Comment on Anthony Good’s ‘Interpretation, Translation and Confusion in Refugee Status Determination Procedures’

Anthony Good's paper on interpretation and translation in asylum cases is an excellent contribution to the complex subject matter of cultural diversity in the legal arena. In particular, by presenting an example from the field of refugee law, it discusses a problem that often arises in many other areas of law: What impact does the use of interpreters have on legal processes?

In trying to answer this question, Good provides a detailed analysis of the challenges arising from the use of interpreteers and what they mean for the assessment of an applicant's credibility concerning his/her account of persecution. Establishing one's credibility in asylum proceedings is particularly important, given that applicants are often without supporting evidence and their testimonies may be affected by several factors, including cultural norms and misunderstandings, not to mention the effects of traumatic experiences [1, 2].

Good distinguishes three main different problems potentially arising from the use of interpreters in proceedings: (1) barriers to communication; (2) untranslatability; (3) and complex matters of translation.

First, Good's discussion of barriers to communication focuses on the expectation that asylum applicants speak in short sentences in order to facilitate their translation. This 'fragmentation' causes interruptions in the flow of the testimony, and can make the applicant to forget details he/she wanted to say. Good explains that other barriers are created by the requirement that interpreters should use the same kind of colloquial or formal language used by the applicant. Interpreters, however, may be tempted to adopt 'face-saving strategies' [3,4,5] such as 'polishing' the language to make it sound more polite or clear to avoid being considered inefficient at their role. Similarly, barriers are created when interpreters offer explanations to something that the applicant has said that may have been unclear. Thus, despite institutional norms requiring interpreters to be invisible and their role limited to allow exchange of information, in reality they actively participate in verbal interactions.

Second, concerning untranslatability, Good explains that some terms cannot be translated precisely or word-for-word, such as dates in non-Western calendars (i.e., the Tamil or Iranian calendars), kin terms coming from different kinship systems, or terms concerning parts of the body. It can, therefore, happen that different interpreters may propose diverse yet equally valid English equivalents, which can lead to inconsistences and the perception that the asylum applicant is unclear or potentially dishonest, especially if multiple interpreters have been used during the processes. Good refers to linguists such as Basnett [6: 97], who differentiate between linguistic untranslatability, which occurs when there is no direct equivalent in terms of vocabulary or syntax between two languages, and Catford [7], who addresses cultural untranslatability, whereby words may have similar counterparts in both languages but carry distinct cultural meanings. Confusion may also occur where names are transliterated—transliteration involves representing the sounds of the original script using Latin characters, allowing for easier reading and pronunciation by those unfamiliar with the original script. Transliteration may not always be accurate, and as a consequence it may cast doubt on an applicant's account. Good points out that all these problems concerning factual aspects of word meaning and cultural usage could be resolved if the court had the required information.

Third, some matters may be also be more complex, such as when there are different sentence structures and diverse verb conjugations between the language to be translated and the language of the translation. Jargon, forms of linguistic humour, and cross-cultural incomprehension due to different meanings given to words (i.e., the words 'rape' and 'sexual assault' in Tamil) are further sources of confusion. All these problems are even more accentuated when multiple interpreters and legal actors are involved in a case.

Good concludes that interpreters are not passive actors in the process. On the contrary, they may have an impact on the final outcome of cases. Interpreters may face dilemmas not only as far as translation is concerned, but also when they offer solicited or unsolicited explanations concerning the applicant's culture to contextualise the testimony, a contribution that should be extraneous to their role according to the court guidelines. In support of his arguments, Good offers concrete examples based on his personal experience as an expert witness in asylum cases. These examples clarify the issues he discusses, so the reader can easily connect with the situations he refers to and which may arise during the proceedings.

Illustrations of interpretation problems that impacted the final outcome of cases can also be found among the UK decisions that I have analysed for the CUREDI database. Although in most asylum and immigration cases, the problems that Good discusses tend to be addressed by the judges and the parties involved at the hearing and rectified at that time, in other cases they have constituted grounds of appeals. Some of these decisions have dealt with the following issues: the role of interpreters; the principles to be followed when one of the parties at the hearing raises concerns regarding the court interpreter's ability to perform his/her task or his/her independence; transliteration of names; the use of dialects or language variations according to the geographical location; and the use of English as a language during the proceedings instead of the applicant's mother tongue through an interpreter.

