Immigration

Appeal - Evidence - Use of linguistic analysis reports

RB (Somalia) v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lords Justice Rix, Moses and Mr Justice Briggs): 13 March 2012

The appellant was from Koyama, an island in Somalia, and was a member of the minority Bajuni clan. A family member made arrangements for her to travel to the UK where she claimed asylum, contending that she had been subjected to repeated attacks by the majority Somali clan. In refusing her application, the respondent secretary of state relied upon an analysis of the form of Kibajuni spoken by the appellant which showed that she was from Kenya.

That analysis had been prepared by a privately-owned company based in Sweden (Sprakab) which specialised in linguistic analysis and worked for the immigration services of a number of governments. The Asylum and Immigration Tribunal dismissed the appellant's appeal. On an order for reconsideration made by the High Court, the Upper Tribunal (Immigration and Asylum Chamber) (the Upper Tribunal) took the opportunity to consider challenges to the reliability of Sprakab reports.

Oral evidence was given by a manager of Sprakab, which included the reasons why their analysts/linguists were anonymous. The Upper Tribunal accepted the value of the Sprakab reports and upheld the dismissal of the appellant's appeal. The Upper Tribunal reached the conclusion that the appellant was not a Bajuni islander, in part, on the basis of the way in which she spoke Kibajuni. In reaching that conclusion, the Upper Tribunal considered three Sprakab reports which contained analyses of a 30 minute recorded telephone interview with the appellant which had taken place when she claimed asylum.

The appellant provided an initial linguistic analysis report prepared by K based on her own, unrecorded, interview with the appellant and a further report based on the recording and transcript of the interview conducted by Sprakab. There was also a written response from Sprakab to K's reports and a fourth linguistic analysis report relating to a further interview with the appellant. The Upper Tribunal, in considering the appropriateness of linguistic evidence based on the Sprakab approach, made a number of findings of fact regarding Sprakab.

It then gave general guidance on the importance to be attached to Sprakab reports which included, inter alia: (i) that a decision as to a person's background or origin should not be based solely on linguistic analysis, but where there was clear, detailed and reasoned linguistic analysis that led to an opinion expressed in terms of certainty or near certainty, then little more would be required to justify a conclusion on whether an applicant had the history claimed; (ii) Sprakab was not infallible and so a decision maker or judge had to be allied to the possibility of error and all parties should have an opportunity to submit linguistic evidence for expert assessment and all evidence should be taken into account in deciding the questions in issue according to the appropriate standard of proof; and (iii) the reasons for anonymity of Sprakab's linguists/analysts were of general applicability unless there were good reasons for departing from that practice (see [10] of the judgment).

It further noted that such reports were typically prepared for a decision maker and not for an appeal and so it was not appropriate to impose on them rules relating to evidence prepared specifically for use in litigation. The appellant was granted permission to appeal. She submitted that: (i) reports, such as the Sprakab report, did not comply with practice direction 10 of the Practice Directions: Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal (for relevant provisions see [11] of the judgment); and (ii) the Upper Tribunal had erred in rejecting her contention that she was a Somali Bajuni from Koyama. The appeal would be dismissed.

(1) The fact that the Sprakab reports did not comply with the practice directions relating to expert evidence was not of itself a reason to give such reports less weight. The validity of the reports derived from the characteristics and methods of the organisation rather than the particular individuals. Nonetheless, the practice directions that related to experts were of importance in safeguarding the subject of the report and in ensuring the integrity of the evidence. The mere fact that an initial report was obtained for the secretary of state, for example, and not for a tribunal was no reason not to have well in mind the protection afforded by the practice direction (see [14], [15] of the judgment).

In the instant case, there had been good reason for the anonymity of the analysts/linguists and there was no basis for thinking that disclosure of their names would have assisted the appellant in any respect. The appellant had not been disadvantaged by reason of the conclusion of her language analysis having been reached as a collective view (see [14] of the judgment).

The general guidance of the Upper Tribunal would be endorsed, other than in respect of its comment that the rules imposed on evidence prepared for litigation should not be applied where the report had originally been prepared for a decision maker, in which regard the instant court had made its own findings (see [15], [16], [23], [24] of the judgment).

(2) In the instant case, the Upper Tribunal had not erred in dismissing the appellant's appeal and its reasons had not been inadequate (see [21]-[24] of the judgment).

Guy Davison (instructed by Corbin & Hassan) for the appellant; Robert Palmer and Owain Draper (instructed by the Treasury Solicitor) for the secretary of state.