Tribunal decisions

The decision

ASYLUM AND IMMIGRATION TRIBUNAL
SJ (Knowledge of Kirundi) Burundi [2005] UKAIT 00134

THE IMMIGRATION ACTS

Heard at: Field House
On 22 September 2005
Determination Promulgated
3rd October 2005
………………………………………

Before

Mr G Warr, Senior Immigration Judge
Mr T B Davey
Mrs A J F Cross de Chavannes

Between

Appellant
And
Secretary of State for the Home Department

Respondent

Representation:

For the appellant: Mr A O'Ryan of Counsel instructed by Parker Rhodes Solicitors.
For the respondent: Mr M Raj.

This case deals with the question of the extent to which knowledge of the Kirundi language may be of relevance in determining Burundian nationality in the light of a letter from the British Embassy on the issue.

DETERMINATION AND REASONS

1. The appellant claims to be a citizen of Burundi. On 8 September 2004, an Adjudicator, Mr R D Crawford, dismissed her appeal against the decision of the Secretary of State to refuse her application for asylum. An application for permission to appeal was launched on 27 September 2004. That application for permission was granted on 11 January 2005 by the Immigration Appeal Tribunal. By virtue of the transitional provisions we are directed to reconsider the decision of the Adjudicator upon the grounds on which permission to appeal was granted.

2. The appellant claims to be of Hutu ethnicity. She claims to fear persecution at the hands of the Burundian Government because of her ethnicity, and her association with her husband who, it is said, is suspected of assisting Hutu rebel groups. She also claims to be a member of a particular social group, namely women in Burundi. She had been attacked, she claimed, and raped by Tutsis on various occasions. Her father and other members of her family had been killed. The final occasion was on 6 April 2004 when Tutsis had attacked the appellant's house. She had been raped. Her husband, who had managed to escape, subsequently returned, and arranged for an agent to take the appellant and her children out of the country. She claims to have arrived in the United Kingdom on 22 April 2004. She applied for asylum on the following day.

3. Mr O'Ryan represented the appellant at the hearing before the Adjudicator He placed reliance on a letter from the British Embassy dated 14 July 2004 and submitted that in the light of that letter the Tribunal decision of AR [2004] UKIAT 00225 was incorrectly decided. The Adjudicator dealt with this submission and with the facts of the case in the closing part of his determination as follows:

"28 The IAT Determination in 2004 UKIAT 00225 considered the case of an asylum seeker who maintained that she was from Burundi, but could not speak Kirundi. The Tribunal reviewed the evidence in the CIPU. In the light of the objective evidence before the Tribunal, which clearly stated that Kirundi is the official language of Burundi, which is spoken by all Burundians, the Tribunal found that the Appellant's inability to speak or understand Burundi meant that she was not a national of Burundi. That appellant had lived and worked for 7 years in Burundi. The Tribunal found it to be incredible that in these circumstances, she would not be able to speak Kirundi. I have carefully considered the letter from the British Embassy in Kigali dated 14 July 2004. Mr O'Ryan argues that 2004 UKIAT 00225 has been incorrectly decided in the light of that letter. In my judgment, the following points from the letter are significant;

(i) Kirundi is the national language of Burundi and is spoken by native Burundians throughout the country;

(ii) The Burundian school curriculum is taught in Kirundi until at least the fourth year in primary school. It is therefore reasonable to expect every Burundian child who attends school to understand and speak basic Kirundi;

(iii) Most citizens of Buyenzi, where the appellant says she was born, speak Kirundi;

(iv) Kirundi is taught at secondary school level throughout Burundi;

(v) It is conceivable that some Burundians might not be fluent Kirundi speakers;

(vi) A Burundian whose first language is Swahili should be able to understand Kirundi;

(vii) Swahili is the primary language within Buyenzi;

(viii) Swahili is still used in markets in Bujumbura.

