Secretary of State for Home Department v MN and KY (Scotland) [2014] UKSC 30

Two Somali asylum seekers claimed persecution risk in Somalia, but the Home Secretary relied on Sprakab linguistic reports linking their speech to Kenya. The Supreme Court dismissed the Home Secretary's appeals, criticising over-reliance on Sprakab's 'knowledge of country' assessments and the Upper Tribunal's prescriptive guidance in RB.

Facts

The respondents, MN and KY, each claimed asylum in the United Kingdom on the basis that they were nationals of Somalia from the Benadiri clan (Reer Hamar sub-clan) originating from Mogadishu, and were therefore at risk of persecution. The Secretary of State rejected both claims, relying substantially on ‘linguistic analysis reports’ prepared by Sprakab (Skandinavisk Språkanalys AB), a Swedish commercial organisation. The Sprakab reports concluded with certainty that the respondents did not speak a variety of Somali found in Somalia and did speak a variety found in Kenya. The reports were prepared by analysts and a linguist identified only by codes, not by name, and included assessments both of linguistic features and of the respondents’ ‘knowledge of country and culture’.

The Asylum and Immigration Tribunal (AIT) dismissed both appeals, relying heavily on the Sprakab reports. On appeal to the Upper Tribunal (UTIAC), the appeals were dismissed by the same Senior Immigration Judge (Macleman), who considered himself effectively bound by the guidance recently given by a three-judge panel of the Upper Tribunal in RB (Somalia) [2010] UKUT 329 (IAC), which had endorsed the use of Sprakab reports. The Inner House of the Court of Session (by majority) allowed both appeals, criticising the form of the reports and reliance placed upon them.

Issues

The Supreme Court identified five agreed issues: (i) whether the immigration judges were entitled to attribute weight to the Sprakab reports; (ii) the circumstances in which witnesses in such appeals should be granted anonymity; (iii) whether particular rules governed expert evidence tendered in the name of an organisation rather than an individual; (iv) the extent to which such evidence could be accepted in a form not prescribed by the Practice Directions; and (v) the extent and effect of Upper Tribunal guidance on the weight to be given to such reports.

Arguments

For the Secretary of State, Mr Lindsay QC contended that there was no objection in principle to the admission of the Sprakab reports and that the Upper Tribunal in RB had been entitled to give general guidance on their use, including permitting anonymity for analysts. He conceded that the ‘knowledge of country and culture’ element of the reports was not supported by demonstrated expertise but argued that this defect did not undermine the linguistic analyses or the immigration judges’ overall conclusions.

The respondents contended that the Sprakab reports were unreliable, that anonymity of expert witnesses departed from the fundamental principle that a party is entitled to know the identity of witnesses against them, and that the immigration judges had improperly treated the guidance in RB as effectively binding, precluding proper scrutiny of the reports in their individual cases.

Judgment

Lord Carnwath, delivering the judgment with which the other Justices agreed, dismissed the appeals.

General approach and admissibility

The Court emphasised the special features of tribunals, including flexibility, avoidance of unnecessary formality, and use of specialist expertise. Rule 51(1) of the AIT rules and rule 15(2) of the Upper Tribunal rules permit evidence otherwise inadmissible in court; the focus is on relevance and weight rather than admissibility. The Upper Tribunal in RB had been entitled to select a suitable case to give general guidance on a matter of common occurrence. There was no objection in principle to Sprakab reports being admitted merely because they were in the name of an organisation rather than a named individual, or because they did not strictly comply with the Practice Directions.

Anonymity

Although openness is the norm and anonymity for expert witnesses requires special justification, the Court held that this was not anonymous evidence in the ordinary sense: the organisation was identified, its methods known, and the qualifications of contributors disclosed by reference to identifier codes. Subject to appropriate safeguards, the Upper Tribunal in RB had been entitled to permit anonymity.

Concerns about the RB guidance

Lord Carnwath expressed concerns about two aspects of the RB guidance. First, the suggestion that where linguistic analysis was expressed ‘in terms of certainty or near certainty’ little more would be required to justify a conclusion risked prejudging matters properly for individual tribunals and understated the need for critical scrutiny. What matters is not the confidence with which conclusions are expressed but the strength of the reasoning and expertise supporting them. Secondly, the guidance on anonymity was unduly prescriptive; the issue must depend on the circumstances of each case. Lord Carnwath suggested pointers for updated guidance, including that Sprakab could in principle report on both language and familiarity with claimed origin provided expertise was demonstrated, that the basis for geographical attribution of dialects should be better explained, that recordings must be made available to claimants’ experts, and that reporters should limit themselves to identifying lack of knowledge rather than offering opinions on general credibility.

Disposal of the appeals

The appeals were dismissed on two grounds. First, on the ‘knowledge of country and culture’ issue, it was conceded that the Sprakab analysts had stepped outside their proper field of expertise. Lord Carnwath agreed with Lord Eassie that this was ‘nothing more than an expression of a view on credibility, which is outwith any expert witness’ function’. The observation in KY’s report that her knowledge ‘sounds rehearsed for the occasion’ read as that of an advocate rather than an independent expert. This defect was not severable from the immigration judges’ reasoning in either case.

Secondly, the Senior Immigration Judge had wrongly treated the guidance in RB as binding, precluding proper analysis of the specific criticisms raised in each case. This was no substitute for critical analysis of the particular reports and reasoning of the first-instance tribunal. There were also significant factual differences from RB, including that the dialect in issue (Reer Hamar) was different, and there were serious questions about the basis on which Sprakab analysts allocated the appellants’ speech to a particular geographical area.

Implications

The decision confirms that specialist tribunals may adopt flexible approaches to expert evidence, including receiving reports in the name of organisations and, in appropriate circumstances, permitting anonymity of individual contributors where their safety may be at risk and adequate safeguards exist. Sprakab reports are not inadmissible in principle, but must be subject to proper critical scrutiny in each case.

The judgment cautions strongly against Upper Tribunal guidance being treated as effectively binding or as pre-empting the fact-finding role of first-instance tribunals. Guidance may be persuasive on procedural or general matters, but each case must be decided on its own facts and evidence, and the tribunal must engage with specific criticisms raised. The judgment also underlines that expert witnesses must confine themselves to their field of expertise and must not act as advocates; opinions on general credibility fall outside the proper role of a linguistic expert.

The decision matters to asylum practitioners, the Home Office, and tribunals dealing with linguistic evidence, and prompts a review of the RB guidance. It also reinforces the special responsibility of the Secretary of State to establish the reliability of expert evidence she relies upon to impugn an appellant’s account, and the need for ‘anxious scrutiny’ in asylum cases, balanced against avoiding undue credulity.

Verdict: The Supreme Court dismissed the Secretary of State’s appeals. MN’s case was remitted to the Upper Tribunal for reconsideration; KY’s appeal was allowed simpliciter without remission.

Source: Secretary of State for Home Department v MN and KY (Scotland) [2014] UKSC 30