RLS lawyer, Zofia Duszynska, has written a detailed practical guide to Asylum Interviews for Free Movement.
The article explains how to address many of the problems experienced in relation to asylum interviews – a process which can often be one of the most critical parts of claiming asylum.
You can read the full article below, or access it on Free Movement here.
Asylum interviews: what can go wrong and what can you do about it?
Your client has (at last) got a date for their asylum interview. What could possibly go wrong? Quite a lot really, and so below I take a look at some of the issues I have encountered in practice and how to approach them so as to get the best possible outcome for the applicant.
The invitation letter is not received
Recently I received a text message reminding me of an asylum interview in six days’ time. This was a surprise, especially as the client was unnamed and we hadn’t received any other notice of an interview. This is not uncommon, there have been numerous reports of people missing their asylum interview because they did not receive the invitation letter.
What can you do?
Unless you or the client receives an invitation letter, there are limited ways of finding out who the interview is for. You can email cpil-interviewenquiries@homeoffice.gov.uk or asylumcentralcommunicationshub@homeoffice.gov.uk and request information but a response may not be received in time.
The implications for a client of missing an interview are serious. The burden of proof in establishing an asylum claim to the required evidential standard is on the applicant and the substantive asylum interview is the principal fact-finding exercise conducted by the Home Office.
Paragraph 339NA of the immigration rules states that applicants will be interviewed prior to a decision:
Before a decision is taken on the application for asylum, the applicant shall be given the opportunity of a personal interview on their application for asylum with a representative of the Secretary of State who is legally competent to conduct such an interview.
The rules also permit the interview to be omitted if a positive asylum decision can be made on the available evidence, for example in cases using the simplified procedure where interviews can be omitted for individuals from countries with high grant rates.
In all decision-making by a public authority, there is a duty to make sufficient enquiries and it is usual practice that if a negative decision may be made, applicants will have an opportunity to make their case (see eg. the Tameside duty). However, the immigration rules contain exceptions to this where the Home Secretary decides that no relevant asylum representations have been made, the claim has been made to delay or frustrate enforcement of a previous decision or the applicant is unfit or unable to be interviewed.
More worryingly, paragraph 333C(b)(v) of the immigration rules enables an asylum claim to be treated as withdrawn if an applicant fails to attend a personal interview.
If you discover an application has been treated as withdrawn on these grounds, the first step to restoring the claim will be establishing why the client didn’t attend the interview. Depending on the circumstances, for example if the invitation letter was never received, you may need to make a subject access request to obtain the full file.
Representations to have the claim reinstated can be made on your client’s behalf to the Asylum Outcome Review team. If this doesn’t achieve a result, the next option will be a pre-action letter challenging the failure to give the applicant the opportunity to substantiate their claim at interview.
The applicant may be encouraged by the Home Office to make a fresh claim instead. This will deprive them of the opportunity to attend an interview and if the claim is refused, the right to appeal may also be limited (see paragraph 353 of the immigration rules).
The applicant is unwell
If the applicant is too sick to attend the scheduled interview, it is vital that notification is provided immediately to the Home Office and medical evidence provided as swiftly as possible, preferably within five days. It may be difficult to obtain a GP appointment or confirmation of ill-health but provided that this is not a repeated issue, communication from the client or representatives with the Home Office (with the team whose address is on the invitation letter together with the central communications hub, details above) will usually achieve a second interview.
Interpreting at interviews
This is one of the main areas of difficulty. As per paragraph 339ND of the immigration rules:
The Secretary of State shall provide at public expense an interpreter for the purpose of allowing the applicant to submit their case, wherever necessary. The Secretary of State shall select an interpreter who can ensure appropriate communication between the applicant and the representative of the Secretary of State who conducts the interview.
The issue is whether the process of selecting an interpreter will ensure accurate and appropriate communication. Firstly, the language at interview will be the language used at screening unless the applicant has requested a different language beforehand. An unrepresented applicant needs to be aware they can make such a request.
Secondly, while the applicant can ask for a male or female interpreter (and the choice will be respected if a suitable interpreter is available), they are not able to request an interpreter from a specific national or ethnic background. This is because the Home Office views this as contrary to their equality policy and because this information about interpreters is not recorded on their database.
