NADINE AHMED ALI (AP) FOR JUDICIAL REVIEW OF A DECISION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 115A
P61/12
OPINION OF LORD PHILIP
In the Petition
NADINE AHMED ALI (AP)
Petitioner;
for Judicial Review of a decision of the Secretary of State for the Home Department
Petitioner: Byrne; Drummond Miller LLP
Respondent: McIlvride QC; Office of the Advocate General
28 August 2015
[1] The petitioner seeks reduction of a decision of the Secretary of State for the Home Department dated 10 February 2011 refusing to accept representations made on her behalf as a fresh claim for asylum. The representations were made under Rule 353 of the Immigration Rules which provides:
“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
[2] The petitioner claims to be a citizen of Somalia from the Island of Koyama and a member of the Bajuni Clan. She claims to have left Koyama in March 2008 and to have travelled to Yemen by boat where she boarded a flight to the United Kingdom. She arrived in the United Kingdom on 12 March 2008 and claimed asylum on that day. Her claim was refused and she appealed the decision. Her appeal was dismissed by an immigration judge on 18 August 2008. She then sought an order for reconsideration. After reconsideration her appeal was again dismissed on 10 March 2009. She requested permission to appeal that decision but that request was refused. Subsequently permission was sought to appeal to the Court of Session but leave was refused on 17 February 2010. The petitioner then became appeal rights exhausted after March 2010. Further representations were rejected by the Secretary of State in a letter dated 10 September 2010.
[3] This petition relates to a subsequent request to the Secretary of State to reconsider the decision of 10 September 2010 and to accept further representations as a fresh claim for asylum. In the decision letter of 10 February 2011 the Secretary of State refused to find that the further representations amounted to a fresh claim on the basis that there would be no realistic prospect of an immigration judge, applying the rule of anxious scrutiny, finding that the petitioner would be exposed to a real risk of persecution, article 2 right to life or article 3 ill treatment, even taking into account the petitioner’s further representations.
[4] In the petitioner’s claim for asylum the crucial issue is whether her account of her place of origin is truthful. It is central to her claim that she comes from the island of Koyama in Somalia, and it was accepted on behalf of the Secretary of State that if she is indeed a citizen of Somalia from Koyama and a member of the Bajuni Clan she would be entitled to refugee protection in the United Kingdom.
[5] In resisting the petitioner’s claim, the Secretary of State relied on linguistic analysis reports provided by a Swedish commercial organisation called Sprakab, whose operations and methodology were the subject of detailed consideration by the United Kingdom Supreme Court in MN v Secretary of State for the Home Department [2014] UKSC 30. In that case, the Supreme Court reviewed guidance given by the Upper Tribunal in RB (Somalia) v Secretary of State for the Home Department [2012] ECWA Civ 277 and [2010] UKUT 329, in relation to Sprakab reports and the way in which immigration judges should approach them.
[6] In the present case, the analysis was based on a recorded telephone interview lasting 25 minutes, on the day of her arrival in the UK, between the petitioner and an anonymous employee of Sprakab in Sweden, who was said to originate from Kenya, and was described as a language analyst, expert in the petitioner’s language. During the interview the petitioner was asked questions in Swahili about her claimed place and clan of origin. The conclusion of the report was that the petitioner spoke a variety of Swahili found “with certainty in: Kenya”, and “with certainty not in: Somalia.”
[7] In the analysis section of the report it was said that the petitioner spoke Swahili to the level of a mother tongue speaker, but not a variety of Swahili spoken by the Bajuni people. In relation to her knowledge of Somali country and culture she was said to be vaguely familiar with Koyama Island and Somalia, but the author of the report opined that it sounded as if her knowledge could be rehearsed. Under the heading of “Specific Findings”, the author said,
“It sounds as if the person is trying to disguise her speech in order to sound like a Bajuni-speaker… However, it does not sound natural since she speaks Kenyan Swahili the rest of the time”
and,
“It sounds as if the person is trying to disguise her speech, since she uses certain words typical of a variety of Swahili spoken by the Bajuni people. However, it sounds as if these words could be rehearsed, since she does not pronounce the words in a natural manner.”