The role of the interpreter can become contested where he/she is asked questions concerning the applicant's language and/or culture, but also when he/she asks questions to the witness or parties involved that should instead be asked by the judge or the lawyer [8: 209]. Such interventions are often done in good faith, with the genuine intention of facilitating communication. However, court interpreters must be aware of their task and not override the other parties' responsibilities. Mohamed (role of interpreter) Somalia [2011] UKUT 337 (IAC), one of the leading cases on the role of court interpreters, addressed whether a court interpreter is 'allowed to give "evidence" in court concerning the language spoken by the appellant'. [1] The Upper Tribunal held that that court interpreters' primary role is that of facilitating communication. Court interpreters must avoid to become engaged in contentious issues or turn into advocates for the asylum seeker. Interpreters' neutrality is fundamental to ensure trust in their translation and fairness during the procedures. [2] Whereas the temptation to ask the interpreter about an asylum seeker's language is understandable, when such an issue is disputed, the rules of evidence require calling a witness in advance and establishing their expertise. Doing otherwise would be an error of law. The correct approach to take when an applicant's nationality or country of origin is disputed is illustrated in a number of cases that I have reviewed. For example, in Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: AA/11289/2015 (6 Oct 2016), the analysis of the applicant's language clearly suggested that he belonged to an Amharic linguistic community in Assab, Eritrea; in ASA (Bajuni: correct approach; Sprakab reports) Somalia CG [2022] UKUT 00222 (IAC), the court asserted that 'in assessing an applicant's claim to be a Somali national of Bajuni origin, the decision-maker must take a holistic approach'. This means that the decision-maker shall consider the applicant's familiarity with life in Somalia, especially concerning the Bajuni; and the applicants's knowledge of Somali and Bajuni languages, depending upon the applicant's personal history. In this regard, expert evidence of knowledge of Bajuni shall encompass morphology, syntax, phonology, and vocabulary to identify specific features that indicate their Bajuni heritage or the absence of such features; and in Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: PA/01330/2020 (V) 28 April 2021, the language analysis report strongly supported the conclusion that the appellant's language was consistent with that spoken in a specific part of Ethiopia, which contradicts her claim to be an Eritrean national.

One key case on the principles to be followed when one of the parties raises concerns on the court interpreter's ability to perform his/her task or his/her independence is that of TS (Interpreters) Eritrea [2019] UKUT 00352 (IAC). The circumstances where a court interpreter's ability and/or independence can be challenged are varied, and can include questions of his/her qualifications, as well as whether a court interpreter's political inclinations vis-a-vis the asylum seeker's viewpoints impact the translation. In TS (Interpreters) Eritrea, the facts involved an Eritrean asylum seeker who, at the hearing, together with her representative, raised issues about the court interpreter misinterpreting or not fully translating some of her statements. The lawyer requested a postponement of the hearing and a new interpreter, stating that it would be procedurally unjust to continue under the current circumstances. Despite this, the first-tier judge declined to grant a postponement, as the appellant's cross-examination was already nearing its end. Moreover, the first-tier judge found that the problems with the interpretation did not impact the essential aspects of the applicant's testimony and credibility. The appellant's credibility was called into question due to discrepancies between her former witness statements and her interview record with the Secretary of State. The turn of events took place after the hearing, when outside the Tribunal at the bus stop, the appellant's lawyer was approached by the court interpreter in a confrontational manner. The court interpreter specifically questioned the appellant's credibility regarding the accuracy of the interpretation and the potential risks she would face in Eritrea. The lawyer chose not to engage in a conversation, but was concerned about the court interpreter's impartiality. To address this, the lawyer submitted a witness statement to the first-tier tribunal detailing the events that occurred after the hearing and requesting that the judge review it before making a decision on the appeal. Unfortunately, the statement was not presented to the first-tier judge in a timely manner, resulting in the dismissal of the appeal. In light of all this, the Upper Tribunal reviewed and granted the appeal, as they found that the first-tier judge made a legal mistake by refusing to reschedule the hearing because of issues with the court interpreter's accuracy. Importantly, the Upper Tribunal took the opportunity to issue guidelines to address accuracy problems with translations during hearings. In particular, the Upper Tribunal specified that the responsibility of verifying court interpreters' qualifications and translation accuracy lies with the judge at the beginning of the hearing, who shall promptly address any concerns raised by the parties. If minor issues arise, they can usually be swiftly resolved by seeking clarification or breaking down questions into smaller segments, but if there are significant problems, the hearing may need to be adjourned and a new interpreter appointed. Appellate judges must approach lower judges' assessments of interpreter-related issues with caution, as such assessments are considered to be part of judicial expertise, making it difficult to challenge interpretation matters on appeal without substantial evidence of adverse impact on the case outcome. The Upper Tribunal determined that if the first-tier judge had reviewed counsel's statement, a different decision would have been made, leading to an adjournment of the hearing. Consequently, the Upper Tribunal decided not to address the additional arguments disputing the judge's credibility findings on witness statements and other non-verbal evidence [10].

