by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2018 Updated Edition ~
Assessing vulnerability and capacity to give instructions
11.1 Unless your client is going to give evidence in English, it is vital that you use an experienced professional interpreter when taking instructions for the purposes of preparing the witness statement for the court. You should also consider whether your client is vulnerable, or may lack capacity to give instructions (see the discussion at 11.22-11.32 below).
11.2 You should establish at an early stage in what language your client is most fluent. This will not necessarily be the language which your client used for Home Office interviews or which has appeared adequate for taking instructions. Check that both language and dialect are right. Ask her. The fact that the language spoken in different areas has the same label is not necessarily any indication that speakers from those areas will be able to understand each other. In relation to some dialects, it may be effectively impossible for someone to properly understand and convey meaning unless they have lived in the area and amongst the people who speak it. Try to ensure that the interpreter is familiar with cultural differences, as well as the language (see further - chapter 34).
11.3 It is not satisfactory to use someone your client has brought along from her community. That person may well be more knowledgeable about the country of origin, and able to explain apparently surprising aspects of your client's story more convincingly than can your client. His expert knowledge may be invaluable to the preparation of your client's claim. But that is part of the problem in a representative using him to interpret. At worst, encouraged by the fact that the interpreter has all the answers, the representative will be tempted to direct questions to the interpreter, e.g. 'How was she able to escape?' and the interpreter will start providing an answer without even translating the question. The representative will merely accept the answer - presumably because he assumes that his client will give the same answer. You should always address questions directly to your client, and insist that these are translated directly to your client, and the answer translated directly back.
Rep: 'The Home Office is saying that the authorities would not have arrested you repeatedly just because you attend one demonstration. Were you surprised that they kept on arresting you just because you had attended one demonstration?'
Interpreter: [Translates into client's language]
Client: It did happen. I was arrested three times and tortured on every occasion.
Interpreter: [in English] You see... [and continues to provide an explanation of why this might have happened]
11.5 Your client has not answered the question. The interpreter has realised this, and is giving you the answer you are looking for. However, you assume that he is merely translating the client's answer. An even more dangerous position is where your client understands the question but gives an answer that the interpreter thinks is misconceived or will not please you, so the interpreter alters or elaborates upon the answer when he translates it to you. The interpreter's answer will go in the statement. You may not realise that your client does not properly understand - or even perhaps agree with - what her statement says until she departs from her statement in oral evidence. Whereupon the HOPO is able to claim she is lying.
11.6 The interpreter may be able to add to your understanding of conditions in her country of origin. That information may well help you in presenting the case. However, the interpreter must be reminded to differentiate clearly between comment or additional information on the one hand and on the other, the direct translation that is his primary task. Your client is going to be cross-examined on her statement. The interpreter will not be able to answer these questions for your client.
11.7 Always try to ensure that your client is comfortable with a particular interpreter. Ask her whether she has any other concerns about which interpreter is used (though bear in mind that she may not feel comfortable explaining her concerns if she has to do so through the interpreter who is the subject of these concerns). Use common sense and your knowledge of the country of origin to identify in advance whether using a person of a particular ethnic origin, gender etc. may cause problems.
11.8 Be sensitive to the intrinsic difficulties in interpreting discussed in chapter 34. Where an interpreting problem or misunderstanding arises, you should encourage the interpreter to alert you to it. If these problems are discussed, it should increase the accuracy of the witness statement. Equally importantly, having been alerted to the difficulty, you will be better able to identify it if it reoccurs during oral evidence.
11.9 It is also important that the interpreter's English reflects the manner in which your client speaks as accurately as possible. For example, if the way your client speaks is simplistic, the interpreter should not interpret into sophisticated English. You want the statement to be as faithful as possible to the way your client speaks. You also need to be able to judge as far as possible from her language whether she is worried or uncertain about particular topics, and to be alert to any psychological difficulties your client may have (see chapter 26), including any lack of capacity (see paras 11.22-11.32 below).
