is of critical significance. Where the point is taken on behalf of the respondent an Adjudicator is bound to pay attention to alleged inconsistencies in the applicant’s account, not merely between the applicant’s description of his own experiences and the objective situation evidence. Not infrequently Adjudicators reject assertions of inaccuracies in the interview record, the applicant’s signature on the record being a natural disincentive to a contrary finding.

Interpreters

[35]ILPA’s report drew attention to the common complaint that the linguistic skills of Home Office interpreters were inadequate. They were a common cause of claims by the appellant before the Adjudicator that the interview record was inaccurate.[36]The Central Interpreters Unit at Bedford Point, Croydon keeps a list of those who may be called upon to carry out services for SSHD. They are expected to have command of both languages, to possess the ability to interpret accurately and fluently between both languages and to maintain and develop their spoken command of both languages. The stated aim is to ensure that communication across language and culture is carried out consistently, competently and impartially. The Unit defines the interpreter’s ethical and professional responsibilities within and outside the interview arena in some detail.[37]The Claimant relies upon the witness statement of Claudine Studd, a French citizen and an interpreter who in January 2002 was placed upon the list. She had no formal qualifications in English and took part in a role-play for a period of about 10 minutes translating French into English and English into French. She passed the test with a double A pass mark. She was then asked to attend a two-day course of lectures and role-play. Although the witness’s recollection was that she had not been asked to sign a Code of Conduct she clearly did, on 13 March 2001.[38]Charlotte Dunce, Higher Executive Officer at the Central Interpreter’s Unit confirms the existence of a half-day induction session including mock interviews, and a two-day language and assessment programme. The programme is compulsory for all interpreters joining the Central Interpreter’s Unit database from 1 April 2001 unless they have a Diploma in Public Services Interpreting (Law) or full status membership of the National Register for Public Service Interpreters, or have passed the Immigration Appellate Authority or police force assessment within the previous 3 years. In the period from January 2002 until 18 June 2002, 518 interpreters were assessed with a fail rate of 20%. It is anticipated that 1400 interpreters will be assessed and trained by September 2003.[39]The Central Interpreter’s Unit monitors the performance of interpreters. Justified complaint or assessment results in removal from the panel.[40]Thus, it is submitted, that while it may be the Secretary of State's intention that the interviewing officer’s transcript of interview should comprise a reliable record of the information given by the applicant, experience demonstrates that errors occur. The applicant’s ability to correct inaccuracies either in recording or translation is, in practice, severely curtailed by the limitations of the system. In order to produce procedural fairness it is submitted that an applicant should at his election be entitled to record his own interview. There is no lawful reason, argues Mr Fitzgerald, why the Secretary of State should prohibit that course.[41]There being no domestic legislative requirement, my attention was drawn to the UNHCR handbook, 1992 edition, which, at paragraph 192 lists the basic requirements for asylum procedures:
“(i) The competent official .... to whom the applicant addresses himself at the border or in the territory of a contracting state should have clear instructions dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority. (ii) The applicant should receive the necessary guidance as to the procedure to be followed. (iii) There should be a clearly identified authority – wherever possible a single central authority – with responsibility of examining requests for refugee status and taking a decision in the first instance. (iv) The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, which they should be duly informed, to contact a representative of UNHCR. (v) If the applicant is recognised as a refugee he should be informed accordingly and issued with documentation certifying his refugee status. (vi) .... (viii) ...”
At paragraph 196 the handbook observes:
“....while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.” “....while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.”