[8] The further representations which were rejected by the Secretary of State on 10 February 2011 were as follows:
(i) Comments by Brian Allen dated 26 November 2010 in response to the Secretary of State’s previous decision letter dated 10 September 2010.
(ii) Personal profile/CV of Brian Allen.
(iii) Copy of The Researcher, Vol 5, Issue 3, November 2010.
(iv) Expert report of Brian Allen dated 4 June 2010.
(v) Summary of concerns about Sprakab nationality tests for Bajuni asylum applicants from Somalia, by Brian Allen, dated 28 November 2008.
(vi) Overview of Sprakab telephone interviews of Bajuni refugee claimants by Professor D Nurse, February 2010.
(vii) Statement of Brian Allen regarding report minority groups in Somalia, joint British, Danish and Dutch fact‑finding mission to Nairobi 17 to 24 September 2000, November 2004, updated January 2009.
(viii) “Sources”, CV and personal profile of Brian Allen.
(ix) Overview of Sprakab telephone interviews of Bajuni refugee claimants 2004 to 2010, Professor D Nurse February 2010.
Items iii, iv, vii and ix had previously been submitted. The remaining documents had not been previously considered. The reports of Brian Allen provided evidence supporting the petitioner’s claim on the basis of her language and her knowledge of country and culture. They also provided evidence criticising language tests as a means of establishing nationality. He has given evidence in a number of asylum appeals in the period since 2002. Prior to that he worked as a missionary in education and social development in East Africa for a total of 20 years between 1968 and 2002
[9] I do not think it is necessary to set out the terms of the decision letter in full. Its contents can be adequately summarised as follows:
The letter states that the petitioner’s further representations were considered in the light of the previous findings of the immigration judge in relation to the petitioner’s credibility, which, it was said, another immigration judge, applying the rule of anxious scrutiny would take into account. The judge’s adverse findings on the petitioner’s credibility are then set out at some length, including the finding that the petitioner had deliberately attempted to mislead the respondent as to her language skills. The immigration judge’s emphatic rejection of the petitioner’s evidence is also referred to.
[10] The letter then turns to criticise Mr Allen’s capacity to give evidence on country and culture on the ground that he had not been to the Bajuni Islands, a factor which, it is said, another immigration judge would take into account. Reference is also made to his assertion in his evidence that many immigration judges had accepted his reports in other cases. That is countered by quotations from two cases in which his evidence does not appear to have been relied on.
[11] The letter then goes on to counter Mr Allen’s criticisms of language tests as a means of determining nationality by asserting that the petitioner’s claim was not determined solely by the Sprakab test. It is said that the immigration judge considered the reports which supported the petitioner’s case as well as the Sprakab report, treating them both with caution, and ultimately preferring the Sprakeb report, apparently on the basis that the analyst was a trained linguist and originated from Kenya. The case, it is said, was not determined solely on the basis of the petitioner’s linguistic skills. All the evidence and information provided was considered in the round. The letter concludes:
“For the reasons given above, the fact your client’s credibility has been fundamentally undermined, the fact the Immigration Judge did not accept that there was a history of past persecution in Somalia, the fact she found your client to be from Kenya and the fact the Immigration Judge found your client would not be at real risk on return, the documents you have submitted have therefore been considered in conjunction with the comprehensive credibility findings made by the Immigration Judge. Therefore it is not considered that there would be a realistic prospect of an Immigration Judge, applying the rule of anxious scrutiny, finding that your client would be exposed to a real risk of persecution, Article 2 right to life or Article 3 ill treatment due to the production of these documents.”
[12] Mr Byrne, for the petitioner, submitted that the hurdle which the petitioner had to surmount in order to establish a fresh claim was a low one. She required to satisfy the court only that her representations had more than a fanciful prospect of satisfying an immigration judge that there was a real risk of persecution on her return to Somalia, (AK (Sri Lanka) [2009] EWCA Civ 447; WM (DRC) v SSHD [2006] EWCA Civ 1495). The requirement for anxious scrutiny meant that no material factor that could conceivably be regarded as favourable to her case could be left out of account, (Kishor Dangol Petitioner 2010 CSIH 20). The margin of appreciation allowed to the Secretary of State was small since she was acting as judge in her own cause, and the case was potentially concerned with matters of life and death, (TR (Sri Lanka) [2008] EWCA Civ 1549).