11.10 Provided the interpreter is competent, it is important if at all possible to use the same interpreter for taking the statement, pre-hearing conferences, and monitoring the hearing (see chapter 34).
11.11 Particularly where your client has suffered traumatic events, the environment in which she is interviewed is also important. The most inappropriate environment is a noisy office with repeated interruptions, and a caseworker and/or interpreter who is clearly pressed for time.
11.12 She should not normally be interviewed in the presence of family members and friends. She may feel inhibited from giving full details of her treatment or activities. Nor should she be asked in front of others whether she wants to be interviewed alone. She may feel inhibited from requesting this. It should be done, at least initially, as a matter of course.
11.13 The appeal may be won or lost on the strength of your client's statement. No amount of good advocacy at the hearing may remedy a careless mistake on the part of the caseworker while taking the statement. Appeals have trundled up through the courts for years while advocates argue at ever greater expense over the weight and construction to be placed upon alleged inconsistencies which arose solely because the caseworker taking the initial statement was cutting corners. It is therefore cost effective, as well as less dangerous for the appellant, to get it right first time.
11.14 It is imperative that interviews are not rushed. What is adequate will depend entirely upon the circumstances of the case. Asking 'How long does it take to complete an asylum seeker's statement?' is like 'How long is a piece of string?' Factors affecting the time required will include:
• the extent and nature of the allegations in the Home Office refusal letter;
• the extent to which your client's case turns upon the acceptance of her history;
• the extent and level of her activities;
• the extent of past ill-treatment;
• whether she is traumatised or ill or otherwise has difficulty in recollection or in understanding or focussing upon the material issues;
• how difficult is the interpreting;
• her level of education and understanding;
• the extent of past inconsistencies which need to be addressed and whether previously undisclosed information now has to be presented.
11.15 If the events are very straightforward, or the case is based largely upon factors other than the appellant's history, the statement may be finalised in one session. But if success rests on the acceptance of her history, that history is complex, and there are serious credibility issues, the statement may take many hours over different sessions and go through several drafts. There is nothing wrong with that. Cutting corners is a false economy. The important thing is not to keep to some arbitrary guideline, but to ensure that the time spent is appropriate to the nature of the case.
11.16 It is very easy when taking a statement through an interpreter to get the wrong end of the stick even in the simplest of cases, particularly if there is pressure on the caseworker to complete the statement. It can be very difficult to put aside preconceptions, whether from other cases or ordinary life which may distort the caseworker's understanding of what the client is trying to convey - particularly if such preconceptions seem to offer an easy way of conveying a sensible account to paper.
11.17 The open-focussed-closed method of questioning (sometimes known as the 'funnel technique') is usually the safest means of eliciting information. Begin with a completely open question ('What happened?'), then follow up with more focussed questions ('Can you explain why you did that?') which guide your client towards areas you need to explore but still require a substantial response. End with closed questions ('Could you see anyone else?') to check the facts you need to put in the statement and clarify the chronology. Then return to an open question to ensure that nothing has been missed, e.g. 'Did anything else happen?' Move on to the next point with another open question, 'What happened next?'
11.18 The circumstances in which this approach will not work are where your client is too unconfident or inarticulate to respond effectively to an open question. You will then have no option but to probe and prompt by offering her choices. If she relaxes during the interview, you may be able to return to a more open questioning technique.
11.20 Never take the first answer you get without testing it. Approach the point from different angles. As a simple example, after eliciting the date of the last detention, ask how long she remained in the country after her release, and check that the two answers correspond. Ask what she was doing between the last detention and her escape, and be alert to any indication from the answer that the dates she had given are inaccurate. If you have been given dates for other events occurring around the same time, check the order in which they occurred rather than assuming this from the dates you are initially given. If you have a clear date for a particular event (e.g. marriage or the birth of a child), you can perform a similar check even though the event used for reference purposes is immaterial to the appeal.
