Culture, Language and Participation: What Upper Tribunal appeals reveal about procedural fairness in the asylum system

BY DR SELBI DURDIYEVA

Discussions of procedural fairness as a public law safeguard often overlook a central feature: its consistent application rests on the ability of everyone involved to understand the evidence and circumstances of the case beyond rules and regulations. This ability may be hindered by linguistic or sociocultural factors underlying asylum claims. This can, in turn, affect credibility findings and applicants’* effective participation. At the same time, there is no single way of getting the cultural aspect ‘right’. Linguistic and socio-cultural understanding is particularly important for tribunals that examine cases in which all applicants are either foreign nationals or have been foreign nationals, mostly from non-Western states.

Public Law Project’s report is based on analysis of 271 Upper Tribunal (Immigration and Asylum) Chamber decisions promulgated in the past two years, supplemented by hearing observations and semi-structured interviews with legal representatives, interpreters, and intermediaries. It found that the existing legal and policy framework contains important safeguards for procedural fairness, but these are inconsistently applied in practice. Legal analysis and commentary on appeals usually focus on the substantive aspects of cases with precedent-setting value. What such analysis does not account for, is what we can learn operationally by analysing a large number of decisions in which a judge assesses whether the principles of procedural fairness were upheld in the First-tier (Immigration and Asylum) Chamber Tribunal.

This blog is based on the first of two research reports that explore the role of cultural and linguistic understanding in immigration and asylum tribunals, focusing on issues arising from interpretation and translation, evidence, and procedural infrastructure. The second report focuses on family and private life, LGBTQ+ identity, trauma, mental health and vulnerability, and on how socio-cultural perceptions of these areas affect tribunals’ decision-making. Below is the outline of some of the key findings of the first report.

Interpretation is not only an administrative service

The findings demonstrate that interpretation and translation are often treated as logistical steps, with the role of interpreters being ‘invisibilised’, or unacknowledged. This invisibilisation may be reflected in the treatment and working conditions of interpreters, as reaffirmed by research participants, who argued that judges often ask interpreters to summarise or ‘tell the gist’ of what was said during hearings. During one observation of an Upper Tribunal hearing, an administrative clerk asked an unrepresented applicant whether they needed an interpreter 15 minutes before the hearing was scheduled to start. While such an observation may be an exceptional instance rather than regular practice, it nevertheless points to a lack of acknowledgement of the interpreter’s role in proceedings. The widespread practice of ‘whispered interpretation’ is often seen as a disturbance, with one research participant reporting that she is often asked by a judge not to ‘disrupt’ the process by interpreting. 

This is despite decisions showing that errors and discrepancies in dialect and linguistic interpretation can materially alter the outcome of the case and adversely affect credibility findings (UI-2025-000218; UI-2025-000846; UI-2023-003841; UI-2025-003748; UI-2023-000129). At the same time, although such errors are frequently acknowledged, they either remain unremedied (UI-2025-003748), or the burden of determining whether an interpretation was accurate is placed on the applicant, who often cannot identify such errors because they do not speak English. In one case, the Upper Tribunal judge held that the First-tier Tribunal judge erred in expecting an applicant to attest to the accuracy of the interpretation, given that they spoke no English (UI-2024-003216). 

The rollout of new Ministry of Justice (‘MoJ’) contracts for interpretation and translation services, starting in October 2026, aims to improve conditions for interpreters following the Public Services Committee’s 2025 report, Lost in translation? Interpreting services in the courts. While this is a welcome move, the interviewed interpreters responded cautiously, noting that the main provider of spoken-word interpretation remains the same, and pointing to the risk that the mindset shift necessary to embed interpreters as an indispensable part of the process and to grant them the respect and appropriate working conditions they deserve might not happen. Significant progress has already been made and reflected in the much-commended Equal Treatment Bench Book, a living, non-binding document that judges can consult cross-jurisdictionally on matters relating to equal participation.