Another case where the court interpreter's competence was disputed was SJ (Hearing Interpreters) Iran [2004] UKIAT 00131. Here the court interpreter responded to the appellant's criticism of her interpretation by lowering her voice so that she could not be heard. [3] On appeal, the Upper Tribunal remarked that, while they had sympathy for the interpreter, following such a course was a mistake. Appellate Authority hearings are typically held in public to ensure transparency and accessibility for the general public and individuals with a specific interest in the case. Therefore, the adjudicator made a mistake by allowing the interpreter to interpret in a manner that was too quiet for others to hear, thus hindering understanding.

As far as transliteration problems are concerned, in judicial decisions they seem to constitute grounds of appeal especially when they arise from documents submitted by the parties, such as witness statements or translations of original documents. An illustration is found in the cases of Nooh, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 1572 (Admin), Taher, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2274 (Admin), and Rahimi-Aghdas v Entry Clearance Officer, Teheran [2002] UKIAT 00391. In all these cases, the claimants submitted documents to the British embassies in their country of origin/residence and their applications were all refused because of inconsistencies in names and dates of birth. Some of these discrepancies were due to the efforts of transliterating local languages into Latin script. As the expert witness explained in the case of Taher, [4] the problem of inconsistent spelling becomes more challenging when Somali or Arabic names are written in an English-speaking environment due to the difficulty in accurately representing sounds unique to Somali and/or Arabic languages that are not present in English. He then provided the illustration of the spelling of the Arabic name Muhammad, which is spelled in a number of different ways in English, e.g., Muhamad, Muhammad, Mohamad, Mohammad, Mohamed, Mohammed, Mahamad, Mahamed, etc. He explained that these are not different names, but simply different anglicised spellings of the same name. [5] Still in Taher, the other expert witness explained that discrepancies in documents were also due to cultural differences: in Somali language there are no surnames: 'Names are constructed in the following order: a person's first name, father's first name, grandfather's first name.' [6] In Europe, the authorities tend to use the last name (so the grandfather's first name) as the surname. However, for a Somali, that is incorrect. [7] Thus, in line with Good's paper, these cases show how expert evidence addressing such issues is crucial to better understand the inconsistencies created by languages and difficulties in contextualising different usages of names and concepts within a European cultural framework.

Several cases concern how interpretation can be made more difficult by the applicant's use of dialect and the inability to properly communicate with the appointed interpreter. For example, this occurred in Davidhi v Secretary of State for the Home Department [2002] UKIAT 02250, where one of the issues raised was that the interpreter spoke 'northern Albanian', whereas the applicant was from the southern region of Albania, where there are minor variations in the language [12]. However, the interpreter explained he was qualified to interpret for persons coming from all parts of Albania and Kosovo. He also added that the only variations noted between individuals residing in the northern and southern regions were limited to their accents. Moreover, throughout the entire hearing, there were no indications of any communication issues between the interpreter and the appellant; the appellant responded promptly to each question, demonstrating complete comprehension, while the interpreter flawlessly translated his responses smoothly. Accordingly, the appeal was dismissed. [8]

Similarly, in another case, Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: PA/07269/2017 (05 February 2019), the appellant claimed to have had problems in his Home Office interviews due the interpreter speaking a different dialect. In particular, the applicant claimed that she spoke Sorani, while the interpreter spoke Bardini, which are both variants of Kurdish. However, the judge noted that there was a lack of evidence presented to indicate that the two dialects are completely incomprehensible to each other or to what extent they vary. Moreover, the appellant's legal representatives did not raise this particular issue again. In light of this, the appeal was refused. [9]

In some cases the proceedings were conducted in English, but then the applicant raised the issue that she/he did not feel comfortable without a qualified interpreter and the testimony was affected. For instance, in the case decided by the Upper Tribunal, UI-2022-005621 (17 Sep 2023), the appellant stated that at the hearing there was no Bengali interpreter of Sylheti dialect even though one had been requested. The appellant could, however, speak sufficient English, and the judge persuaded him to go on with the case. In his witness statement, the appellant stated that he had felt uneasy and was anxious during the testimony. The appellant added that he freely agreed to proceed in English but with hesitation. In light of these facts, the judge refused the appeal.