29. I now assess what the appellant says about her time in Burundi. She has lived there for all of her life. She attended school from 1982 to 1986 (paragraph 3 of statement). She played with the children of neighbours, who spoke Kirundi (oral evidence). She went to Koranic school where she said Kirundi was spoken. She attended Koranic school with the same children of neighbours whom she played with in the street. Having carefully reviewed the objective evidence, and considered Mr O'Ryan's submissions, I find that if the appellant has lived her whole life in Burundi, she would have acquired a good working knowledge of the national language from various sources. These sources would be speaking to children in the street, being taught in Kirundi during four years at primary school, being taught in Kirundi at Koranic school and general acquisition of the language during normal life over many years, even in an area where Swahili might have been the predominant language. In my judgment, the appellant's failure to speak Kirundi as distinct from having some understanding of that language, severely affects her credibility. The appellant did display some knowledge of some places in Burundi, pointed out by Mr O'Ryan in his submissions. I have noted this. I have also noted that she knew the Burundian President, and the National Independence Day. However, in my judgment, her overall knowledge of the geography of Burundi is not of a standard which I would expect from someone who has spent her whole life in Burundi. I recognise that the appellant says that she comes form a strict Muslim background and the low standard of proof applicable in an asylum case. Nonetheless, I conclude that the appellant is not from Burundi.

30. It follows from my conclusion that the appellant is not from Burundi that the events that she has described as taking place in Burundi did not take place. I do not accept that various members of her family were killed by Tutsis nor do I accept that the appellant was raped by Tutsis on the various occasions she has described. If the appellant had suffered as she has described from 1994, in my judgment she would have left Burundi earlier. She married in 1997. Her husband was a fish trader. I do not accept that she would have remained in Burundi after being raped in 1996, beaten up in December 2003, threatened by Tutsis through her husband in 2002 and raped again in April 2004. The money for the appellant and her children to leave Burundi was raised, according to the appellant, by selling their house deeds. This could have been done at any stage after the appellant married her husband in 1997.

31. I do not accept the appellant's account that with two children she passed through United Kingdom immigration on a passport which was fake and did not contain her photograph – see A3 1.321. In my judgement, when she was accompanied by two children, her passport would have been scrutinised to check the inclusion of the children on the passport.

32. If the appellant was from Burundi and suffered in the way she has described, I find that she could have taken refuge in Tanzania. The objective evidence shows that Tanzania has taken hundreds of thousands of Burundian refugees."

33. I do not accept the appellant's evidence that she was taught in Swahili at school. The objective evidence (page 12, appellant's bundle) records the Burundian school curriculum being taught in Kirundi. I do not accept that a lifelong resident of Burundi, who went to two different schools there and mixed with other children, would not speak Kirundi.

34. It follows from my findings herein that the appellant cannot have a well-founded fear of return to Burundi for any reason that engages the United Nations Convention. In any event, it is not intended to return her to Burundi. The respondent will make father enquiries into her background and serve fresh removal directions if they are deemed to be appropriate. Because I find the appellant is not Burundian, it also follows that her human rights under Articles 2 and 3 would not be breached by returning her to Burundi."

4. In the grounds of appeal Counsel acknowledged that the Adjudicator had fairly summarised the Embassy letter save that, it was submitted, in sub-paragraph 28(vi) the Adjudicator should have added that some Burundians might not be fluent speakers. In the light of this letter the Tribunal decision of AR was wrongly decided. The Adjudicator's finding was either irrational or he had failed properly to take into account the British Embassy letter. There was a reasonable degree of likelihood, therefore, that the appellant could not be a fluent Kirundi speaker and still be a Burundian national. In the alternative the Adjudicator had erred in failing to distinguish the case of AR where the Tribunal had found it relevant that the appellant could not speak or even understand Kirundi while in the instant appeal the appellant had always maintained that she understood Kirundi.

5. Counsel acknowledged that this part of the grounds of appeal was the more important of the grounds. For the sake of completeness, however, we should mention grounds 2 and 3. In ground 2 the Adjudicator, it was said, erred in giving inadequate weight to the many questions on the geography of Burundi which the appellant had answered correctly and had failed to set out what further knowledge the appellant should have displayed. In ground 3 the Adjudicator had been irrational to conclude that it was not plausible that the appellant would have remained in Burundi until 2004 if she had experienced the problems complained of. The determination had been inadequately reasoned on this point.