The Equal Treatment Bench Book sets out good practice on interpretation (see chapter 8 of the February 2026 update), among other issues concerning equal participation. It is worth noting that in the immigration and asylum context, publicly funded interpreters are generally only available for hearings, unlike in other jurisdictions such as the criminal law context, where interpreters are available for pre-court conferences. Not only does this place additional pressure on already resource-constrained legal representatives to secure their own interpreters, but it can also fragment the communication process at the risk of introducing inconsistencies or errors. Such disparity in the treatment of interpretation across jurisdictions raises concerns that the risks of error are considered less consequential in cases involving immigration and asylum claims, where interpretation seems to be perceived as more a logistical convenience than an access-to-justice issue. 

The existing guidance, although welcome, could be updated and enhanced in a number of ways, including:

• to enable interpreters to act in pre- and post-court client conferences as they do in other jurisdictions;
• to provide interpreters with detailed briefings including, as suggested by one research participant, ‘the context of the case, the purpose of the interaction, and any specific sensitivities’ an applicant might have;
• to encourage ongoing checks on whether the applicant and interpreter understand one another (not only at the beginning and end of the hearing as stated at para 98, p. 157);
• to be mindful that languages have multiple dialects, and to ensure any dialect issues are identified early in the process;  
• to explicitly state that asking interpreters to summarise goes against their role and risks procedural unfairness;
• where there are complex points of law, to introduce simplified judicial prompts to check understanding after complex or sensitive evidence, asking applicants, for example, to explain in their own words what has just been asked;
• to recognise that translated evidence carries risks of errors and discrepancies;
• to be particularly mindful of interpretation in age assessment disputes and cases with vulnerable participants who might not be in a position to complain if interpretation goes wrong, and;
• to embed respect for interpreters by allowing them sufficient time and granting them appropriate working conditions.

Context Matters

The core of any asylum claim is that a person might face persecution or harm upon return to the country of origin. Assessing the nature of such persecution or harm upon return, and the context of the person’s flight, requires an understanding of the socio-cultural and political conditions in the country of origin. This is not an easy task and requires the involvement of country experts and engagement with country guidance. Both the First-tier Tribunal and the Upper Tribunal (Asylum and Immigration) Chamber exercise considerable care in their approach to this evidence. 

At the same time, the Upper Tribunal judges often rule on issues concerning First-tier Tribunal decision-making regarding country and expert evidence, such as:

• the reasoning influenced by cultural assumptions about someone’s behaviour (UI-2025-001678);
• cultural misunderstanding of document formats and failure to provide appropriate reasons for a decision (UI-2022-006279);
• failure to apply or properly engage with the Country and Policy Information Note (CPIN) and country evidence (UI-2025-001600; UI-2025-001968);
• failure to weigh individual circumstances against country evidence (UI-2025-001316);
• misunderstanding of the foreign administrative system (for example, in one case, the Upper Tribunal found that the First-tier Tribunal had failed to consider evidence about Iraq’s civil registry system and to understand the difference between a governorate and a town) (UI-2023-001986);
• unrealistic expectation regarding the evidence an applicant is expected to obtain (e.g., the Home Office expected an applicant to produce evidence about the gang that trafficked the applicant when he was a child) (UI-2024-001857); and
• flawed reasoning resulting from improper or incomplete engagement with the evidence presented by the parties (UI-2025-000218; UI-2024-003437).

The First-tier and Upper Tribunal judges often acknowledge the limits of their understanding of certain cultural contexts. For example, in one case, the Upper Tribunal judge acknowledged a limited understanding of the role an individual plays within a religious group, with reference to a video submitted by an applicant as evidence that showed the applicant seated in a chair resembling a throne, with garlands around their neck (UI-2025-001127). 

Expert evidence is indispensable, yet its quality varies. For example, in one case the Home Office used Language Analysis for Determination of Origin to assess whether an applicant was from Syria. The analysis was conducted by an analyst who had never been to Syria, had visited Iraq eight years earlier, was born and raised in Armenia, and had lived in Russia. The 16-minute audio used to make the language-of-origin assessment was lost, which the Upper Tribunal held to be a serious procedural omission (UI-2022-006224). 

