Supporting Access to Justice in Immigration Tribunals: Identifying Communication Needs Beyond a Language Barrier

BY FLORENCE ROBERTS-BOWMAN AND HOLLY HARTZENBERG

Communication challenges may seem an obvious part of working with a client with whom there is not a shared first language. But language barriers can overshadow other needs, leaving some appellants facing increased barriers to effective communication and ultimately access to justice. Florence Roberts-Bowman and Holly Hartzenberg, intermediaries at Communicourt, take a deep dive into some of the barriers in identifying communication needs in Immigration Tribunals and share some insights and practice into how they can be overcome.

Understanding an appellant’s communication needs at the earliest possible juncture is critical. It is critical to an appellant’s ability to ensure their effective participation in an Immigration Tribunal hearing, and it is critical to their representative’s ability to understand their client’s case and needs in order to put them properly before the Tribunal. It enables and supports an individual to have access to justice. The available adjustments can range from careful consideration of whether an appellant should give oral evidence, to implementing a full range of special measures. In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123, §31(a), Ryder LJ endorsed that “…the early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing through the use of a CMRH or pre-hearing review.”

Solicitors are often the first line of defence when it comes to identifying a client’s communication difficulties. However, this can be challenging. It can require an adviser to don the hats of psychologist, speech and language therapist, doctor and detective – all while undertaking the demands of their own role. That is a lot of hats.

A note on prevalence

Data on communication differences and difficulties within Immigration Tribunals ranges from sparse to non-existent. However, data from other sources indicates that communication needs may well be particularly prevalent among Immigration Tribunal users, given that they are more likely to have experienced trauma, or may have an undiagnosed condition which impacts communication, or may not disclose a difficulty (for a range of different reasons):

• The 2018 feasibility study ‘Mental health morbidity among people subject to immigration detention in the UK’ found that, of those screened:
  • 52.5% had depression
  • 34.7% had a personality disorder
  • 20.8% had post-traumatic stress disorder (PTSD)
  • 21.8% were at moderate to high risk of suicide
  • 14.9% screened positive for autism
  • 13.9% screened positive for ADHD (Attention Deficit Hyperactivity Disorder).
    These levels are considerably higher than in the general population in England and Wales, and the “presence of mental disorder was comparable with levels found in prisons” (Sen et al, 2018).
    
    
• In the 2018 Danish population study, ‘Migration as a risk factor for schizophrenia: A Danish population-based cohort study’ it was found that the risk of schizophrenia for first and second generation migrants was higher than for the indigenous Danish population.

These statistics highlight how important it is to consider the possible impact of underlying health and neurodevelopmental conditions upon the communication, and ultimately participation, of appellants in Tribunals.

For neurodivergent appellants, communicating in a way that is different from the neurotypical majority can have significant implications, both in terms of a person’s effective participation (their ability to follow proceedings, understand advice, give informed instructions etc.), but also in terms of the perceptions of decision makers. For example, how an individual responds to questions could be misperceived as being evasive or intentionally difficult.

Difficulties with mental health, meanwhile, can have a range of interactions with communication, such as difficulty with:

• receptive language (processing and understanding what’s being said);
• verbal reasoning;
• executive function (staying on task); or
• understanding abstract language.

That is apart from more obvious difficulties like emotional dysregulation, or difficulties with attention and engagement, which may impact someone’s presentation and participation in the hearing room or in conferences. More broadly, experience of trauma may lead to difficulties with:

• maintaining attention;
• processing verbal information;
• retaining information;
• forming narratives; and
• non-verbal communication, such as reduced eye contact.

Early identification of communication needs is the first step towards making meaningful adjustments which aim to ensure the effective participation of appellants. However, early identification is often missed, and this can be due to a number of factors.

Difference with other areas of law

Despite the likely high prevalence of communication needs, intermediaries (one of a range of special measures available to Tribunal users) are used very rarely in Immigration Tribunals. From May 2024 to May 2025, Immigration Tribunals accounted for less than 1% of referrals to Communicourt. Over the same period, 55% of referrals came from Criminal proceedings, and 42% from the Family Courts.

There are, of course, important differences between Criminal, Family and Immigration proceedings. Immigration Tribunals are shorter and can be less rigid than Criminal proceedings. They may also be somewhat less complex, on the whole, than Family matters (where, for example, multiple positions may be held by multiple parties). Undoubtedly though, the outcome of Immigration proceedings can be of profound importance to a client, just as can the outcome of Criminal or Family proceedings.

It is important to consider the short time frame in which Immigration Tribunals are frequently conducted. There may be very few preparatory meetings between the individual and their legal team, and perhaps none between the appellant and their barrister until the hearing day (which, when it arrives, is over very quickly) with limited time to consider and implement strategies to ensure effective participation.

Over time, the cumulative effect of short discussions where someone’s comprehension is overestimated may lead to wrongly assuming that a client understands the court process and/or the thrust of their case. However, by this point, it is too late to tackle the misunderstanding head on, and preparatory stages have already been undertaken with ineffective communication support in place.

