Immigration law

Incompetent interpreterR v Special Adjudicator, ex parte Gashi (2001) QBD Administrative Court (His Honour Judge Wilkie) 17 August 2001 This was a claim for judicial review of the decision of the chief adjudicator on 29 November 2000, whereby he refused to entertain the claimant's application for a review under rule 16 of the Immigration and Asylum Appeals (Procedure) Rules 2000 on the basis that the matter complained of bore no relation to an administrative or procedural error within the terms of rule 16, but involved matters of substance as to the competence of the interpreter and the effect that that had on the decision, and was therefore wholly inappropriate for determination under the rule.Mr Gashi had arrived in the UK on 24 September 2000 and claimed asylum.

His claim was refused and Mr Gashi appealed to the special adjudicator.

In the course of Mr Gashi's oral evidence, difficulties of interpretation arose because of the interpreter's unfamiliarity with certain English words.

The special adjudicator dealt with this by having the problematic question re-phrased so that Mr Gashi was able to express what he had wanted to say.

Mr Gashi's representative made no application for the hearing to be abandoned.

After the oral hearing had finished, but before a decision was made, the secretary of state's representative indicated to the special adjudicator, in the absence of the appellant, that he was not happy with the interpreter's ability to translate.

The special adjudicator found against Mr Gashi on the basis of lack of credibility.The application to the chief adjudicator to review that determination was made on the basis that the interpreter was not competent enough to be relied on, and that the special adjudicator had erred in proceeding in light of the doubts raised both during the course of the oral evidence and at the close of the case by the respondent.

On the application for judicial review, counsel for the claimant argued that the special adjudicator should, of her own motion, have adjourned the case or should have arranged for a re-hearing with regard to the respondent's expression of concern.

It was common ground between the parties that a procedural error might arise in connection with the provision of an interpreter, for example, where no interpreter attended because of a failure to arrange for one, or where an interpreter was provided in a language which was not the appellant's language.

Furthermore, if a special adjudicator took a decision either to proceed with a case or to adjourn by reason of some problem with the provision of an interpreter, that should be regarded as a procedural matter as it concerned the procedure by which the evidence of a party, not well versed in the English language, might be considered by the tribunal.

In this case it was held that the chief adjudicator had mistaken the extent of his jurisdiction in two respects: firstly a question of the competence of an interpreter was manifestly a procedural matter as it concerned the procedures by which a claimant's evidence and case might be communicated to the tribunal; and secondly, a question of whether an interpreter's competence had a material effect on the special adjudicator's decision fell squarely within the chief adjudicator's jurisdiction.

That had to be decided by the chief adjudicator.

If there were a causal connection between an administrative or procedural error and the decision made by the special adjudicator, the question of whether the lack of competence had an effect on the special adjudicator's decision was precisely the question for the chief adjudicator to decide.

The court held that the chief adjudicator, in declining jurisdiction, had erred and Mr Gashi was entitled to a quashing order.

In addition it held that Parliament had placed the exercise of determining whether there had been an administrative or procedural error with the chief adjudicator, and it was he who had the considerable experience in this particular area of the law.

It was wrong for this court to purport to exercise a jurisdiction placed on the chief adjudicator.CorrectionIt was incorrectly stated in [2001] Gazette, 8 November, 32 that Secretary of State v Klodian Kacaj was decided in the Court of Appeal.

It was in fact an Immigration Appeal Tribunal starred decision.

By Jane Coker, Coker Vis Partnership, London