11.21 Clients from different cultures (particularly if they use a different calendar) will often have much more difficulty in determining western dates than in putting material events in order and placing them in the chronology by reference to other events. If your interpreter is converting dates from a different calendar, mistakes are particularly likely. You should also record the date in your client's calendar so that she is not accused of inconsistency as a result of someone else's mistake.
11.22 You should be alert when taking instructions to your client's vulnerability. In certain cases, you may suspect that your client would be not only unable to give coherent evidence but may lack capacity to understand or participate in her appeal hearing at all. As the Senior President noted in AM (Afghanistan) v SSHD  EWCA Civ 1123,
…The SRA practice note of 2 July 2015 entitled 'Meeting the needs of vulnerable clients' sets out how solicitors should identify and communicate with vulnerable clients. It also sets out the professional duty on a solicitor to satisfy him/herself that the client either does or does not have capacity….
11.23 The Bar Standards Board's Vulnerability Good Practice guidance for immigration clients, published in April 2018, also states in respect of barristers that "If you entertain a reasonable doubt that a client lacks capacity to give proper instructions, it is your professional duty to satisfy yourself that the client either does or does not have capacity as quickly as possible" (Factsheet 6: Issues with Mental Capacity). The BSB Factsheet contain helpful advice for all those who are advising people who may lack mental capacity (not just barristers), including the following:
…You should be continually assessing your client's capacity throughout the process, due to the fluctuating and dynamic nature of vulnerability and the stress associated with accessing and receiving legal services. If you notice your client taking decisions or behaving in a manner which is inconsistent with previous decisions or behaviour, you may want to explore this further. For example, perhaps your client is easily influenced by others and a family member is exerting undue pressure on them, which has led to a series of seemingly inconsistent decisions.
… When considering whether a person lacks capacity under the MCA 2005, ask yourself the following:
● Does the person understand the information which is relevant to their decision?
● Can the person retain this information?
● Can the person use or weigh up the information as part of the process of making the decision?
● Can the person properly communicate their decision?
If your client appears to struggle to understand what is being said, remember events and information or make and communicate decisions, you should consider the need for a mental capacity assessment. This assessment should be conducted by a professional. Do not assume your client lacks capacity, but ensure they are assessed prior to acting on instructions.
11.24 In these circumstances you will need to obtain a medical report as to your client's capacity to understand the appeal proceedings. Ideally, this report should be obtained from a psychiatrist but in some cases, the client's GP, a mental health nurse, or an independent social worker may be able to assist. With your client's consent, you may also find it helpful to consult any friends, relatives or carers for their views. It is important to remember that capacity is "decision-specific" and so the fact that a person may be able to make decisions about some aspects of their life, doesn't mean that they have capacity to take decisions about the conduct of an asylum appeal.
11.25 It was held by the Administrative Court that the Tribunal does have power to appoint a litigation friend, where procedural fairness requires it: R (C) v FTT and others  EWHC 707 (Admin). The Court of Appeal's unanimous judgment in AM (Afghanistan) v SSHD  EWCA Civ 1123 endorsed the Administrative Court's ruling in C and gave further consideration to the question of litigation friends in the Tribunal. Sir Ernest Ryder, Senior President of Tribunals, noted in his lead judgment that a direction could be made to permit the involvement of a litigation friend but that '[c]are should be taken to ensure they are appropriately used and only for the parts of a hearing where they are necessary' (). The Senior President, and concluded (at ) that:
…there is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached. It must be remembered that this step will not be necessary in many cases because a child who is an asylum seeker in the UK will have a public authority who may exercise responsibility for him or her and who can give instructions and assistance in the provision of legal representation of the child.
11.26 Despite the suggestion in the last sentence that a local authority will normally be able to act as a litigation friend for a child who lacks capacity, you will always need to consider whether a local authority social worker can fairly and properly represent the child's (or incapacitated adult) best interests. That is the duty of a litigation friend, and a local authority employee may not always be an appropriate litigation friend, for example because there may be a conflict of interest between the child's best interests and those of the authority.
