RB (Somalia) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Briggs,Lord Justice Rix |
| Judgment Date | 13 March 2012 |
| Neutral Citation | [2012] EWCA Civ 277 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2011/0662 |
| Date | 13 March 2012 |
[2012] EWCA Civ 277
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
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Moses
and
Mr Justice Briggs
Case No: C5/2011/0662
Mr G Davison (instructed by Corbin & Hassan) for the Appellant
Mr R Palmer and Mr O Draper (instructed by The Treasury Solicitors) for the Respondent
Hearing date: 26 th January, 2012
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.
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.
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.
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.
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.
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.
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.
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.
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 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...
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