UK - Court of Appeal, 20 April 2005, Dirshe, R (on the application of) v Secretary of State for the Home Department [2005] EWCA Civ 421

Facts:

The applicant asked that his substantive interview for asylum be tape recorded. The request was refused. He applied for judicial review of the refusal in the administrative court. His application was refused permission. He appealed to the Court of Appeal against the refusal and was granted permission.

The Home Office policy to refuse tape recording of the interview had been approved by the High Court in the 2003 case of Mapah. It was held that the policy was not irrational and did not result in procedural unfairness. 

On behalf of the applicant it was submitted that there had been a material change since that decision, insofar as when Mapah had been decided representatives were able to claim public funding to attend the interview either alone or with an interpreter. However in 2004, the public body which provided legal aid for those too poor to fund their own representation specifically declined to pay for attendance at interviews unless there were exceptional circumstances. The exceptions included where the applicant was subject to a fast track procedure, where the interview was held under the Police and Evidence Act or where it was alleged that the client may pose a threat to national security.

Representatives could apply for an extension to fund attendance if the applicant was a minor or claimed on reasonable grounds to be a minor or if she suffered or appeared to suffer from a ‘mental incapacity’.

The effect was that for the vast majority of legally aided applicants, there would be no funding for their representatives and interpreter to attend the substantive interview and no independent record of the interview. 

Decision & reasoning:

The court accepted that the change in the funding regime had removed a material safeguard against faulty interpreting and/or inadequate recording of the interview.  The court recognised the practical difficulties but ruled that every applicant, who was unable to afford private representation, should have their interview taped and be given a copy of the taped recording.

Outcome:

The appeal was allowed.

Subsequent proceedings:

The court also noted the need for both interpreters and interviewing officers to be specifically trained for the task.