Regardless of the content and structure of proceedings, communication difficulties and differences may still mean that individuals face significant barriers to participation. For example, even with the best intentions of a Tribunal, simplifying vocabulary and chunking key information into four keyword sentences during proceedings – all through an interpreter, who may need to adapt or further simplify what is said to ensure some Tribunal users can ‘follow the thrust’ – is simply neither practical nor realistic.

Importance of early identification

Even when a client shares a culture and first language with their solicitor, other communication needs may not be apparent in a short, initial meeting, where pressing matters must be dealt with. A person may mask their needs, may lack insight into their difficulties, or may not feel sufficiently confident to disclose a condition likely to impact their participation.

But the importance of identifying any communication difficulties cannot be underestimated. Paragraph 3.4 of the Solicitors Regulation Authority Code of Conduct specifically requires solicitors to “take account of your client’s attributes, needs and circumstances”. The Law Society Guidance on “Meeting the Needs of Vulnerable Clients” provides some assistance to help solicitors identify and meet the needs of clients who may have difficulty using legal services.

This is supplemented by the Practice Note on “Meeting the needs of vulnerable clients” for Immigration Advice Authority-authorised advisers: “Whilst some factors [indicating vulnerability] might be obvious, such as the client not being able to speak the same language as the adviser, others will be less so. Advisers should not assume that their client will always tell them of any difficulties that they may have.”

In turn the courts have to have regard to the requirements of Paragraph 13 of the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal. This sets out:

“It may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other directed means, or to direct that a person be appointed as an intermediary, or where appropriate Litigation Friend. Where appropriate, the Tribunal may direct that questions asked of a witness must use plain English or contain only a single proposition in each question, and must ensure that the manner of questioning is otherwise subject to judicial control to ensure an appropriate tone. Breaks may be given where they are considered conducive by the judge to the giving of best evidence.”

Some may consider that this falls far short of the increasingly well-developed jurisprudence and procedures in the Criminal and Family courts governing the use of intermediaries and the importance of Ground Rules Hearings.

In Immigration cases, language barriers, cultural differences, mental health difficulties and other factors can all further complicate the picture.

The Equal Treatment Bench Book (chapter 8) highlights that cultural issues may impact individuals going through a tribunal process. These may include issues such as:

• lack of awareness around the complexities of the court system in England and Wales;
• mistrust of legal processes and professionals by people who have previously experienced
  ill treatment by analogous systems in other countries; and
• cultural factors, such as being reluctant to ask for help, or the concept of ‘saving face’,
  which can make it harder for a client to admit they have not understood.

Each of the above can make it more difficult for a legal practitioner to identify a communication need in their client. In a short preparatory meeting, particularly, how can one distinguish between what might be poor understanding of an unfamiliar process, or what is an underlying cognitive difficulty?

Understanding underdiagnosis

Various complex factors can lead to underdiagnosis of neurodivergent conditions among Immigration Tribunal users. A pertinent example is autism.

The actual interpretation of and identification of autistic traits may differ across cultures; for example, eye contact norms may differ, meaning that the reduced eye contact associated with the condition may be less perceptible. In some cultures, speech delays may not give rise to the same levels of concern seen in western cultures, and in certain countries, the stigma attached to autism may lead to parents not seeking a diagnosis for their child, or even, in extreme examples, concealing their existence. (See ‘A conceptual framework for understanding the cultural and contextual factors on autism across the globe’ and ‘Solace studies in therapeutic work with refugees and asylum seekers no. 2: Could refugees and asylum seekers be struggling with ADHD and ASD alongside trauma and loss’ for more details and further examples and research in this area.)

Practical barriers to diagnosis of a neurodevelopmental condition also exist, such as the cost of obtaining a diagnosis or the geographical availability of health services, as well as assessment tools not always being designed for people outside the ‘Cultural West’ or not accounting for the potential interplay of autism and concomitant mental health conditions.

In short, even though there may not be an identified diagnosis, it does not mean that a client won’t have additional communication needs, beyond a language barrier.

Lost in translation

Although interpretation is primarily about facilitating communication, it can also obscure an individual’s communication needs and further hinder early identification. This can happen for a variety of reasons:

• A different focus. Interpreters may not be trained in identifying communication needs or working with individuals who have them. While many interpreters are skilled communicators, they may not have an understanding of how different communication needs present, the impact of masking, or how to adapt communication for people with different needs.
  
  
• Filtered communication. The apparent understanding of a client is based on how the interpreter breaks down words and concepts which may not exist in the client’s first language, and how they convey the client’s understanding back to the legal advisor. This process can mask any difficulties the client may be experiencing.
  
  The interpreter also has a role in determining the amount of information they translate to the client. For example, an interpreter may unconsciously filter information they perceive as extraneous or attempt to simplify information if they think a client will struggle to understand. This may aid communication but may also mask difficulties. And if multiple interpreters are used, there is no guarantee that they will be equally as attuned or select the same strategy to help.
  