11.27 At the point of writing there is still no guidance or procedure rules in place in assist the Tribunal as to when and how to appoint a litigation friend. In AM (Afghanistan), the Court of Appeal indicated its concerns about the absence of any provision in Tribunal rules for the provision of a litigation friend like that in Part 21 of the Civil Procedure Rules 1998. In a brief concurring judgment, Underhill LJ, said (at ):
…a litigation friend has wide authority to dispose of a party's legal rights, either directly by bringing and/or compromising proceedings, or indirectly by the way in which he or she conducts those proceedings. Those powers ought to be clearly defined and regulated, as they are by rule 21 in cases that come under the Civil Procedure Rules . It is very unsatisfactory that they should be exercised simply on the basis of the general case-management powers in rule 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (or its equivalent in other chambers). The Senior President says … that he will ask that this decision be considered by the Tribunals Procedure Committee. I hope that the Committee will consider this aspect in particular, and as a matter of urgency.
In the absence of provisions in the Tribunal procedure rules, you should ask the Tribunal to follow the framework set out in Part 21 of the Civil Procedure Rules and in Part 17 of the Court of Protection Rules 2007, which require the appointment of a litigation friend for a person who lacks capacity to make a decision or decisions in relation to the proceedings before the court in question.
11.28 An application to the Tribunal to appoint a litigation friend to act for your client in the appeal should be made at an early stage, as soon as practicable after you are satisfied that your client lacks capacity to conduct and understand her appeal proceedings (see para 6.23).
11.29 Where an asylum-seeker is unaccompanied, in the absence of family members or appropriate friends it may be difficult to find a person to act as a litigation friend. If your client is a child you may approach the local authority, although as noted above, particularly if there is a dispute over age, there may be a conflict of interest. In these and other circumstances where there is no appropriate litigation friend known to the Appellant, it will be necessary to approach independent charities and advocacy services, such as the Refugee Council and Mind. Once you have found a person willing to act as a litigation friend, it will be necessary to obtain a certificate of their suitability to act as a litigation friend (following the procedure laid down in Part 21 of the Civil Procedure Rules) and apply to the Tribunal for an order that he be appointed as your client's litigation friend.
11.30 Even if they have capacity, many asylum seekers will be vulnerable. Refer to the Joint Presidential Guidance Note No. 2 of 2010 on Child, Vulnerable Adult and Sensitive Appellants and the Senior President's Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses for guidance on the approach to calling evidence from vulnerable appellants and witnesses (and see para 6.23-6.23A and 6.27 regarding the need to seek appropriate directions in such cases). The Bar Standards Board has produced a Vulnerability Good Practice Guide for immigration cases (April 2018) which aims at identifying and assessing vulnerable clients and their needs. It includes a number of fact sheets covering topics (in addition to questions of mental capacity) such as "Identifying and assessing vulnerable clients and their needs" and "Issues to consider in relation to court proceedings".
11.31 The Council of the Inns of Court has also published a series of toolkits on "Responding to communication needs in the justice system" which contain helpful guidance on a range of issues including "Identifying vulnerability in witnesses and parties and making adjustments" which includes guidance on a number of key points identified as:
• Vulnerability should be identified at the earliest possible stage and information sharing is key to achieving this.
• Certain behaviour/characteristics/circumstances are 'risk factors' and these can indicate potential vulnerability.
• Once vulnerability is suspected, action should be taken to obtain expert advice as necessary. This can be from, for example, liaison and diversion services (where they exist) for suspects, an appropriate medical expert, or an intermediary.
• Research has shown that vulnerability is often missed or not properly acted upon.
• Advocates should not assume that vulnerability in a witness or party has always been identified before the matter comes to court.
• Advocates should ensure that the interests of their vulnerable clients are taken into account and their needs are met.
• 'Special measures' and other reasonable adjustments must be considered.
• A series of guides on questioning people with learning disabilities, mental disorder, autistic spectrum disorders, or "hidden disabilities" such as dyslexia, as well as children