It is, therefore, important to acknowledge that court interpreters play a vital role in accurately conveying the intended message. Their work is very complex, and it is crucial to upholding the integrity of the legal process. Like Good, other authors have discussed how the use of court interpreters changes the proceedings and sometimes even impacts the final outcome of cases [8]. Berk-Seligson has examined how court interpreters do not perform their jobs like 'machines', merely translating from one language to another, and the reliance on them raises a set of issues [8: 2]. Such issues include situations where interpreters act as cultural mediators in an effort to explain the case to the judge—explaining potential inconsistences or unfamiliar aspects of the testimony in order to make the account more understandable. In such cases, however, they are failing to stay within the bounds of the role attributed to them [ibid: 235]. Different interpreters in these circumstances may adopt distinct approaches, which can be influenced by their own personality traits, culture [13, 14], as well as the professional emphasis on maintaining a low profile [14: 395]. Other issues involve the use of 'alterations' in the translated language, such as including 'pragmatic elements' to explain a word or sentence. Such alterations can be either conscious or unconscious [8: 2], but regardless of whether they are intentional or not, they may create a different perception of the witness's credibility [ibid: 10]. Dialects, accents, speech delivery style (e.g., fast speech, interruptions, repetitions), cultural differences, and the use of politeness impact decision-makers' impressions [ibid: 143–145]. In this regard, Berk-Seligson explains how court interpreters might translate in a more polite register than the witness actually used when talking to the judge, given that they work for the court [ibid: 151], and how this type of communication has been proven to lead the court to attribute trustworthiness, competence, and overall more positive traits to the witness [ibid: 163, 165]. On the other hand, De Bruïne, Vredeveldt, and van Koppen have pointed out how interviewees also change their own speaking and tend to provide fewer details when talking through an interpreter [1], leading to credibility concerns.

In conclusion, interpreters are essential in aiding intercultural communication during asylum interviews and appeal hearings, but despite their crucial role, Good's article and the case law that I analysed reveal the potential for misinterpretation and credibility problems. They show how interpreters have an active role during the proceedings and how their work requires achieving a delicate balance between precision and thoroughness, especially when taking into account various cultural factors. Given the importance of the subject, it is hoped that future studies will carry on this research, especially with a focus on how an interpreter's culture and personal characteristics may have an impact on interpretation; how to improve interpreting in asylum proceedings; and how interpreting can impact credibility in asylum cases, particularly when dealing with vulnerable applicants.

Notes

[9] See also Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: UI-2022-005510 (23 November 2023). In this case, the respondent provided an interpreter for the interview. The interpreter spoke and understood the Arabic of Iraq. The appellant said during the interview, and his representatives asserted several times afterwards to the respondent, that the interpretation was unsatisfactory and that the appellant had not had a proper opportunity to put his case forward.

References

1. de Bruïne, Gabi, Annelies Vredeveldt, and Peter J. van Koppen. 2023. Culture and Credibility: The Assessment of Asylum Seekers' Statements. Psychology, Crime & Law. https://doi.org/10.1080/1068316X.2023.2279328.

2. Kagan, Michael. 2002. Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination. Georgetown Immigration Law Journal 17 (3): 367–416.

3. Pöllabauer, Sonja. 2007. Interpreting in Asylum Hearings: Issues of Saving Face. In Critical Link 4: Professionalisation of Interpreting in the Community, ed. Cecilia Wadensjö, Birgitta Englund Dimitrova, and Anna-Lena. Nilsson, 39–52. Amsterdam: John Benjamins Publishing Company.

4. Goffman, Erving. 1967. Interaction Ritual: Essays on Face to Face Behavior. Chicago: Aldine Publishing.

5. Brown, Penelope, and Stephen C. Levinson. 1987. Politeness: Some Universals in Language Usage. Cambridge: CUP.

6. Basnett, Susan. 2011. The Translator as Cross-cultural Mediator. In The Oxford Handbook of Translation Studies, ed. Kirsten Malmkjaer and Kevin Windle, 94–107. Oxford: OUP.

7. Cunnison Catford, John. 1965. A Linguistic Theory of Translation: An Essay in Applied Linguistics. Oxford: OUP.

8. Berk-Seligson, Susan. 2017. The Bilingual Courtroom. Chicago: University of Chicago Press.

9. Bianchini, Katia. 'The Role of Court Interpreters: Mohamed (role of interpreter) Somalia [2011] UKUT 337 (IAC)', CUREDI Database, CUREDI013UK020.

10. Bianchini, Katia. 'General Principles at Hearings with Court Interpreters: TS (interpreters) Eritrea [2019] UKUT 00352 (IAC)', CUREDI Database, CUREDI013UK021.

11. Bianchini, Katia. 'Evidence and Misspelling in Documents: Taher, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2274 (Admin)' CUREDI Database, CUREDI013UK022.

12. Bianchini, Katia. 'Use of Dialects at the Hearing: Davidhi v Secretary of State for the Home Department [2002] UKIAT 02250', CUREDI Database, CUREDI013UK024.

13. Spencer-Oatey, Helen, and Jianyu Xing. 2009. The Impact of Culture on Interpreter Behaviour. In Handbook of Intercultural Communication, ed. Helga Kotthoff and Helen Spencer-Oatey, 219–236. Berlin: Mouton de Gruyter.

14. Gibb, Robert, and Anthony Good. 2014. Interpretation, Translation and Intercultural Communication in Refugee Status Determination in the UK and France. Language and Intercultural Communication 14 (3): 385–399.