  
• Practical considerations. Practicalities relating to interpreters can further mask communication difficulties. Common examples include interpreters not being booked in advance, an interpreter speaking a different dialect from the client, and numerous different interpreters being involved in the case, which can negatively impact rapport, attunement and the working relationships with the individual’s legal team.

How does an intermediary assess communication needs across a language barrier?

If the individual does not speak English confidently, an intermediary assessment must be carried out with the assistance of an interpreter. Without this assistance, it will not be possible to explore to what extent any apparent communication difficulties relate to a language barrier, and/or to an underlying communication need.

An important aspect of intermediary assessments is that they are dynamic and functional. We are not looking to diagnose. Instead, we are looking at what the individual can do, what they have difficulty with, and what strategies or adaptations (if any) will mitigate those difficulties. This is one reason why interpreter assistance is crucial at this stage: if the individual will be assisted by an interpreter in court, we need to functionally appraise their communication through an interpreter.

Part of the assessment explores the individual’s self-reports about topics such as their education, whether they required any extra help at school (if they attended), whether they receive any support from friends or family with daily activities like managing money or reading correspondence, whether they are aware of any medical diagnoses they may have. However, this is not our sole source of information: family members can also provide valuable insight, and we also conduct a range of functional tasks.

Through informal tasks, we explore the support someone will need in order to effectively participate in a legal hearing. We appraise skills such as understanding legal language and common question structures used during evidence, seeking clarification when they haven’t understood, maintaining attention and processing long stretches of verbal information. We also explore understanding of figurative language in their first language, so that we can provide communication partner advice to interpreters at court if this type of language should be avoided as part of their translation process.

We adapt our assessments to reduce the impact of cultural differences and language barriers upon results. For example, by providing translated text to explore literacy in the individual’s first language, or by collaborating with interpreters to understand which commonly used ‘courtroom question structures’ do/do not translate directly in terms of syntax.

The resulting intermediary report provides a holistic evaluation of the appellant’s communication difficulties, records whether an intermediary will be required to ensure effective participation, and sets out any additional measures the Tribunal should consider to ensure the appellant can understand the thrust of proceedings, give their best evidence (if required), understand key legal advice and give clear instructions to their legal team.

How can solicitors support early identification?

Being cognisant of the likelihood that appellants could have identified or unidentified diagnoses or more broad speech, language and communication needs is vital.

If communication is carried out via an interpreter, it may not always be obvious that someone has not understood, so regularly checking a client’s comprehension is important. Some things that might suggest a client needs additional help include:

• not retaining information in a meeting or between meetings;
• providing answers not related to the question that has been asked;
• not providing logically sequenced narratives;
• giving short (‘yes’/‘no’) or vague responses, but being unable to expand upon or explain the reason for their decision;
• not being able to identify the key points within written documents in their first language; and
• back and forth discussions taking place between the individual and their interpreter before their response is relayed in English – this may indicate that the interpreter is needing to simplify or clarify before translating. 

Briefing and debriefing with the interpreter can also prove very helpful. Prior to your meeting, ask the interpreter to translate your speech and your client’s speech verbatim – including any moments of apparent confusion. This will help you identify communication breakdown, which may otherwise be masked through interpretation.

Discussing the points above with the interpreter following your meeting may also prove helpful. For example, ask whether your client needed them to repeat things, whether they needed to be reminded of key points, whether their answers were relevant to the question asked or whether their accounts of events were easy to follow.

Taken together, these measures can support earlier identification of communication needs in immigration matters – a vital first step towards improving the participation of Tribunal users.

If the need for intermediary assessment is identified, referrals can be made to HMCTS approved intermediaries and intermediary providers. Assessments will be funded by HMCTS. If the assessing intermediary identifies that your client requires the assistance of an intermediary to effectively participate in proceedings, an intermediary can then be booked, subject to Tribunal approval. Intermediary attendance at hearings is also funded through HMCTS.

At Communicourt, referrals and bookings can be made through an online portal. After making a referral, you will be supported to arrange funding by the Communicourt team. You can access further information and guidance on the Communicourt website, speak directly with the team at admin@communicourt.co.uk or via 0121 663 0931 (open Mon-Fri, 9am-4.45pm). If you have questions about any aspect of funding, referrals or bookings, please do get in touch.

Communicourt is an HMCTS approved provider of intermediaries in Courts and Tribunals across England and Wales. If you would like to learn more about communication needs and the intermediary role, please visit The Access Brief, Communicourt’s free library of bitesize guides developed for legal practitioners, covering everything from different hearing types to different diagnoses. Communicourt also offers free, accredited CPD sessions for legal professionals.

Please keep an eye on ILPA’s Training Calendar for Communicourt’s free sessions for ILPA members.

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.

Document Date

Thursday June 26, 2025