England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Immigration and Asylum Chamber
Mr C M G Ockelton, Vice President
Upper Tribunal Judge Perkins
Upper Tribunal Judge McKee
AA/09156/2007, [2010] UKUT 329 (IAC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/03/2012

Lord Justice Moses :

1. Identification of the language the claimant speaks or the way it is spoken may determine the claimant's nationality or tribal, clan or cultural origin. This may be of crucial importance to the assessment of risk of persecution in an asylum appeal. It was crucial in the instant case. The appellant claimed asylum on the basis that she was a member of the Bajuni minority clan from Koyama, an island in Somalia. If that was true, she risked persecution from the majority clan.
2. The Secretary of State relied on an analysis of the form of Kibajuni spoken by the appellant. It showed she came from Kenya. That analysis was made by Skandinavisk Språkanalys AB (SPRAKAB), a privately-owned company in Stockholm, Sweden. On an order for reconsideration by the High Court, the Upper Tribunal, presided over by the Vice-President, took the opportunity to consider challenges to the reliability of SPRAKAB reports. It accepted their value, and upheld the decision of the AIT dismissing the appellant's appeal. This appeal is concerned with the views expressed by the Upper Tribunal as to SPRAKAB's reports and methods, but permission was also given to consider its particular findings in relation to this appellant. The Upper Tribunal reached the conclusion that the appellant was not a Bajuni islander, in part on the basis of the way she spoke Kibajuni. For that reason, it rejected her appeal.
3. The Upper Tribunal considered three SPRAKAB reports containing analysis of a 30 minute recorded telephone interview which took place on 20 June 2007 when the appellant claimed asylum. The appellant had obtained an initial report from a Ms Kumbuka dated 20 September 2008 based on her own unrecorded interview with the appellant and a further report based on the recording and transcript of the telephone interview with SPRAKAB. There was a written response from SPRAKAB to Ms Kumbuka's two reports and a fourth SPRAKAB linguistic analysis report relating to a further interview with the appellant on 2 February 2010.
4. Once the Upper Tribunal had identified this case as appropriate for consideration of linguistic evidence based on the SPRAKAB approach, it heard evidence from Ms Fernqvist, the manager of SPRAKAB, who provided a report as to the experience and qualifications of the analysts and linguists who compiled the SPRAKAB reports and from a SPRAKAB analyst and two linguists who appeared anonymously. They were cross-examined.
5. SPRAKAB's work is linguistic analysis. It works for the immigration services of a number of governments including Canada, Sweden, 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.
6. 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.
7. 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.
8. 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 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 was disclosed and Ms Fernqvist was able to give evidence as to their qualifications.
9. 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.
10. The Upper Tribunal then gave general guidance in three respects. It said:-

"171. First, we note that it is said that the decision as to a person's background or origin should not be based solely on linguistic analysis. We have heard and seen nothing enabling us either to endorse or doubt that advice. But where there is clear, detailed and reasoned linguistic analysis leading to an opinion expressed in terms of certainty or near certainty it seems to us that little more will be required to justify a conclusion on whether an applicant or appellant has the history claimed.

172. Secondly, the conclusions we have reached about SPRAKAB's reports do not, of course, mean that SPRAKAB or any other linguistic analyst is infallible. A decision-maker or judge must be allied to the possibility of error, whether or not the particular level of certainty expressed by the report leads one to expect it. Where there is linguistic evidence in a particular case it is important that all parties have a proper opportunity to submit it for expert assessment and it is equally important that all the evidence be taken into account in deciding the questions in issue according to the appropriate standard of proof.

173. The parties must have an opportunity to challenge any linguistic assessment opposing them. That means a sound recording of any interview of or discussion with an appellant that forms the basis of such analysis must be made available to the other party in good time before any substantive appeal hearing…We would expect for the future that where linguistic analysis is in issue, no party should seek to rely on an analysis based on examples of the appellant's speech that all parties have not had the opportunity to analyse.

174. Thirdly, we have given our reasons above for acceding to SPRAKAB's request for anonymity for its linguists and analysts, subject to details being given of their background and qualifications. These reasons are of general applicability…unless there was some very good reason for departing from this practice."