[42]At paragraphs 197-202 the handbook recommends a system closely mirrored by that adopted in the UK. It is anticipated that the applicant will be given the opportunity to complete a standard questionnaire followed by one or more interviews during which the applicant is invited to put forward his case and explain fully his opinions and feelings. No international assistance is given upon the issue of tape recording. There is no international standard. Neither European countries nor the United States generally record asylum interviews. Australia does.[43]The IND Feasibility Study on the Tape Recording of Asylum Interviews recognised in a summary of findings at paragraph 2 that recording allows an interview to flow more naturally and effectively, may reduce time spent in interview, provides a safeguard for the applicant, interviewer and interpreter and may reduce delays or disputes at later stages as to the accuracy of the record. On the other hand, a system of recording by the Secretary of State would require a transcript in every case. That would have the effect of increasing the length of the process without ensuring a corresponding improvement. Start up and running costs would be substantial, in 1998 estimated to be £1.2 million and £500,000 per annum. Those costs would be significantly higher today. Tape recording could only provide a reliable record of the interview if the quality of the recording was guaranteed. Poor quality tapes might lead to disputes. Experience showed that in order to produce a satisfactory tape recording not only the equipment but also the environment in which the recording took place had to be favourable. In the event of a dispute about the content of the recording the Immigration Appellate Authority would require playback facilities to be available in each hearing room. Accent and dialect would produce problems for satisfactory recording. Should more than one individual be speaking at once accurate discernment was difficult. Background noise could affect the quality of the tape. Faulty recordings would lead to lost information.[44]As a result of the feasibility study IND carried out a pilot scheme in Terminals 1 and 2 at Heathrow Airport. The response from immigration staff involved in the pilot was positive. It was noticeable, however, that of the 52 interviews originally booked at Terminal 1 for applicants (who were told their interviews would be taped) 17% refused and 11% did not appear for interview. At Terminal 2, of 50 interviews, 25% refused to participate and 18% did not appear for interview. The view of the officers conducting the pilot was that the ‘no show rate’ was far higher than normally expected. There was a suspicion that many applicants for reasons of their own do not favour a tape-recorded interview.[45]The feasibility study and pilot were of course conducted with a view to the introduction of tape recording as a matter of course by the Secretary of State. It was not directed to the question whether the applicant himself should be permitted to make a tape recording of his own interview. Nevertheless, the findings do bear upon the issue whether an “amateur” tape recording should be permitted and to the repercussions of any acceptance in principle that tape recording should or may take place.[46]It is plain to me that the applicant has no realistic alternative but to submit to an interview at the request of the Secretary of State. If he fails to attend, his application for asylum will almost certainly be decided upon incomplete information without the advantage of explanation, particulars and emphasis afforded by face-to-face interview. As Mr Fitzgerald rightly pointed out an unmeritorious claim might lead the applicant to shyness of interview but that was the responsibility of the applicant himself. The question is whether once engaged the procedure is fair to the applicant.[47]At a preliminary hearing before Newman J on 3 October 2002 Mr Keir Starmer QC, who was then representing the Claimant, conceded the reality that were an order to be made permitting the Claimant to tape record his interview, there would be no ground for the Secretary of State to object to similar requests made by all applicants. The thrust of the Claimant’s case, Mr Starmer accepted, was that the system to which the Claimant was being subjected exposed him to a risk that his application might be compromised if an inadequate record was made or the interpretation was inferior. He indicated that his case would be more difficult to sustain if the Secretary of State's former procedure of reading back was still in place. Mr Fitzgerald was not of course present during this exchange and cautioned me against interpreting it literally. It remained a feature of the system in place that the best evidence of the interview was unavailable because recording was prohibited. Even if a read back occurred, it would occur either in English or in the French translation by the interpreter whose accuracy was not itself guaranteed. Mr Fitzgerald invited me to decide the issue of fairness as a matter of principle. If the Claimant's representative could not be prevented from attempting a verbatim record of his own; if the applicant at his own expense could employ a shorthand writer, then there was no reason in principle why the applicant should be prohibited from recording his interview by another medium for his own purposes.[48]It seems to me that the concession made by Mr Starmer from which Mr Fitzgerald did not resile, that permission to one was permission to all is significant to a resolution of the issues which arise. Mr Clarke for the Secretary of State makes two central submissions: 1) While the arrangements for the information gathering process may contain anecdotal imperfections, there are sufficient safeguards to protect the system from the accusation of procedural unfairness and breach of natural justice; 2) Since the Secretary of State can have no control over the conditions of recording, security and transcription by the applicant, the inevitable consequence of permission to all would be a requirement for the Secretary of State to undertake systematic tape recording himself. For reasons which cannot be characterised as irrational he has chosen, for the time being, not to do so.