[13] The Secretary of State had misdirected herself in respect that she had relied on opinions expressed in the Sprakab report in relation to the petitioner’s knowledge of country and culture which were not supported by any demonstrated expertise on the part of the author. The report contained no evidence of expertise in Somali country and culture. The fact that the author was said to have come from Kenya was not evidence of expertise.
[14] The assessment of the petitioner’s credibility was a major factor in the decision of the immigration judge on whose findings the Secretary of State clearly relied. The author of the Sprakab report expressed the view that the petitioner’s answers during the interview “sounded rehearsed”, and that she was trying to disguise her speech. In doing so he went beyond the proper role of an independent expert witness and engaged in advocacy. Such comments were not severable from the rest of the contents of the report and the Secretary of State had clearly relied on them. In doing so she had erred in law.
[15] It had recently been established that, unknown to the petitioner, a recording of the Sprakab interview was in existence. A copy had not been made available to her at an earlier stage and she had therefore been denied the opportunity and the materials to challenge the Sprakab report. No party should be able to rely on linguistic analysis unless all parties have had the opportunity to analyse any interview on which an analysis is based, (see MN, paragraphs 44 and 51(ii)(c)). For the Secretary of State to determine the petitioner’s claim without the petitioner having had an opportunity to challenge the analysis in this way amounted to unfairness and an error of law.
[16] Finally, Mr Byrne submitted that the expert reports of Brian Allen had not been addressed by the Secretary of State with anxious scrutiny. They were not intrinsically incredible. The Secretary of State had failed to show why they should not be given weight and had failed to apply her mind to their effect on the mind of an immigration judge. In her decision she had made no reference to item (v) on the list of further representations, which had not been previously considered and which contained coherent criticisms of Sprakab reports which were later accepted by the Supreme Court in MN.
[17] On behalf of the respondent, Mr McIlvride QC submitted that the effect of the decision in MN was that Sprakab reports could not be successfully attacked solely on the basis of the methodology used. The Supreme Court had held that Sprakab had demonstrated sufficient expertise to enable them to carry out linguistic testing and to provide evidence on it. In this case, the part of the report which demonstrated the expertise of the author was not available, but the petitioner had not previously challenged the lack of evidence of expertise. I understood the implication to be that any challenge now came too late.
[18] In relation to the fact that no recording of the interview had been made available to the petitioner, Mr McIlvride said that no point had previously been made on her behalf in relation to its absence. She had never instructed a linguistic expert and so the availability of the recording was not necessary for the proper presentation of her case. Again the implication was that the point came too late and could not now be raised.
[19] In relation to the opinions expressed in the Sprakab report to the effect that the answers given the petitioner at interview sounded “rehearsed”, Mr McIlvride accepted that these things should not have been said, but submitted that it was clear that the immigration judge had placed no reliance on those statements. The only part of the Sprakab report which she had relied on was the passage in which it was reported that the petitioner only spoke about the island in general terms and did not give detailed information. That passage was clearly not material to the decision. Sprakab were not offering any opinion outside their expertise. The immigration judge had viewed the Sprakab report and the reports submitted on behalf of the appellant with equal caution.
[20] The evidence of Mr Allen could not be relied upon because he had strayed out of his field of expertise into advocacy. He purported to give expert evidence on the petitioner’s knowledge of the local area when he had never been there, and he purported to analyse the use of language when he had no training in linguistics. Accordingly he had no expertise upon which to base his evidence. He provided no sources, references or independent evidence to vouch for his views on these matters.