11. The primary challenge to the approach of the Upper Tribunal rested upon the fact that reports such as the SPRAKAB reports in the instant appeal did not comply with the relevant Practice Direction. It was submitted that there were fundamental flaws which rendered the expert analysis of the appellant's speech worthless. Although the appellant and respondent did not refer to the same version of the Practice Directions there were no material differences. The relevant Practice Directions are those contained in Practice Direction 10 in the Practice Directions: Immigration and Asylum Chambers of the First- Tier Tribunal and the Upper Tribunal, in force from 15 February 2010. The relevant directions were:-

"10.1 a party who instructs an expert must provide clear and precise instructions to the expert, together with all relevant information concerning the nature of the appellant's case, including the appellant's immigration history, the reasons why the appellant's claim or application has been refused by the respondent and copies of any relevant previous reports prepared in respect of the appellant.

10.2 It is the duty of an expert to help the tribunal on matters within the expert's own expertise. This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.

10.3 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

10.4 An expert should assist the tribunal by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate.

10.5 An expert should consider all material facts, including those which might detract from his or her opinion.

10.6 An expert should make it clear:-

(a) when a question or issue falls outside his or her expertise; and

(b) when the expert is not able to reach a definite opinion, for example because of insufficient information.

10.7 If, after producing a report, an expert changes his or her view on any material matter, that change of view should be communicated to the parties without delay, and when appropriate to the Tribunal.

10.8 An expert's report should be addressed to the Tribunal and not to the party from whom the expert has received instructions.

10.9 An expert's report must:-

(a) give details of the expert's qualifications;

(b) give details of any literature or other material which the expert has relied on in making the report;

(c) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;

(d) make clear which of the facts stated in the report are within the expert's own knowledge;

(e) say who carried out any examination, measurement or other procedure which the expert has used for the report, give the qualifications of that person, and say whether or not the procedure has been carried out under the expert's supervision;

(f) where there is a range of opinion on the matters dealt with in the report:

(i) summarise the range of opinion, so far as reasonably practicable, and

(ii) give reasons for the expert's own opinion;

(g) contain a summary of the conclusions reached;

(h) if the expert is not able to give an opinion without qualification, state the qualification; and

(j) contain a statement that the expert understands his or her duty to the Tribunal, and has complied and will continue to comply with that duty.

10.10. An expert's report must be verified by a Statement of Truth as well as containing the statements required in paragraph 10.9(h) and (j).

12. Mr Davison contended that the various reports disclosed a number of breaches, in particular that no information was supplied regarding the instructions (10.1), since the analyst and linguists were anonymous and it was not possible to tell who had compiled particular aspects of the report, it was not possible to tell whether matters were outside their expertise (10.2), since during the course of the initial screening interview the view was expressed that the appellant was not an island Bajuni four days before the report was prepared and thus the expert must have been influenced by the pressures of litigation (10.4). The report was not addressed to the tribunal (10.8), no qualifications were provided nor details of literature relied upon, nor was there any attribution to a particular individual (10.9) and there was no statement of truth (10.10).
13. The Upper Tribunal rejected all these criticisms. The more recent SPRAKAB reports relied upon were not as defective as the appellant asserted in relation to the first report.
14. I too, like the Upper Tribunal, do not regard the criticisms as undermining the reliability of the reports. There was good reason for the anonymity and no basis advanced for thinking that disclosure of the names would have assisted the appellant in any respect whatever. In the light of the careful evidence given as to the process of analysis the appellant was not placed at a disadvantage by reason of the conclusion having been reached as a collective view. There will be expert evidence which requires identification of who among a number of experts discussing the conclusion reached a particular view. But Ms Fernqvist's evidence was such that it was perfectly fair, provided the process was patent, to give a collective conclusion. I would endorse the view of the Upper Tribunal that the fact that the reports do not comply with the Practice Directions relating to expert evidence is 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.
15. There was, however, one point as to which I disagree with the Upper Tribunal. The Tribunal pointed out that the reports are "typically prepared for a decision-maker and not for an appeal and so it is not appropriate to impose on them rules relating to evidence prepared specifically for use in litigation." Technically, at least the first report was prepared for a decision-maker and not for a tribunal. But nonetheless the Practice Directions relating to experts are of importance in safeguarding the subject of the report and in ensuring the integrity of the evidence. The mere fact that an initial report is obtained for the Secretary of State, for example, and not for a tribunal is no reason not to have well in mind the protection afforded by the Direction. For example, it remains of importance to know the nature of the instructions given to the expert and that the expert evidence should be an independent view uninfluenced by the source of the instructions or pressure of any sort. The expert is required to provide an objective, unbiased opinion on matters within the expert's expertise. An expert must not assume the role of an advocate. Such principles are vital whatever the circumstances in which the report was obtained.
16. But with that reservation I would endorse everything which fell from the Upper Tribunal. Both the First-Tier and the Upper Tribunal are peculiarly well placed to assess the quality of expert evidence and identify which forms and methods are most calculated to achieve a reliable and fair conclusion. The Upper Tribunal has a broad discretion with regard to the control of the evidence before it and has, within its case management powers, the power to waive non-compliance with a Practice Direction or, indeed, a Rule (Rules 5(1) and 7(2)(a) of the Tribunal Procedure (Upper Tribunal Rules 2008 as amended)). The Upper Tribunal's obligation is to ensure that any expert report represents a genuine, objective view by those qualified to express it with sufficient reasoning and clarity to enable it to be challenged and assessed. I would endorse the Tribunal's general guidance.

