R (Dirshe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Lord Justice Keene,The Master of the Rolls |
| Judgment Date | 20 April 2005 |
| Neutral Citation | [2005] EWCA Civ 421 |
| Docket Number | Case No: C4/2004/1710(A)(B)&(C) |
| Court | Court of Appeal (Civil Division) |
| Date | 20 April 2005 |
[2005] EWCA Civ 421
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
MR JUSTICE HARRISON
The Master of the Rolls
Lord Justice Latham and
Lord Justice Keene
Case No: C4/2004/1710(A)(B)&(C)
Nicholas Blake, QC & Shahram Taghavi (instructed by Messrs O'Keeffe) for the Appellant
Gerard Clarke (instructed by Treasury Solicitors) for the Respondent
The appellant is a national of Somalia. He arrived in the United Kingdom on the 24 th February 2004 and claimed asylum two days later. In accordance with the usual practice, he was provided with a Statement of Evidence Form on which to set out the basis of his claim, which he prepared with the assistance of his representatives and sent to the respondent on the 9 th March 2004. On the 19 th March 2004, the respondent informed the appellant's representatives that the appellant should attend for interview by an Immigration Officer, in accordance with the usual procedure. On the 1 st April 2004, the appellant's representatives wrote to the respondent requesting that the interview be tape recorded, either by the appellant or by the respondent and giving notice that unless the interview was tape recorded, the appellant would apply for judicial review. The respondent refused the request that the interview be tape recorded; and these proceedings were accordingly commenced. The application for permission to apply for judicial review was refused by Harrison J on the 20 th July 2004; and on the 12 th November 2004 Sedley LJ gave permission to appeal against that refusal and ordered that the application proceed in this court.
It has been the consistent policy of the respondent that applicants for asylum should not be entitled to tape record the interview with the Immigration Officer, which is an integral part of the administrative decision making process in dealing with any claim for asylum. This policy was considered by Pitchford J in Mapah v SSHD [2003] EWHC 306 (Admin). In that case, the claimant had made a similar request to that made by the appellant in the present case, with the same result. The judge had before him a considerable body of material setting out the history of the policy, the protocols governing the conduct of the interview by the Immigration Officer, concerns about the quality of interpreters and interpretation during the course of such interviews, and problems relating to the accuracy of what is intended to be a verbatim note of such interviews taken by the Immigration Officer himself during the course of the interviews.
The relevant protocol was published in 2003. In this the interview is described as "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."
Immigration Officers carrying out the interviews are specially trained. Interpreters appointed by the respondent are present for 90% or so cases where interpretation is necessary; and interpreters are required to reach certain minimum standards. The applicant is entitled to be accompanied by a representative, legal or otherwise, and an interpreter of his or her own. The officer is required to "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." The record will however, only contain the question, in English, and the English translation given by the interpreter of the answer.
The record of the interview is provided to the applicant, who is to be given an opportunity to record any disagreement at that stage, and is given a further five days in which to submit any comments, queries, or corrections. Although at one time it was the practice for the interview to be read back to the applicant, that policy changed in 2003 so that this would only occur in exceptional cases, for example where the applicant appeared to be particularly disadvantaged in some way or another.
On the basis of this material, with which we have also been provided, Pitchford J held that the policy not to allow tape recording of interviews was not irrational and did not result in procedural unfairness justifying intervention by the Courts. Harrison J, when refusing permission in the present case, considered that there was no material difference between the present practice in relation to interviews and that which was considered by Pitchford J, and therefore dismissed the application on that basis. Before us, Mr Blake QC, on behalf of the appellant submits that Harrison J was wrong in that there has been a material change in the practice in relation to interviews, alternatively that we should re-visit the decision of Pitchford J in Mapah.
The material change in practice is that since the 1 st April 2004 public funding has not, generally, been made available of the attendance of representatives or interpreters at interviews. The change was made by the Immigration Contract Specification (Immigration) which states, so far as material:
"We will not pay for attendance at interviews conducted by the Home Office by you or any agent of yours unless you are authorised by us or we have granted you an extension to the Legal Help Cost Limit for this purposes.
1. You are authorised to claim reasonable costs in addition to the Legal Help Cost Limit for time spent, including travel and waiting, in accompanying a client to a substantive interview where:
a. The client is subject to a Home Office fast track process …. or
b. The client is to be interviewed by an Immigration Officer under PACE (usually in relation to an offence connected with illegal entry); or
c. Where it is alleged the client may impose a threat to national security.
2. You may apply for an extension to the Legal Help Cost Limit to cover the cost for time spent, including travel and waiting in accompanying the client to an interview where:
a. The client is a minor or claims on reasonable grounds to be a minor or
b. The client suffers or appears to suffer from a "mental incapacity"…..
c. In either case, the Home Office nevertheless intends to proceed with an interview.
…."
Mr Blake submits that this has changed the position radically from that which pertained at the time that Pitchford J considered the question. At that time it was considered good practice by all those representing applicants for them to attend the interview, if appropriate with an interpreter, so that they could ensure that the interview was properly conducted, the interpreter was providing a competent and comprehensive interpretation of both the questions and the answers, and the verbatim record was a reliable record of what the applicant had been asked and had said by way of reply. He submitted, and the evidence with which we have been provided clearly supports the submission, that the interview can be a critical factor in the determination of any appeal in the event of a refusal by the respondent to grant asylum, as it can be relied on, on the one hand by the applicant to show consistency in his account, or on the other by the respondent to throw doubt on his credibility by reason of either inconsistency, or the omission of what are said, at...
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