Secretary of State for Home Department (Appellant) v MN and KY (Respondents) (Scotland)

Cite as:[2014] UKSC 30
Hand-down Date:May 22, 2014
 
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Easter Term [2014] UKSC 30 On appeal from: [2013] CSIH 68

JUDGMENT

Secretary of State for Home Department (Appellant) v MN and KY (Respondents) (Scotland) before

Lord Neuberger, President Lord Clarke

Lord Carnwath Lord Hughes Lord Hodge JUDGMENT GIVEN ON 21 May 2014 Heard on 5 and 6 March 2014 Respondent (MN) Mungo Bovey QC Dan Byrne Appellant

Mark Lindsay QC Rhoderick McIlvride (Instructed by Office of the Advocate General) (Instructed by Drummond Miller LLP; McAuley,

McCarthy and Co) Respondent (KY) Michael Howlin QC Joe Bryce (Instructed by Drummond

Miller LLP; Peter G Farrell Solicitors) LORD CARNWATH (with whom Lord Neuberger, Lord Clarke, Lord Hughes and Lord Hodge agree)

Introduction

  1. A crucial issue in many asylum appeals is whether the claimant's account of his or her provenance is truthful. So in the present cases it was central to each of the respondents' claims that they came from a particular region of Somalia, where they were at risk of persecution. In each case, in dismissing those claims, the Secretary of State relied on linguistic analysis to the effect that their mode of speaking was linked to Kenya not Somalia. That evidence came in the form of "linguistic analysis reports" provided by a Swedish commercial organisation called "Sprakab" (more fully, Skandinavisk Språkanalys AB). Those decisions were upheld on appeal to the Upper Tribunal, but reversed by the Inner House which made a number of criticisms of the form of the reports and the reliance placed on them by the tribunal.

  2. In February 2010, following the original tribunal hearings in the present cases but before the appeals, a special three-judge panel of the Upper Tribunal (presided over by Judge Ockelton, Vice President) heard another case raising similar issues, and gave guidance on the use of such reports in the future. Their judgment, dated 15 September 2010 ([2010] UKUT 329 (IAC)), reviewed detailed evidence on Sprakab's operations and methodology, including oral evidence from their manager, Ms Fernquist. In the light of that consideration, they endorsed the use of the Sprakab reports, subject to certain safeguards. Their approach was generally supported by the Court of Appeal (RB (Somalia) v Secretary of State for Home Department [2012] EWCA Civ 277 ("RB")). Those decisions, at both levels, were in turn considered by the Inner House in the present case. Accordingly, although we are directly concerned only with the two appeals before us, it is appropriate for us to look at them also in the context of the wider discussion of the issues in RB.

    Sprakab's operation

  3. For a general indication of Sprakab's operation and methods of work it is convenient to quote the description given by Moses LJ (who gave the only substantive judgment) in RB, which takes account of the more detailed evidence given before the Upper Tribunal in that case and their findings on it:

    "5. Sprakab's work is linguistic analysis. It works for the immigration services of a number of governments including Canada, Sweden,

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    Australia, the Netherlands and the United Kingdom. Since 2000 it has conducted over 40,000 linguistic analyses. The Upper Tribunal was given only one example of an individual seeking analysis from Sprakab. The company employs linguists with university qualifications and members of the relevant international association. They are subject to regular evaluation. It also employs a pool of analysts who, generally, speak the language they are asked to analyse and are taught to think critically and analytically.

  4. Linguistic analysis at Sprakab is a two-stage process. First, the analyst listens to a recorded specimen of speech, typically an interview. The analyst notes features of the speech which appear to be of interest. Second, the analyst discusses those features with a linguist. The analyst and linguist decide whether the features are diagnostic of the speaker's origin and produce a report with four grades of likelihood: certainty (one way or the other), most likely, likely and possibly. The rationale for identification of the degree of certainty or otherwise is usually explained in the report. The analysts are given extensive training by the linguists so as to look for certain distinctive features of any particular language or dialect. The manager, Ms Fernqvist, agreed that linguistic analysis could not determine a nationality, although it is of assistance. Interviews would usually last some 20 to 30 minutes and the recording would be discussed by analyst and linguist before a draft report was produced.