[49]It is accepted that asylum cases frequently raise important issues of human rights and that the asylum system should be operated fairly. However, it cannot be a requirement of procedural fairness that a tape recording should be permitted. The criticisms which are made of current procedure, including examples of notes not in fact taken verbatim, the cessation of the system of read over of notes, and interpreters failing to reach the required standard, do not lead to the inevitable conclusion that in order to protect the interests of the applicant he should be permitted to record his own interview. Shortcomings in the existing system are capable of improvement. They do not require the abandonment of the procedure itself.[50]This particular applicant will be accompanied by his representative and, if he chooses, his own interpreter. At the conclusion of the interview he will be handed a copy of the interviewer’s record. If he wishes to challenge the accuracy of that record he will be equipped to do so either by an immediate challenge with the assistance of his interpreter or by a subsequent check of the record in consequence of which representations can be made. The only consequence of the absence of a tape recording is that the applicant’s assertion of what he did say or intended to mean cannot be checked against a full and contemporaneous record. That does not imply that the procedure is unfair. The Claimant will have the opportunity to draw the attention of the officer making the determination or, on appeal, the Adjudicator, to any disagreement. It is the duty of the officer and the Adjudicator to apply principles of fairness and justice to the decision whether or not to place reliance upon any inconsistency which emerges.[51]Should a tape recording be permitted it would not provide a guarantee that inaccuracy and disagreement will be removed. Experience shows that arguments, particularly in the context of translated interviews, will or may occur even where the interview was recorded. It is the aim of the Secretary of State to provide an expeditious and simple procedure by which to gather the necessary information. To permit recording of interviews would almost certainly lead to satellite arguments which deflect from the real issues at stake, namely whether the applicant has a well-founded fear of persecution, and whether there are grounds for believing that a return to the country of origin would constitute a breach of the applicant’s Convention rights. Officers and Adjudicators are quite capable of reaching appropriate judgments upon the significance of the alleged inconsistencies, including where the inconsistency itself is disputed. It would be a wholly exceptional case in which an officer or Adjudicator reached a finding that the applicant’s claim lacked credibility based solely upon an alleged inconsistency challenged by the applicant on the ground that the record was incomplete or the translation faulty.[52]There is, submitted Mr Clarke, an important difference between the function of an interview in the context of a criminal investigation and the fact-finding exercise performed by Immigration Officers. It was not the purpose of an asylum interview to put to the interviewee a case gathered by the police or anyone else. The interviewer was not part of a process which might or might not lead to proof of an offence to the criminal standard. The officer was merely receiving information from an applicant of the factual basis for his application for asylum. It is at a later stage that the information provided will be submitted to the Casework Directorate and compared with the objective evidence available to the Secretary of State. While contemporaneous recording has the advantages to which the feasibility study drew attention in 1998, the problems of perceived partiality and the risk of “verballing” identified by the Royal Commission on Criminal Procedure do not generally arise.[53]The existence of an appellate procedure provides a safeguard against administrative assumptions based upon alleged inconsistencies. As Collins J delivering the judgment of the IAT in MNM v Secretary of State for the Home Department [2000] INLR 576 observed:
“...If there is any unfairness the Tribunal or the Court of Appeal will correct it. Thus, any complaints that the Special Adjudicator conducted an unfair hearing fall to be considered by us and we apply the same tests as would be applicable if Article 6 (1) applied.”
[54]Mr Clarke suggests that the Administrative Court provides a further safeguard. Brooke J in Murat Akdogan (supra) carried out just such an exercise of critical examination of the conduct of asylum interviews. At page 180 he said:
“There is also the problem of questions being asked through an interpreter. There is in addition the problem of questions being asked of somebody of an entirely different culture and entirely different background from the person asking the questions. In my judgment, these circumstances cry out for a very careful examination to ensure that the applicant’s mind was invited to address each of the particular points which was concerning the Secretary of State so that he had an opportunity, not merely by way of responding to a very general question…I remind myself that although he was given the opportunity to consult an advisory service, he was, in fact, unrepresented at the second interview. In these circumstances, I look anxiously at the second interview in the light of what Lord Bridge and Lord Templeman have said [“most anxious scrutiny”, R v SSHD ex parte Bugdaycay (1987) 1 AC 154] about the standards which need to be observed on these occasions.” (my addition) Brooke J went on to examine the applicant’s criticisms of his interview and continued at page 181: “In my judgment this is not a case of an examiner following the principles set out in the United Nations Handbook or the principles which are set out in the Court of Appeal judgment in Thirukumar. The applicant was not given a chance to do justice to himself, in my judgment.”
