Translation and Asylum Claims: Matters of law, language and silence

Decisions about refugee status are based on an assessment of whether an individual's narrative establishes that they have a "well-founded fear of persecution". While the difficulties associated with reaching reliable decisions in asylum cases are well documented, matters of language, translation and interpretation have in recent years raised particular concerns. Asylum applicants speak a wide range of different languages and come from a variety of cultural backgrounds and this means that their narrative is usually communicated to the decision maker through an interpreter. While "just" decision making would appear to call for precise interpretation of an applicant's narrative, the asylum determination process involves many situations where uncertainty about language exists, and where linguistic precision is unachievable.
In the UK asylum decision-making process, the UK Border Agency(UKBA) have used tools such as forensic linguistic analysis to determine nationality, and they also provide a written ( or less frequently an audio) record of the asylum interview which forms the basis of their decision. At the appeal stage, appellants may adduce evidence from language professionals which questions the validity of linguistic analysis as a means of establishing nationality, or which challenges the interpretation provided at interview, or the content of the written interview record. The assessment and ranking of such evidence by judges can be hard to predict. Tensions also arise from the fact that while the centrality of the asylum narrative, combined with time pressures, mean that the applicant has minimal control over the scheduling of their interview with the determining authority, it is also well known that shame, lack of trust and the effects of trauma can make applicants hesitant to disclose experiences such as rape and torture. At the same time, failure to give a full account at the appropriate time can mean that the applicant loses their chance to give a full account, and thus to the refusal of a potentially valid asylum claim. The recounting of any narrative of persecution is bound to cause distress to the applicant, regardless of when it is given, but there is some evidence that the right to silence in the criminal process can enable the individual to give more reliable testimony, insofar as it gives them some control over when to speak (Dennis, 2010).
The use of language evidence, the potential for miscommunication which arises from interpretation and translation, and the impact of those issues at different stages of the asylum process thus present significant challenges for interpreters, translators and other language professionals involved in all stages of the asylum process, as well as for legal representatives and decision-makers, and the literature indicates that language and communication issues are concerns in any country with an asylum process. These practices and protocols rely on a view of language and translation as stable and capable of accurate meaning. In linguistic theory such views of language have been subject to deconstruction and are inherently problematic. Bringing together linguistic theory and legal practice in the context of asylum interviews and decision-making enables a fresh perspective on the difficulties involved in translation.
This project will bring academics and practitioners together in a series of three interrelated workshops in order to map pressing concerns in this area, examine the experience gained in a number of jurisdictions and start to explore ways in which language issues can be addressed, for example through the identification of common areas of concern, and the adoption and implementation of guidelines.

The project will contribute to knowledge exchange and the sharing of best practice for those engaged in the field (translators, lawyers, UKBA caseworkers, judges, charities, social services and asylum seekers themselves). All stakeholders have identified translation and interpretation as key in a range of reports and several of these have approached the University of Glasgow's Refugee Asylum Migration Network (GRAMNet - see Case for Support) directly with a view to developing an expert forum for the discussion and development of knowledge in the area of asylum adjudication language and translation. In addition to the academic impacts already identified, the project will lead to impacts in the following environments:

1. Commercial private sector beneficiaries include: (a) law practitioners in the Scottish and UK jurisdiction who deal with all stages of the asylum determination process directly including trainee solicitors through to partners in law firms; (b) members of representative bodies, including the formal involvement of Immigration Law Practitioners Assn (ILPA) and Scottish Immigration Law Practitioners Association(SILPA); (c) interpretation and translation services, provided on private contract. All will gain updated knowledge and knowledge of practice in other jurisdictions internationally as well as insights from applied linguistics and translation studies which can improve protocols and professional guidelines.

2. Policy-makers within international, national, local or devolved government and government agencies who would benefit from this research include decision makers and policy makers in international jurisdictions in Australia, Canada, The Netherlands, Belgium and the UK. They will benefit through participation in the workshops and engagement in debates which accompany the appropriate use of interpretation, translation and linguistic evidence in asylum cases.

3. Beneficiaries within the public and third sectors who might use the results to their advantage include: (a) charities involved with translation and interpretation services and evidence who will benefit from renewed understanding of the role of the translator and from guidance to translators and their employers (especially Medical Justice; Medical Foundation for the Care of Victims of Torture; Detainee Visitors and National Coalition of Anti Deportation Campaigns); (b) UKBA, who will benefit through expert engagement in three unique workshops with academic and legal experts in the field (in particular this will promote a deeper recognition of the role of translation in asylum decision-making and could save considerably on the cost of appeals through improved decision-making practice and use of translation in the initial stages); (c) Scottish Refugee Council, Unity Centre, Positive Action in Housing, Integration Networks, Oxfam Scotland - all members of GRAMNet who will all benefit from expert guidelines and advice as disseminated through the network, outputs and impact events leading from the workshop outcomes; (d)translation and interpreting course providers who will benefit from the findings as a basis for curriculum renewal.

4. Beneficiaries within the wider public. The clarification of good practice and the development of training materials for enabling an intercultural understanding of the importance of good translation and interpretation is likely to benefit future asylum applicants in the presentation of their claim.

All the groups will benefit from the identification of the issues involved in legal interpretation, through the ability to refer directly to international cases of good practice, to guidelines for good practice in interpretation and through access to a network of experts able to advise directly from an understanding of internationally reviewed research. This will allow a new benchmark to be set for the training and use of translators in all aspects of the asylum process.