M.ab.n.+k.a.s.y. V. The Advocate General For Scotland Representing The Secretary Of State For The Home Department+the Advocate General For Scotland Representing The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Eassie,Lord Marnoch |
| Neutral Citation | [2013] CSIH 68 |
| Court | Court of Session |
| Published date | 12 July 2013 |
| Year | 2013 |
| Date | 12 July 2013 |
| Docket Number | XA24/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Menzies Lord Marnoch | [2013] CSIH 68 XA24/11 & XA36/11 OPINION OF LORD EASSIE in the appeals by (1) M. AB. N. Appellant; against THE ADVOCATE GENERAL FOR SCOTLAND representing the SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: (2) K. A. S. Y. Appellant; against THE ADVOCATE GENERAL FOR SCOTLAND representing the SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______________ |
Appellant: Bovey QC, Byrne; Drummond Miller LLP (For McAuley McCarthy & Co, Glasgow) (First Appellant)
Appellant: Howlin QC, Bryce; Drummond Miller LLP (for Peter G Farrell, Glasgow) (Second Appellant)
Respondent: McIlvride; Solicitor to the Office of the Advocate General
12 July 2013
Introductory
[1] Each of these two appeals is brought with leave from this court under section 13 of the Tribunals, Courts and Enforcement Act 2007 from decisions of the Upper Tribunal (Asylum and Immigration Chamber). The Advocate General is convened as representing the Secretary of State for the Home Department. While the appeals are distinct, they were argued together since they involve the common feature that before the tribunal hearing at first instance and before the Upper Tribunal the Secretary of State for the Home Department relied upon the content of reports sent to the Home Office respecting each of the appellants respectively. The two reports were issued by a Swedish commercial company - Skandinavisk Språkanalys AB - based on a relatively brief telephone conversation between each of the appellants and an unnamed individual engaged by that company in Sweden. Each report is described as being a linguistic analysis. The central and common feature of each of the appeals is the evidential standing of those reports.
[2] While to that important extent the appeals have that common feature, it is necessary to describe, at least in summary, the circumstances of each appellant individually.
[3] In the first appeal, that of M. Ab. N., the appellant entered the United Kingdom on 16 August 2009 and claimed asylum. His claim was rejected by the Secretary of State and he appealed to the Asylum and Immigration Tribunal. The appellant said that he was a national of Somalia and at the appeal hearing before an immigration judge he gave evidence that he was born in Mogadishu and belonged ethnically to a minority clan in Somalia, namely "clan Benadiri, sub clan Reer Hamar, and sub-clan Shanshi" (paragraph 13 of the immigration judge's decision). The appellant gave a history of events detailing persecution by militia from other clans and from members of Al-Shabaab, which, for the purposes of this appeal, it is unnecessary to rehearse in any detail. The immigration judge held that the view of the Home Secretary that this appellant was not a Somali national from Mogadishu was well founded. That view was, at least in part, based upon the report provided by the Swedish company. Although criticisms of that report were advanced on behalf of the appellant to the immigration judge, those were rejected by the judge. Counsel for the appellant M. Ab. N. accepted that there were aspects of the case other than the Swedish company's report - to which counsel for all parties were content to refer as the "Sprakab" report - which might be seen as impinging upon the credibility of this appellant's account. But it is evident from the judgment of the immigration judge in the Asylum and Immigration Tribunal that the Sprakab report played a material part in his decision that the appellant's account of being a Somali from Somalia was not to be believed.