Discussion
[21] The case of MN was decided after the decision with which this petition is concerned. Nevertheless the issues dealt with in the judgment of the Supreme Court and in the Inner House are relevant to the determination of this case. I am concerned with a decision relating to the prospects of success before an immigration judge in the future. Accordingly, in determining whether the Secretary of State has acted unreasonably or fallen into an error of law, I am bound to have regard to the judgment of the Supreme Court and in particular to the guidance on how Immigration Judges should approach Sprakab reports.
[22] I deal firstly with the failure to provide the petitioner with a copy of the recording of the Sprakab interview. At paragraph 32 of the judgment Lord Carnwath said
“similar considerations (i.e. the requirement for fairness and anxious scrutiny) in my view impose special responsibility on the Secretary of State and those representing her to ensure that the evidence presented to the tribunal is adequately supported. So in this case Lord Eassie rejected the suggestion that it was enough for the Secretary of State to provide the interview tapes to the appellants, leaving them to obtain their own expert advice. He said (paragraph 66):
‘As a matter of principle, it is the Secretary of State who invokes the purported expert evidence for her purposes in order to impune the honesty of the appellant in accordance with all normal rules of procedure it must therefore be for her to establish, by active demonstration of the appropriate expert qualification, the worth of the evidence upon which she relies to counter the testimony of the appellant.’”
For the Secretary of State senior counsel, as I understood him, did not challenge this statement of principle. In my view, he was right not to do so. At paragraph 44, Lord Carnwath said of the guidance provided by the Upper Tribunal in RB (Somalia)
“it was right to emphasise that Sprakab were not infallible, that tribunal judges must be alive to the possibility of error, and that parties must be provided with the opportunity and materials necessary to enable them to challenge their (Sprakab’s) evidence.”
Later, at paragraph 51(ii), his Lordship said that the requirement to make a recording available to any expert instructed for the claimant was not only sensible but essential.
[23] The Supreme Court clearly considered the provision of a copy of the recording of the interview as a minimal requirement of fairness to enable the claimant to challenge the methods and the conclusion of the Sprakab report. In the present case the Secretary of State, like the immigration judge before her, did not apply her mind to the question of the ability of the petitioner to challenge the findings of the report or to the provision of material to enable her to do so. This was a significant omission, in the context of the requirement for anxious scrutiny, which denied the immigration judge and the Secretary of State the ability to examine the Sprakab report critically in the light of all the evidence and of the reasoning supporting its conclusion (see MN paragraph 46). That in my view constituted a sufficient departure from fairness as to amount to an error of law.
[24] Mr McIlvride submitted that the petitioner’s argument should not be given effect to because she had not previously questioned the absence of a recording. I do not consider that that is a sufficient answer. As is pointed out at paragraph 46 of the Supreme Court’s judgment, anxious scrutiny requires a tribunal not to limit its consideration to criticisms of a report put forward by an appellant. It would be inconsistent with that requirement for a tribunal to place weight on an appellant’s failure to challenge a failure on the part of the Secretary of State to provide a recording.
[25] The petitioner argued that there was a lack of evidence of expertise on the part of the Sprakab reporter in relation to the country and culture from which the petitioner claims to come. Lord Carnwarth’s criticism of the Upper Tribunal in RB (Somalia) at paragraph 46 of MN is again relevant here. There he criticises the tribunal for underplaying the importance in any case of the tribunal itself examining Sprakab reports critically in the light of all the evidence, and all the reasoning supporting their conclusions. He then goes on to criticise the tribunal for appearing to give special weight to reports expressed in terms of certainty or near certainty. As he put it “what matters is not the confidence with which (conclusions) are expressed, but the strength of the reasoning and expertise used to support them.”
[26] Lord Carnwarth then goes on at paragraph 51(i) to say that he sees no reason in principle why Sprakab should not be able to report both on language as evidence of place of risk origin and familiarity with claimed place of origin “provided, in both cases their expertise is properly demonstrated and their reasoning adequately explained.”(my emphasis). Subsequently at paragraph 51(iii) he says
“as to (b), familiarity: (a) the report needs to explain the source and nature of the knowledge of the analyst on which the comments are based, and identify the error or lack of expected knowledge found in the interview material; (b) Sprakab reporters should limit themselves to identifying such lack of knowledge, rather than offering opinions on the general question of whether the claimant speaks convincingly, it is not the function of an expert in language use to offer an opinion on general credibility.”