The Instant Appeal

17. The appellant claimed that she was born in Koyama, an island in Somalia, on 7 August 1975, and was a member of the Bajuni minority clan. The Bajuni were attacked by a majority clan of Somalis between 1991-1993. She was raped in 1991 and fled with her uncle and aunt to Jomvo refugee camp in Mombassa, Kenya. She married a Bajuni in 1996 and gave birth to a son in November 1997. In 1998 she returned to Koyama with her uncle, aunt, husband and son. There, attacks by majority clans continued and she was raped again in 2004, in consequence of which her husband left her with her son. By 2007 the attacks had become so bad that her uncle arranged for her to leave for Yemen and from there to the United Kingdom. The Upper Tribunal reached the conclusion that the appellant did not come from Somalia and was not a Bajuni. It upheld the conclusion of SPRAKAB's report that whilst she knew "quite a bit about the Bajuni Islands" she spoke a variety of Swahili spoken in Kenya. Kibajuni words she did use were typical of a Kenyan Swahili. The Upper Tribunal's decision was based on the reports from SPRAKAB. It rejected the conclusion of Ms Kumbuka that the appellant was a Somali Bajuni from Koyama.
18. Subsequent to the hearing a Landinfo report on the Bajuni Islands, translated by SPRAKAB, was produced and the parties made written submissions on it. In addition, three reports were submitted by Professor D Nurse which criticised SPRAKAB's approach and conclusions.
19. The conclusion of the Upper Tribunal was based not merely on SPRAKAB's findings but on other aspects of the claim. The appellant claimed to have secreted sufficient gold to finance her trip to the United Kingdom and to have been given a sheepskin coat. The tribunal found those facts incongruous. They attached weight to the fact that she could only give sketchy details of her clan history. The reason she gave at interview for that lack of knowledge was that her grandfather had died but she subsequently said that that was a mis-translation. The Landinfo report contained a history of depopulation of the Bajuni Islands to which the appellant had made no reference.
20. The Trinunal made detailed comments upon her deficiencies in linguistic knowledge in relation to certain words. The appellant was interviewed in Kibajuni, a form of Swahili. As Mr Davison pointed out, she was able to speak in that language during the course of some ten hours of evidence, including the Home Office interview and two appeal hearings. But as the Upper Tribunal commented, the question was how well she understood that language and the way she spoke it. The Tribunal accepted SPRAKAB's evidence on those points.
21. The detailed challenge to these factual findings rested again upon the fact that the interview was conducted in Kibajuni and that was the language used at the hearings. But that is no basis for a challenge in law. The Upper Tribunal dealt with the point in its reasons and its reasoning discloses no error of law whatever.
22. The decision was criticised on the basis that the appellant had adequately demonstrated a good knowledge of the customs and geography of the Bajuni and the islands. But such comments are mere reiterations of argument as to fact. Finally it was said that the reasons were inadequate. They were far from inadequate and demonstrated that the Upper Tribunal had not merely relied upon the SPRAKAB reports but on all the evidence and, in particular, the account given by the appellant herself. Had this appeal not raised general questions about the extent to which reliance can be placed upon SPRAKAB's report, no appealable issue would have arisen. There is nothing in the particular conclusions of the tribunal in relation to the instant case which discloses any legal error. I would dismiss the appeal.

Mr Justice Briggs:

23. I agree.

Lord Justice Rix:

24. I also agree.