6. In his submissions Counsel referred us to the decision of the Court of Appeal in AR [2005] EWCA Civ 407. In this case the Court of Appeal had overturned the decision of the Tribunal in AR. This had happened after the date of the Adjudicator's decision. Counsel submitted that the Adjudicator had erred in relying on the case of AR. Furthermore, the appellant had stated at interview (see Question 20) that she could understand the Burundian language but she did not use it. Reference was made to the Embassy letter. Question 4 posed in the Embassy letter, "Would someone living within Buyenzi whose primary language spoken at home is Swahili, also be able to generally speak Kirundi?" is answered as follows:

"A Swahili-speaker born of Burundian parents should be able to understand Kirundi, even though differences in accent and tone can be found in Buyenzi. It is conceivable that some Burundians might not be fluent Kirundi speakers."

7. The Tribunal suggested to Counsel that the answer to Question 4 was or could be "yes". Counsel submitted that the answer to Question 4 was not a clear "yes". Persons in such a position should be able to understand Kirundi. This is what the appellant had said she could do at interview. This was to be contrasted with the case of AR where the appellant could neither speak nor understand Kirundi. It was accepted, however, that the facts in the instant appeal differed from the facts in the case of AR because the Embassy letter had not been available in that case. While the strongest ground was ground 1 Counsel made brief submissions in support of grounds 2 and 3. At the conclusion of his submissions we did not trouble Mr Raj and reserved our determination.

8. We have carefully considered all the material before us. It is first necessary to determine whether the Adjudicator's determination was flawed by any material error of law. Counsel submitted that the Adjudicator had erred in relying on the Tribunal case of AR. In principle he relied on his submission made before the Adjudicator that the case of AR was wrongly decided in the light of the Embassy letter. He acknowledges that the Embassy letter was for the most part correctly summarised by the Adjudicator. It appears to us that the Adjudicator considered all the material before him including the Tribunal decision of AR. He gave full and satisfactory weight to the Embassy letter. We have already set out paragraph 4 of the Embassy letter which the Adjudicator briefly summarises at paragraph 28(v). Paragraph 5 of the Embassy letter reads as follows:

"Would someone who is born in Burundi but whose first language is Swahili also be fluent in spoken Kirundi?

[Answer] "A Burundian whose first language is Swahili should be able to understand Kirundi, although some might not be fluent speakers. Burundians who grew up outside Burundi may not be fluent Kirundi speakers."

9. We see no evidence that the Adjudicator misconstrued the Embassy letter. It appears to us that he took it fully on board and fairly summarised it. The Adjudicator also considered other relevant matters and was not in our judgment wrong to conclude that the appellant's failure to speak Kirundi "as distinct from someone having some understanding of that language, severely affects her credibility." We do not see that the Adjudicator's findings are inconsistent with the Embassy letter. The Adjudicator gave full weight to the question of the appellant's geographical knowledge. His approach was both fair and balanced. The Adjudicator for example reminded himself that the appellant claimed to come from a strict Muslim background and he further noted the low standard of proof applicable in asylum appeals – see the penultimate sentence of paragraph 29. We remind ourselves that the Tribunal can only interfere with the Adjudicator's decision if it was wrong in law – if it was perverse, for example. In the case of AR the appellant could not even understand the language and Counsel accordingly draws our attention to the difference in the instant case. It was submitted by counsel in the Court of Appeal on behalf of AR (see paragraph 17 of the judgment of the Court of Appeal), that the statement in the Home Office Country Information Report "that all Burundians know Kirundi does not seem to be vouchsafed by any primary source that has been identified." Lord Justice Laws commented "In my judgment, the Adjudicator's conclusions on the language and nationality issue, as I may call it, though possibly surprising, cannot be categorised as perverse."

