UK - Scottish Court of Session, M.AB.N. & Anor v The Advocate General for Scotland Representing The Secretary of State for the Home Department & Anor, [2013] CSIH 68

Facts:

Both applicants stated that they were Somali, and members of the ethnic minority group Benadiri.  The UK authorities disputed their ethnicity and refused their claims for asylum. They appealed to the Tribunal, and their appeals were refused at least in part on the basis of language reports prepared by SPRAKAB which asserted the applicants were not in fact Somali. In the case of the first applicant, the SPRAKAB report was material to the adverse credibility findings. In the case of the second applicant, the SPRAKAB report was the sole reason for finding her not to be credible.

Decision & reasoning:

The Court held that the SPRAKAB reports were deficient in numerous respects. It was accepted by the advocate for the State that the sections in the reports entitled “knowledge of country and culture" were outside the claimed field of expertise of the report writers (linguistics) and should have been disregarded by the decision-maker. The Court endorsed this concession, stating that the comments in the reports that the applicants had "deficient" knowledge of their home areas was clearly outside the claimed expertise of the report writers and were without any expert foundation. Comments on credibility and demeanour were similarly inappropriate, as they would be in any expert report – this is the domain of the judicial body, not an expert witness.

The Court noted in strong terms that being a native speaker of a language does not confer expertise in the identification of dialects within that language, their particular features, or the geographical or social distribution of the dialect.  There was no evidence that the analysts in the SPRAKAB reports had any such expertise.

There is a need for any expert report respecting the dialect employed in a sample of speech from an individual to provide an adequate account of the qualifications and expertise of its author or authors; the essential expert or scientific knowledge basis upon which the expert or experts proceed; and the methodology upon which their views proceed.

In so far as the Upper Tribunal had sought in RB (Linguistic Analysis - Sprakab) Somalia [2010] UKUT 329 (upheld by the English Court of Appeal – see below) to give to any report providing linguistic analysis ab ante approval as having very considerable evidential weight, its doing so was not a proper exercise of its power to depart from the ordinary rules of evidence.

Outcome:

Appeals allowed

Subsequent proceedings:

The UK authorities have appealed to the UK Supreme Court and a hearing is awaited

Observations/comments:

In this case the Scottish Court of Session reaches a different view to the Court of Appeal of England and Wales in RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277.  The Scottish Court considers that the facts and argument before it were different, entitling it to depart from the Court of Appeal’s view.  The Scottish Court states that if it is wrong about this, it still considers that it must reach a different view as it received very full and much wider ranging submissions than the Court of Appeal, in an area that is new, and not the subject of settled judicial opinion, as yet.

Other sources:

Rule 45(4)(i) of the Asylum and Immigration Tribunal Procedure Rules

Rule 8A.9(c), 8A.9(e), 8A(1), 8A.8, 8A.2, 8A.4, 8A.9(j), 8A.11 of the Practice Directions

Guidelines for the Use of Language Analysis in Relation to Questions of National Origin in Refugee Cases, June 2004, Language and National Origin Group, an international group of linguists.