Regarding expertise in age assessment, the Upper Tribunal held in one case that the most reliable expertise came from those who engaged with the applicant in educational and care settings, rather than from age assessors who interacted with the applicant solely for age assessment purposes and relied on appearance and demeanour. The Upper Tribunal judge in this case repeatedly emphasised that appearance and demeanour alone are unreliable indicators of age, as they can be problematic and may reflect biases and assumptions about how one is expected to look in certain cultures (JR-2023-LON-001490). A recent illustration of the unreliability of age assessments based purely on appearance and demeanour is the submission accepted by the High Court, where the Court reaffirmed that someone might appear older as a result of their experiences and ill treatment (UHF (R, on the application of) v Manchester City Council [2026] EWHC 1481 (Admin), §38(c) and §40).

Inconsistent engagement with country-related information, including its socio-cultural context, creates a risk of material errors of law. These issues also stem from Home Office-level decision-making and from the evidence presented in the appeal. Tribunal procedure recognises the importance of country evidence, expert reports, and CPIN material. However, Upper Tribunal decisions show that First-Tier Tribunal decisions often involve avoidable issues, such as inconsistent application, selective engagement, and reasoning when assessing evidence rooted in unfamiliar cultural, political, and administrative contexts. In order to remedy this, the report recommends:

• reaffirming and emphasising the need to engage thoroughly and consistently with country evidence;
• strengthening guidance on documentary evidence and cultural bias;
• providing clear reasoning in decisions when using or dismissing evidence put forward by parties; and
• improving overall evidence quality.

These could be achieved by updating existing documents and guidance and by providing training and briefings for both judges and decision-makers. It is as yet unclear what training ‘adjudicators’ in the planned Independent Immigration Appeals Authority will be given, but the Home Office’s stated move away from judges in the appeals process raises significant concerns about the impact on quality decision-making and access to justice. (See ILPA’s May 2026 response to the Call for Evidence on the New Independent Appeals Body, PLP’s response, and UNHCR’s observations on ‘International Standards and Core Procedural Safeguards to the Considered in the Design of the New Appeals Body’.)

(In)equality of arms when it comes to participation

The decisions also highlighted:

• the structural disadvantages faced by those navigating the system without quality legal representation (UI-2025-001589; UI-2025-001589; UI-2022-006662; JR-2023-LON-002366);
• instances in which legal representatives failed to serve the applicant adequately (UI-2022-006609; UI-2025-000771); and
• the resource asymmetry and structural disadvantage for unrepresented appellants (UI-2023-005368; UI-2024-005720).

Effective participation, access to justice, and procedural fairness, particularly in complex cases requiring linguistic and socio-cultural understanding, are contingent on quality legal representation. For legal representatives, this means that they not only engage with the points of law and rules, but also the cultural specificities. Practical steps that could be taken by legal representatives include:

• anticipating cultural or contextual misunderstandings (for example, asking clarifying questions to clients about socio-cultural practices, family structures, social expectations) and being aware that social practices vary;
• treating interpretation as a procedural fairness issue (raising concerns early if a client demonstrates unease about interpretation; not discounting the importance of dialects; recording any issues regarding translation and interpretation and raising them proactively in witness statements and skeleton arguments; proactively disclosing any potential inconsistencies as a result of interpretation/translation with the Tribunal);
• approaching the issues regarding evidence with precision (for example, referring to the relevant sections of CPINs rather than to them as a whole; explicitly explaining how the country information relates to the client’s specific circumstances; where there are discrepancies between country information and the client’s account, explaining why the client nevertheless faces risk and setting out what makes their situation unique; ensuring that any expert reports have a clearly spelled-out methodology and use quality sources; clearly identifying the questions that expert reports are seeking to answer; requesting permission early where the number of pages of evidence may exceed the total allowed).

For unrepresented applicants, it is commendable that judges have frequently gone to considerable lengths to assist them, guiding them through the process, showing lenience when necessary documentary evidence was not adduced, or assisting them with procedural requirements (UI-2023-002392; UI-2023-005645 & UI-2023-005646; UI-2023-005013). Such assistance reflects the ethos of reform of the tribunal system, which, in its design, was intended to be user-friendly; however, it cannot, on its own, substitute for legal advice.

Regarding equality of arms and resource disparities, unrepresented appellants stand in stark contrast to the resources available to the Home Office. The problem is particularly acute for those whose first language is not English and who also have to adjust to different socio-cultural realities. The Upper Tribunal decisions demonstrate that judges depend on the quality of evidence put before them, which is variable, and that they have to navigate cases in which applicants are at a disadvantage due to poor-quality legal representation. Procedural fairness is therefore contingent on structural and material aspects, such as institutions, infrastructure, and an array of professionals who support applicants.