[4] The appellant in the second appeal, K. A. S. Y., arrived in the United Kingdom on 30 November 2008 and claimed asylum on the following day. She identified herself as a citizen of Somalia, born in February 1988 in Mogadishu, and as being ethnically of the Benadiri clan grouping, her sub clan being Ashraaf. When aged approximately three years she moved to Mahaday, Jowhar where she lived with an uncle. She had no schooling. On her claim for asylum being refused by the Secretary of State on 6 January 2009 she appealed to the Asylum and Immigration Tribunal and her appeal was heard by an immigration judge on 19 October 2010. She gave an account of the extensive problems which she and her family had encountered by way of persecution at the hands of various militias. Details of that account of persecution are set out in the decision of the immigration judge, which was promulgated on 20 February 2009. Again, it is unnecessary for the purposes of the issues raised in this appeal to rehearse those matters in any detail. Importantly, it was not in dispute that if her account were credible the appellant deserved international protection. Subject to what the immigration judge described as a "slight question mark" respecting an answer, in its interpreted form, to a question posed also in an interpreted form, that the currency in Somalia was "Somali money", rather than the giving of the particular name of that currency, which she plainly knew when that matter was being explored before the immigration judge, the immigration judge otherwise found the account given by the appellant to be entirely credible but for the Sprakab report. Before the immigration judge that report was the subject of various criticisms which heralded the criticisms advanced before us and at all intermediate stages in the appeal process. The immigration judge nonetheless concluded on the basis of the Sprakab report respecting this appellant that she was not from southern Somalia; and that as a consequence her otherwise credible account fell to be dismissed as a fabrication. The issue of the admissibility or evidential status of the Sprakab report therefore arises perhaps more sharply or clamantly in the appeal by the appellant in the second of the two appeals.
The Sprakab reports
[5] It is appropriate at this point to give some description of the Sprakab reports in question in these two appeals. Both are similar in their general format, possibly following a template devised by the Swedish company. Since the report respecting the appellant in the second appeal - K. A. S. Y. - precedes in time that of the report respecting the first appellant it is perhaps convenient to describe it first.
[6] It may be noted that the document opens with a note in the first person singular containing inter alia a statement to the effect that the reporter is an expert employed by "Scandinavian Language Analysis". After a centred heading in upper case "linguistic analysis report" and a statement that language analysis "..involves the assessment of regional and local linguistic traits within phonetics, morphology syntax and vocabulary.." one finds a box, or field, within which the document states that the person [the subject of the report] speaks:
"...a variety of Somali found
[x] with certainty not in: Somalia.
[x] with certainty in: Kenya."
There then follows a statement to the effect that the basis for that expression of view is a recording of a telephone conversation of 18 minutes' duration on the same date as that upon which the report bears to have been supplied to the Home Office. The next section or field headed "Description of language(s) used" simply refers to one language, namely "Somali" (that is to say, without reference to any dialect or form of Somali used by the interviewer). The following two boxes or fields refer to the nature of the analysis but I do not think that the details in those fields usefully call for repetition.
[7] Thereafter under the general, centred heading "Analysis" one finds the subhead "General comments" and the following text in the box or field relating to that subhead:
"The person, who is a woman, speaks Somali on the recording. She speaks the language to the level of a mother tongue speaker. First she says she was born and raised in Mahaddaay in the Shabeellada-Dhexe province and that she also has lived in Jowhar in the same province. Later she states that she was born in Mogadishu in southern Somalia. The person does not speak a variety of Somali found in Somalia. She speaks a variety of Somali found with certainty in Kenya.
The person is asked about what dialect she speaks on the recording. She says that she speaks the Reer-Hamar dialect. However, it can be ascertained that she does not speak the Reer-Hamar dialect.
The person has deficient knowledge and deficient local knowledge of the area she says she is from. Her knowledge sounds rehearsed for the occasion since she does not give any detailed descriptions of the area she says she is from."
There then follow under the subheading "Specific findings", bearing throughout to be in accordance with the IPA system of transcription, some remarks respecting the interviewee's speech by reference to phonological characteristics, morphology and syntax, and lexicon and colloquialisms, exposition of which I do not see as being useful.
[8] Thereafter one finds a box or field headed "Knowledge of 'country and culture' of the person" which contains this text:
"The person first says that she was born and raised in Mahaddaay in the Shabeellada-Dhexe province, in southern Somalia. After a while she changes her mind and says that she was born in Mogadishu. She also says that she moved to Jowhar in the Shabeellada-Dhexe province. The person has deficient knowledge and deficient local knowledge of the area she says she is from. Her knowledge sounds rehearsed for the occasion since she does not give any detailed descriptions of the area she says she is from. She often hesitates and gives short answers on the questions she is asked.
She states that she has no knowledge of Mogadishu or Jowhar.
The person speaks a little about Mahaddaay and the population in the area. She states that she belongs to the Ashraaf clan which inhabit various areas in southern Somalia."
One then finds a section headed "Summary of findings...
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