The interpreters’ code of conduct requires interpreters only to accept assignments in languages for which they are registered on the database but it is the interpreters themselves who provide the list of their language competencies. The potential for difficulty is evident. If the Home Office interpreting request is for Arabic and that language is listed by the interpreter, the interpreter may be selected without checking whether the interpreter’s dialect is appropriate for the client.
The interpreters’ code requires the interpreter to confirm at the beginning of an interview that the language and dialect are correct and we rely on them to do so. But if the applicant cannot communicate sufficiently, or sufficiently assertively, with the interpreter or the interviewer then they will be unable to alert them to any problems. Without some knowledge of English, it is impossible for them to know how their responses are being interpreted.
What can you do?
This depends on whether the client was represented at interview, whether the matter was raised at the time and whether the interview was suspended as a result. It will also depend on how easy it is to obtain a suitable alternative interpreter.
As a minimum, you should obtain the audio recording and written transcripts of the interview and take your clients’ instructions. You can engage a separate interpreter to listen to the audio and compare it with the written record.
You should draft a statement from your client identifying what happened and whether they mentioned the difficulties during the interview. If they didn’t raise an issue during the interview then they will need to explain why. If a legal representative was present, the statement could come from them.
The first avenue of complaint is to the interviewer and their line manager (if you have the details) and then to the responsible asylum team, copied to the asylum communications team (email above). You should explain precisely the errors in the interview and request a re-interview or that the incorrect translations are removed from the record.
If your client is willing to be reinterviewed, you can request a further interview. If they cannot face the prospect of a further interview, you can request that additional questions are put to them in writing or that a decision is made on the basis of the statement you have submitted.
If this does not resolve the issue, you can complain to the Home Office complaints hub. There is a 20 day target response time so if the matter is urgent, you may need to take other action in the meantime.
You may consider judicial review proceedings and send a pre-action letter outlining how your client has been deprived of the opportunity to substantiate their claim, and that the decision is not compliant with the immigration rules and Home Office policy. This is sent to the Home Office litigation hub: UKVIPAP@homeoffice.gov.uk
Remember that you can send an independent interpreter to the asylum interview with your client. The Home Office cannot reasonably refuse permission for them to attend. This is easier to achieve if they are accompanying a representative.
You can also advise your client prior to the interview that if they are experiencing problems with interpreting, they should inform the interviewer of this and request the contact details of the interviewer’s line manager so that the matter may be taken up afterwards. The caseworker guidance encourages this as a first line of complaint and a request for details should not be refused.
Example
I represented an Afghan minor client who spoke Pashtu and whose account involved descriptions of weaponry and communications equipment. The interpreter at his first interview was Pashtu speaking from Pakistan and did not understand the military terminology, which used a lot of Dari. The interview was littered with comments ‘I don’t know that word’, or transliterations of the word the client used.
Once the interview record was re-translated by an Afghan Pashtu speaker, it transpired that every Pashtu word used by the applicant had a simple English translation (e.g. “walkie-talkie”). The Home Office refused to re-interview with an interpreter from the appropriate ethnic background until judicial review proceedings were issued.
Suspension of interview
The Home Office guidance provides for interviews to be suspended if the client becomes unwell or stressed and unable to answer the questions, or if a problem with the interpreter is identified. It takes courage to make a complaint mid-interview and the Home Office will insist on confirming with the client several times that they don’t feel well enough to continue. This may be overwhelming in itself.
If the interview is suspended for any of these reasons and rescheduled, the interview should recommence from the point that it was suspended to avoid additional distress to the client.
Inappropriate questions
If the questions asked are inappropriate, an applicant can decline to answer them. Their credibility should not be placed in doubt because the line of questioning is inappropriate. However it is undoubtedly easier for a legal representative to identify inappropriate questions and request their removal from the interview record. This can be requested during the interview or afterwards. If no action is taken following such a request, it should be followed up by a complaint.
Example
A minor client had provided a witness statement containing an account of rape while being held at gunpoint. At interview she was asked whether prior to being raped, she had had sex before. When she said no, she was asked how it was she knew she was being raped if she hadn’t previously had sex. As legal representative I requested that the interview was stopped and asked to speak to the supervisor who was present in the interview room.