At page 182, he concluded:
“When I see in his decision that the Secretary of State is basing his judgment on credibility, holding it very strongly against the applicant that he did not come out with information in the first two interviews, in my judgment, this decision is flawed by procedural impropriety. For that reason it should be quashed.”
[55]Mr Clarke relies upon the implications of tape recording by the Secretary of State considered in the feasibility study of 1998.[56]As to cost, Tarron Kinsella, Higher Executive Officer in the Immigration and Nationality Directorate, informs me that there are 74 interviewing rooms in Croydon and Liverpool which are in regular use for asylum and human rights interviews. A further 23 rooms are available. 25 interview rooms are in regular use at Oakington. Only 6 interview rooms in Croydon and Liverpool are equipped for tape recording. There are considerable additional cost implications for the upgrading of those rooms to render them suitable for tape recording facilities.[57]Mr Kinsella was informed by the Briefing and Complaints section of IND that between April 2001 and March 2002 approximately 50,000 interviews took place (statistically based upon figures for the last 4 weeks of the period). There were during that year 90 formal complaints against interviewing officers and interpreters in the Croydon and Liverpool centres. Accordingly, Mr Clarke submits that the systemic virus of unfairness alleged by the Claimant is not established on the evidence.[58]Formerly consolidated with Mr Mapah’s claim was that of Bahram Amir Ebrahimi. His claim was withdrawn following his successful application for asylum based upon an interview which was not in fact tape recorded. Employed by Mr Ebrahimi’s solicitors, Lloyd & Associates, was Shahryar Mazaheri, a solicitor who interviewed 3 Home Office interpreters with a view to discovering whether there were recurrent problems with interpretation, not revealed in interview records. Those 3 witnesses were not prepared to be identified. Accordingly, the witness statement is that of Shahryar Mazeheri who expresses an opinion that difficulties do arise from interviews translated by interpreters with no formal qualifications, inadequate understanding of the English language and unfamiliarity with the technical or legal terms associated with asylum and human rights claims. There are occasions of unprofessional or oppressive conduct by Immigration Officers or interpreters when applicants are not legally represented. These problems are aggravated by failure to read back the record of interview. I am invited by Mr Clarke to discount this evidence because it is largely based upon conversations with interpreters who are not prepared to identify themselves. The Defendant has no means of checking the accuracy of the information with which the deponent was provided. Claudine Studd’s recollection that she had never been asked to sign a code of conduct was demonstrably wrong. I regard the evidence as some additional support for the assertion that problems such as those examined by Brooke J in Akdogan can and do occur. The evidence does not, however, demonstrate that failures are endemic.