Procedural culture of care and judicial restraint

The degree of empathy displayed by judges is evident from reading the decisions. In some cases, judges express that they appreciate the ‘decision will be disappointing for the appellants and sponsor’ (UI-2024-005501 & Ors.); in one case, an Upper Tribunal judge stated that they ‘cannot help but have sympathy’ for an applicant’s situation (UI-2025-001674); or a judge might include ‘sadly’ when discussing someone’s health deterioration or someone who died (UI-2022-005964; JR-2025-LON-000414; UI-2023-002392; UI-2024-003983 & UI-2024-003984; UI-2025-000375). At the same time, judges clearly demarcate the limits of what is within their remit, emphasising the difference between perceived or substantive fairness and the fairness enshrined in public law (JR-2023-LON-002366; UI-2024-001844).

The decisions also delineate the notion of care in decision-making, with the Upper Tribunal judges holding that issues such as typographical errors, failure to engage with the relevant part of the evidence, failure to explain why a certain part of the evidence is dismissed, or inadequate reasoning may result in a material error of law or undermine confidence in the decision (UI-2024-001799; UI-2024-001625). The decisions demonstrate a broad array of procedural fairness issues, in which careful, attentive practice is integral to how decisions are formulated and how the process is carried out. Such practices are often taken for granted, but their importance becomes visible precisely when they are absent. 

The way forward – cultural, linguistic, and procedural sensitivity

The tribunal judges and staff operate in a highly demanding environment, balancing procedural and substantive rules and regulations, the institutional culture, and a large backlog of cases inherited from Home Office decision-making. The research analysed decisions of the Upper Tribunal reviewing those of the First-Tier Tribunal. However, the findings demonstrate the importance of a holistic, system-wide approach since issues arising from cultural or linguistic misunderstanding at earlier stages of decision-making place a burden on the system as a whole. Though procedural safeguards serve as important guarantees of fairness and access to justice, they do not, on their own, ensure consistent decision-making without contextual and linguistic understanding. 

The issues identified by the judges of the Upper Tribunal underscored the importance of using procedural safeguards that account for linguistic, cultural and procedural barriers. These structural issues demonstrate a need for a change in mindset that acknowledges the importance of quality interpretation, contextual understanding, and equal participation, which would contribute to fewer delays, remittals, and adjournments, and to more efficient functioning of the system. A system-wide approach to the issues is needed, rather than the proposed Independent Appeals Body, which PLP believes is ill-conceived and risks undermining judicial independence and the rule of law.

The report’s recommendations are intended for a broad range of stakeholders, including the MoJ, the HM Courts & Tribunals Services, the Judicial College, and the Home Office, and focus on training, updating existing guidance, and providing stronger support for unrepresented applicants. For the immigration and asylum tribunals – which deal with people whose experiences, languages, and socio-cultural backgrounds differ from those of the institutions deciding their claims, cultural and linguistic awareness, as well as procedural safeguards, are central to both access to justice and procedural fairness.

*Although the term ‘applicant’ is reserved for judicial reviews, it is used uniformly throughout the report and in this blog to refer to claimants in asylum or immigration cases, as they could be either an appellant or a respondent at the Upper Tribunal, as either side can bring the case to the Upper Tribunal.

Public Law Project’s report, Cultural, linguistic and procedural barriers to access to justice in immigration and asylum tribunals, was published on 30 June 2026.

PLP is hosting a free webinar dedicated to the launch of the report, featuring registered public service interpreters, legal representatives, and a country expert, on 7 July 2026, 14:00-15:30. Registration is open via this link.  

ILPA invites members and other leading experts to contribute articles to its monthly blog. The views expressed in all blog posts are the authors’ own and are not necessarily those of ILPA.

Related reading

Supporting Access to Justice in Immigration Tribunals: Identifying Communication Needs Beyond a Language Barrier by Florence Roberts-Bowman and Holly Hartzenberg

Related working group

ILPA Courts and Tribunals Working Group

Document Date

Tuesday June 30, 2026