The questions were inappropriate as they demonstrated no understanding of the definition of rape, did not deal with the issue of consent and were clearly designed to undermine the minor client’s credibility. In addition, the applicant was openly sobbing and unable to speak but the supervisor required her to confirm – for the tape – that she felt too unwell to continue. I requested those questions were removed from the record and a re-interview arranged with an interviewer trained to interview minors.
Presence of legal representatives
Legal representatives are ‘welcome’ at interviews provided they are appropriately accredited to provide legal advice. They must provide evidence of this. As legal aid for attendance at asylum interviews is restricted to those who are under 18 at the date of the interview, most applicants will be unrepresented at interview.
While permitted to attend, representatives are discouraged from playing any part in the interview and frequently told they may not speak until the end. Obviously representatives should not answer on behalf of the client but where it is clear that the applicant does not understand, either because of poor interpreting or convoluted questions, representatives should alert the interviewer. It is vital to act swiftly to identify the problems.
The Home Office’s caseworker guidance on asylum interviews says that if representatives are disruptive, they will be excluded from the room but ‘disruptive’ is a high bar. Whether you are OISC or SRA regulated, you have a duty to act professionally but you also have a duty to act in the best interests of your client. This includes enabling your client to give their best evidence. It may mean speaking up to request a break or the suspension of an interview for any of the reasons stated above. The Home Office guidance acknowledges that representatives’ comments in this regard can be helpful.
Note also that if the client is represented and the representative does not complain at the time, this will be taken as a credibility point against the client if they later complain.
Further, the Home Office should not request the representative or a responsible adult leave the room while they ask questions.
What can you do?
If the interviewer has real reasons to believe that undue influence is being exerted on the applicant, the correct course of action would be to suspend the interview and reschedule it. The client’s agreement to this should be obtained by both the interviewer and the legal representative. A request should be made that any questions asked while either the representative or the responsible adult are absent from the room should be removed from the record.
Example
A trainee solicitor accompanied a minor client to a face-to-face interview with a responsible adult. The interviewing officer requested the representative leave the room while he asked a series of questions. The justification was they were sensitive and the child might not want to answer them in the presence of the legal rep and the legal rep might object to the line of questions.
The trainee left the room to check the situation with their supervisor and on being told there was no justification for this, attempted to re-enter the room to find the interviewer blocking the door. The trainee regained entry. The applicant, who was bemused by the situation, wished to continue with the interview rather than come back on another day. A request to the line manager was made that any questions asked in the representative’s absence should be removed from the record.
In summary
Prior to the interview, you should advise your client that if they have any concerns during interview to request the contact email of the interviewer’s manager. This request should not be refused.
The action you take depends on the nature of the issue and your client’s instructions. You must act in their best interest.
You will need to act swiftly as you have five days from the date of the interview to make representations in support of their asylum case. You should ensure that you have the written and audio records of your client’s asylum interview to compare them with your client’s instructions. If the client was unrepresented, you may need additional time to do this.
Take a statement from your client identifying what occurred, how they felt, whether they took any action and whether they took any action. This can be supported by statements from anyone else who was there, such as the responsible adult or legal representative.
Although you can include interview corrections in representations to the Home Office about the asylum claim, I have yet to see an asylum decision which references and accepts interview corrections made in representations, unless a witness statement was provided, and even then, they will often be presented as ‘alternatively you say…’ . If interview problems are likely to have a negative effect on your client’s asylum claim, you will need to take additional action.
Complain in writing to the Home Office, firstly to the line manager and the asylum team. Identify the issue. Is it a language problem or was the client unwell? What remedy does your client require?
If no response is received or the response does not resolve the problem, escalate the matter by making a complaint to the Complaints hub.
If this does not resolve the problem, consider judicial review proceedings to obtain a re-interview of your client or the removal of the interview record. While most first asylum claims should attract a statutory right of appeal, this may not adequately deal with any factual findings which have been made by the decision-maker and relied on in their decision. An interview which contains a flawed account of your client’s claim will negatively affect their case and it is in their interest that errors are corrected as swiftly as possible.