Conclusions

[59]It is not my task to form a judgment whether it is desirable that the Secretary of State for the Home Department should introduce a system of tape recording interviews. I am required only to decide whether the policy of prohibiting applicants in general and this Claimant in particular from recording their own interviews is lawful or unlawful.[60]I agree with Mr Fitzgerald’s submission that I am concerned primarily, not with rationality, but with procedural fairness and therefore legality.[61]I accept the submission that the Secretary of State enjoys the prerogative to control the interview process to the best advantage of the system of immigration control and asylum in general.[62]The Claimant has, in my judgment, failed to demonstrate that the absence of tape recording, either by the Secretary of State or by the applicant, creates systemic unfairness in the Secretary of State's procedure. The Claimant has demonstrated that: 1) Problems of interpretation can and do occur; 2) Questions, translated into the applicant’s language and replies given in that language, are not recorded as such but in the English translation; 3) Records cannot always, despite exhortation, be literally verbatim; 4) The reversal of the requirement for read back removed a measure of protection against unremarked mistakes in recording by the interviewer; 5) An applicant does not necessarily have the benefit of representation or his own interpreter. Such an applicant will be at a disadvantage in identifying errors of translation; 6) Immigration officials and Tribunals of Appeal frequently judge credibility against a criterion of consistency; 7) Tape recording of an interview by the applicant or by the Secretary of State would do much to alleviate these problems if and when they occur.[63]In the formation of any administrative procedure, including that which regulates the unique features of asylum and human rights applications, there will always be scope for refinement and improvement. However, the procedure in place does not, in my judgment, offend objective considerations of fairness. The Secretary of State has in place, through the Central Interpreters’ Unit, a scheme for identifying and training competent interpreters required to submit to a Code of Conduct and monitoring of their performance. The applicant, following his interview, is handed the record. He has the opportunity either then or later with assistance to challenge it. Interviewing officers are bound by their training and Protocol to act fairly towards the applicant and to conduct interviews in a manner conducive to the aims of the Protocol. The officer considering the application and the Adjudicator presiding over an appeal are bound to consider the applicant’s reasons for challenging the record. A failure properly to consider a significant dispute would result in correction by an Adjudicator or the Immigration Appeal Tribunal or the Administrative Court. Both interpreters and interviewers may be the subject of formal complaint. The conduct of the interviewer is subject to the same control by a tribunal or court as that of the interpreter. It is my view that sufficient safeguards exist to protect this procedure from the accusation of unfairness.[64]I accept the further submission made by Mr Clarke that consent to one request is tantamount to consent to all. The Secretary of State would enjoy no control over security, continuity and quality of tape recordings. It would be unreasonable to expect the Secretary of State to subject the procedure for information gathering to a satellite industry, arising from amateur recording, of challenges producing delay, expense and inconvenience. There is, it seems to me, a difference between the practical effects of tape recording on the one hand and note taking on the other. In the event of a disputed recording the Secretary of State may be required to employ his own interpreter and transcriber to examine what were alleged to be mistakes in translation, perhaps even an audio expert to enhance indifferent quality, and a voice expert to ensure correct identification of the speakers. The majority of such challenges are likely to be insubstantial and of marginal impact in the context of an asylum application as a whole and, in my view, would serve to undermine the objective of a fair and speedy service.[65]As to the application made by this Claimant, it has not been established that an interview conducted with the assistance of a French speaking interpreter and recorded, as nearly as possible, in a verbatim note by the interviewer, either will or is likely to result in disadvantage to the Claimant. Should the Claimant be dissatisfied following the interview he may make representations which are bound to be considered by the decision maker and on appeal, if any.[66]In the circumstances, the claim must be dismissed. However, I record my concurrence with the views of the IAT in Gagda Bilbil (supra), not because I consider the omission of read over to be fatal to the fairness of the procedure, but because it has, despite the time constraints, such obvious advantages both to the interviewer and to the applicant, particularly the unrepresented applicant. I respectfully agree that its restoration could only enhance confidence in the impartiality of the procedure as a whole. - - - - - - - - - - - - - MR JUSTICE PITCHFORD: Mr Taghavi and Mr Pievsky, you have had a look at the judgment which I have handed down in draft. Are there any other corrections or alterations to make? MR TAGHAVI: No, my Lord. MR PIEVSKY: No, my Lord. MR JUSTICE PITCHFORD: Thank you. Then I give judgment in the terms handed down, and the claim is dismissed. Are there any further applications? MR PIEVSKY: My Lord, I have an application for costs. MR TAGHAVI: My Lord, without intending disrespect to your Lordship's judgment, I have an application for leave to appeal in this matter. Your Lordship is familiar with the issues. In my submission, permission would be appropriate in this case simply because it is a test case, and raises issues of immense public importance, which have an impact upon most, if not all, refugee and human rights claims. The issues raised in this case do necessitate an authorative ruling by the Court of Appeal. For those simple reasons, I would ask for permission to appeal. MR JUSTICE PITCHFORD: I am going to refuse permission, Mr Taghavi. I think you should apply to the Court of Appeal. MR TAGHAVI: My Lord, one other brief matter. Could I have a detailed assessment of the claimant's costs? MR JUSTICE PITCHFORD: Do we have a certificate? MR TAGHAVI: It is in the bundle. MR JUSTICE PITCHFORD: Yes, of course. Thank you for your help.

Cited in 3 later judgments