  5. Sprakab carry out around 4,000 analyses per year and Ms Fernqvist was of the opinion that it supported applicants in about 60% of the cases in which they were involved. Certainly, it supported applicants more often than it rejected their claims. Sprakab has developed a database of recordings which, though not available for peer review, was, she believed, accurate.

  6. Sprakab's policy is not to make the names or personal details of its analysts or linguists public. It fears that their safety may be endangered if it is known that they are producing analyses for governmental authorities. But each member of staff is given a unique identifier and the language background training and other relevant experience associated with that identifier. Thus the qualifications and background of a particular analyst [or] linguist are disclosed and it is also possible to see whether the same or different analysts were involved. Those who reported in the instant case were identified only by letter and number. The tribunal was provided with the names of the witnesses but they were not disclosed to the appellant or her legal team. The number of those involved in the analysis in the instant case

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    was disclosed and Ms Fernqvist was able to give evidence as to their qualifications.

  7. The Upper Tribunal made the following findings and conclusion. It accepted that Sprakab was a bona fide organisation which has devised and refined a system for analysing language requiring interaction between several employees. That process minimises the opportunities for the incompetence of one to lead to a false result. The tribunal accepted that anonymity could theoretically have an adverse impact on reliability. But the fact that no one person's opinion is decisive and that those opinions are reasoned, explained, and can be checked and criticised, reduces the risk of an incompetent or corrupt employee. The tribunal rejected the suggestion that Sprakab was not independent. The Upper Tribunal noted that Sprakab did not claim to be infallible."

    The present appeals

    Procedural changes

  8. To understand the course of the present appeals, it is necessary to be aware of the changes which took place in February 2010 in the arrangements for hearing asylum appeals.

  9. At the time of the original appeals in both cases, the relevant appellate body was the Asylum and Immigration Tribunal ("the AIT"). This was a single-tier appellate body, albeit with provision for reconsideration to be ordered where a possible error of law was identified by a senior tribunal judge or the relevant court. Procedure was governed by the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) ("the AIT rules"). Although a new tribunal system (including a First-tier and Upper Tribunal) had been brought into operation in November 2008 under the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), the AIT continued for the time-being unchanged as a separate body.

  10. As from 15 February 2010, the first-instance jurisdiction of the AIT was transferred to the new Immigration and Asylum Chamber of the First-tier Tribunal ("the FTTIAC"). At the same time there was established a right of appeal, with permission, to the Immigration Appeal Chamber of the Upper Tribunal ("the UTIAC"). There were transitional provisions to deal with pending cases. In the FTTIAC, the AIT rules continued to have effect subject to appropriate amendments to take account of the new two-tier system. In the UTIAC, procedure was governed by the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) ("the Upper

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    Tribunal rules"), which applied generally across the various chambers at that level, but subject again to appropriate amendments to take account of the new jurisdiction. At the same time a new set of Practice Directions, applying to the new immigration and asylum chambers at both levels, was issued in the name of the Senior President. They followed without material alteration (for present purposes, at least) the form of Practice Directions issued by the President of the former AIT.

  11. It is worth adding that, although the present appeals were heard in Glasgow, and found their way on appeal in due course to the Court of Session, the jurisdictions of the former AIT and the new IAC Chambers were and are UK-wide. It is accepted that there is and should be no material difference between the principles applicable on either side of the border.

    MN's appeal

  12. The first appellant, MN, entered the United Kingdom on 16 August 2009 and claimed asylum. His claim was rejected by the Secretary of State and, on 5 February 2010, by the AIT (IJ McGavin). The appellant said that he was a national of Somalia and that he was born in Mogadishu and belonged ethnically to a minority clan in Somalia, namely "clan Benadiri, sub-clan Reer Hamar, and sub-sub-clan Shanshi" (AIT decision para 13). In rejecting the claim to asylum, the immigration judge, like the Secretary of State, relied on a Sprakab report, which identified his speech as being from Kenya rather than Somalia.

  13. He appealed to the UTIAC, on grounds which included criticisms of the Sprakab reports. The appeal was heard in December 2010 (SIJ Macleman), following the promulgation of the decision and guidance in RB. Permission to appeal to the Court of Session was given by the court itself...

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