10. Lord Justice Auld, at paragraph 25 of the judgment, stated,

"On the main issue, whether the Adjudicator erred or arguably erred in law in concluding that it did not follow from the fact that the appellant spoke only Swahili that she was not a Burundian, his decision on the evidence before him might seem surprising to some. But that does not necessarily make it perverse so as to amount to an error of law entitling the Immigration Appeal Tribunal to intervene. Nor, given the incompletely sourced objective evidence before the Adjudicator, the uncertainty of the application of such evidence to the circumstances of the appellant and her otherwise entirely credible account, the Tribunal should not have concluded, as it did, implicitly, that the Adjudicator's decision was perverse."

11. In this case, of course, it is for the appellant to show that the Adjudicator's decision was perverse. We have to say we do not see that it could be categorised as perverse in any way. The Adjudicator reminded himself that the appellant had lived in Burundi all her life and had attended school between 1982 and 1986 and had played with the children of neighbours who spoke Kirundi. She had gone to Koranic school where Kirundi was spoken. She had attended that school with the children of neighbours with whom she played in the street. The Adjudicator was amply entitled to conclude that the appellant would have acquired a good working knowledge of the national language from various sources as he states in paragraph 29 of the determination. The Adjudicator balanced his findings with other factors in favour of the appellant such as her knowledge of geography and so on. It is not demonstrated that he failed to have regard to any material factor or misdirected himself. We do not find that the Adjudicator erred in concluding that the events relied on had not taken place in the light of the fact that the appellant was not from Burundi as she claimed and that there was an implausibility in her remaining in Burundi after the events described by her. The account of departure was not accepted – see paragraph 31. There was the possibility of refuge being taken in Tanzania had she suffered in the manner complained of – see paragraph 32. A further reference to the language issue appears in paragraph 33.

12. We reject Counsel's submissions about the Adjudicator's approach to the evidence criticised in grounds 2 and 3 of the grounds of appeal. Even if the Adjudicator's reasoning might appear "surprising to some" as was stated by the Court of Appeal, that does not indicate that it was wrong in law. Counsel submits that the Adjudicator gave manifestly inadequate weight to the positive aspects of the case – the appellant's knowledge of geography, for example. We find no evidence that the Adjudicator erred in failing to give appropriate weight to all matters. Questions of what weight is to be given to any particular part of the evidence were a matter for the Adjudicator to resolve. We see no evidence of any error of law in his approach.

13. We do not consider that the Adjudicator's reference to AR indicates an error of law in his approach in the circumstances of this case. He took into account all the evidence before him, including the letter from the British Embassy, as we have stated. He was entitled to draw the conclusions which he did from the evidence before him. As we see no evidence of any error of law this is not an appropriate case to give country guidance. However, insofar as the Embassy letter is relied on to undermine the Tribunal’s decision in AR, we are not with Counsel in the inference he seeks to draw from it. It should be noted that this letter was relied upon and introduced in evidence by the appellant, not by the respondent. The letter supports the proposition that Burundians speak Kirundi albeit with varying degrees of fluency and that it is not the first language for some. It does not support the proposition that persons claiming to be Burundians who speak no Kirundi are Burundian. It may be that the conclusions of the Tribunal in AR were expressed somewhat too baldly in the light of the evidence before it. The Tribunal found that the appellant’s inability to speak or even understand Kirundi meant that she was not a national of Kirundi. Given the material before us, we would suggest the evidence about the language issue is tested against the following propositions:

(a) while some Burundians may be more comfortable speaking Kirundi than others, the inability to speak Kirundi at all is not an irrelevant factor.
(b) fluency in Kirundi is not to be expected of all Burundians.
(c) where an appellant’s ability to speak and understand Kirundi is limited or non existent it is open to a fact finder to consider this in the light of the evidence as a whole when deciding whether an appellant is Burundian.
(d) where nationality is disputed, inability to speak Kirundi may, in appropriate cases, make it more difficult for an appellant to establish his case to the required standard.

14. The Adjudicator's decision contains no material error of law. We direct that the decision of the Adjudicator shall stand.

G Warr
Senior Immigration Judge
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