[27] In MN it was accepted on behalf of the Secretary of State that such expertise was lacking. The same lack is apparent in the present case. There was no evidence of the reporter’s source of knowledge of Somali country and culture. A statement that the reporter came from Kenya is not in my view sufficient to fill the gap. Indeed little attempt was made by counsel for the Secretary of State to argue that the Sprakab reporter did have the requisite expertise. He contented himself with arguing that that evidence was not relied on by the immigration judge or the Secretary of State. Like the Supreme Court in MN, I am unable to treat this aspect of the report as severable from the rest. It formed an intrinsic part of Sprakab’s overall assessment and was relied upon both by the immigration judge and by the Secretary of State in the decision under review. In these circumstances it appears to me that the Secretary of State did not apply her mind to the question whether the Sprakab reporter had the necessary expertise to pronounce on questions of country and culture and in failing to do so in my opinion she misdirected herself.
[28] Mr Byrne criticised the Sprakab reporter for engaging in advocacy rather than confining himself to independent expert evidence. It is clear that the reporter did engage in advocacy in the same way as the reporter in MN was held to have done. The form of words used by the reporters in both cases was almost identical. The question then arises as to whether the Secretary of State failed to have regard to this aspect. As Mr McIlvride pointed out, the petitioner’s expert Mr Allen himself engaged in advocacy. The immigration judge said at paragraph 23 of her decision that both the Sprakab test and the report commissioned by the representative for the appellant had to be viewed with some caution. That comment was referred to by the Secretary of State in the decision under review. In these circumstances it seems to me that it can be said that the immigration judge was alive to the question of advocacy and was not swayed by it. Accordingly in my view in relying on that part of the immigration judge’s decision I do not consider that it can be said that the Secretary of State made an error of law.
[29] Mr Byrne’s final argument was that the expert reports of Brian Allen had not been addressed by the Secretary of State with anxious scrutiny. In my view there is sufficient reference to Mr Allen’s report in the Secretary of State’s decision letter to indicate that all aspects of his reports had been considered. A point could perhaps have been made that the following passage from paragraph 12 of the decision under review might indicate that the Secretary of State had failed to assess the further representations which did not emanate from the petitioner herself independently of the immigration judge’s adverse view of the petitioner’s credibility, see WM (DRC) 2006 EWCA Civ 1495 at para 6. The passage read:
“Your client’s further representations have been considered in light of the previous findings of the immigration judge with regards to your client’s credibility, a matter another immigration judge, applying the rule of anxious scrutiny would take into account.”
The point was not however made and I express no opinion on it.
[30] In the result I consider that the arguments advanced by Mr Byrne in relation to the failure to provide a copy of the recording of the interview and the lack of evidence of expertise of the Sprakab reporter to offer opinions on the petitioner’s knowledge of country and culture are well‑founded and disclose errors of law. Those errors amounted to material unfairness. The question then arises whether these errors require the Secretary of State’s decision to be reduced. Can it be said that had these matters been properly taken into account there would be a realistic prospect of success before an immigration judge? In my view the opinions expressed in MN require immigration judges to adopt a markedly different approach to cases involving Sprakab reports from that endorsed by the guidance in RB (Somalia). The Upper Tribunal in RB almost went as far as discouraging anxious scrutiny of such reports, while the need for critical examination in the light of all the evidence and the reasoning supporting their conclusions was emphasised by Lord Carnwath at para 46. In this case the possibility cannot be ruled out that the provision of a recording, coupled with recognition of the lack of evidence of the reporter’s expertise in country and culture might give rise to evidence which would produce a different conclusion on credibility from that arrived at by the immigration judge, strongly adverse though that conclusion was. Given the low hurdle which the petitioner has to surmount I conclude that there is more than a fanciful prospect of the petitioner satisfying an immigration judge that there is a real risk of persecution if the petitioner is returned to Somalia. I shall therefore grant decree of reduction.