Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03465/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 26th July 2016
On 16th August 2016

Before

upper tribunal JUDGE MACLEMAN

Between

A N
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr K Forrest, Advocate; Berlow Rehman, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant gives her date of birth as 27th March 1980 and claims to be a national of Somalia, originally from the Bajuni Islands.
2. The First-tier Tribunal made an anonymity order. Although there appears to be no particular need for anonymisation, the matter was not addressed in the Upper Tribunal. I have retained anonymity in this decision.
3. The respondent refused the appellant's asylum claim on 11th February 2015. First-tier Tribunal Judge Malik dismissed her appeal by a decision promulgated on 10th August 2015.
4. The question was whether the appellant is a Bajuni from Somalia. The languages she speaks, and two reports, one by Sprakab, the other by Professor Nurse, formed part of the analysis.
5. The appellant sought permission to appeal to the Upper Tribunal. The principal points in her grounds are that the judge became "transfixed" on the issue of language, and on Kibajuni being a dialect of Kiswahali, and did not refer to the case law.
6. A First-tier Tribunal Judge refused permission to appeal, on the view that the grounds were no more than a lengthy disagreement with a decision which had carefully analysed all the information available, and had not focused solely on the language issue.
7. The application was renewed to the Upper Tribunal, on grounds which Mr Forrest said were substantially the same.
8. An Upper Tribunal Judge granted permission, considering it arguable that the FtT failed to consider the apparently cogent explanation offered by the appellant and by Professor Nurse for the appellant not speaking Kibajuni, focussed on general credibility, and did not reach clear findings regarding the report by Professor Nurse.
9. Mr Forrest focused his submissions on AJH (Minority group - Swahili speakers) Somalia CG [2003] UKIAT 00094 at paragraph 33:
33. What is needed therefore in cases in which claims to be Somali nationals of Bajuni clan identity are made is first of all: (1) an assessment which examines at least three different factors:
(a) knowledge of Kibajuni,
(b) knowledge of Somali, varying depending on the person's personal history; and
(c) knowledge of matters to do with life in Somalia for Bajuni (geography, customs, occupations etc).
But what is also needed is (2) an assessment which does not treat any one of these three factors as decisive: ?, it is even possible albeit unusual that a person who does not speak Kibajuni or Somali could still be a Bajuni.
10. Mr Forrest referred also to LS (Bajuni - Kibajuni speaker) [2002] UKIAT 416 at paragraph 14 for the observation that a young Bajuni who had grown up in a refugee camp in Kenya speaking Kiswahili (which is part of the appellant's claimed background) might not be a Kibajuni speaker. He also acknowledged the observation that:
? judges should approach any case involving someone who claims to be a Bajuni resident of Somalia, but who cannot speak Kibajuni (let alone Somali) with great caution.
He argued that this was a plain case of someone who spoke Kiswahili but not Kibajuni, yet is a Bajuni, and that the evidence of both Sprakab and Professor Nurse showed that to be a possibility. There has been a chaotic and fast changing background in that part of the world for many years. On the evidence in this case, the judge had given too much weight to inability to speak Kibajuni. The Sprakab Report looked only at the language spoken, whereas Professor Nurse reached realistic conclusions based on the life history. The judge had not properly explained why the Sprakab report was of any worth in determining this case. It should be re-heard in the First-tier Tribunal.
11. Mr Matthews asked me to note an acknowledgement correctly made by Mr Forrest during his submissions. Paragraph 5 of the grounds of appeal (not prepared by Mr Forrest) is wrong in stating that the Supreme Court in MN and KY v SSHD 2014 SC (UKSC) 183 "endorsed the Court's decision, ruling that Sprakab analysis could not be relied upon". That misrepresented the decision of the Supreme Court, which was broadly favourable to the use of language analysis by Sprakab.
12. Mr Matthews submitted that the First-tier Tribunal Judge had not decided the case based on the Sprakab Report, and in no way preferred it over the evidence of Professor Nurse. The criticisms of Sprakab of a broad nature made by Professor Nurse were resolved by MN and KY v SSHD. Professor Nurse's comments on other matters were taken into account by the First-tier Tribunal in this case (in particular, at paragraphs 10, 11, 14 and 15). They were not ignored but were at the forefront of the mind of the judge. Both expert sources agreed that the appellant did not speak Kibajuni. The judge did not think that was decisive. Other factors were examined including the appellant's knowledge, or lack of knowledge, of Somali and her claimed account of her life within Somalia. Professor Nurse agreed that her knowledge of her claimed home island of Chula was not consistent with actually having lived there. All the matters referred to in AJH were taken into account. There was a misunderstanding in the grounds of appeal (although this was also not a point taken by Mr Forrest) that the Sprakab report had not been before the First-tier Tribunal. In fact, the report itself, not just a statement of its conclusions in the refusal decision, was before the judge. There was no criticism to be made of the judge's findings in so far as they were based on the language reports. In any event the crucial conclusion was based on other factors, in which no error of law was alleged.
13. I reserved my decision.
14. In my opinion, Judge Malik properly considers the reports both from Sprakab and from Professor Nurse. The reports agree that the appellant is a native Kiswahili speaker, and not a Kibajuni speaker. Professor Nurse thinks that it would be unwise to use the conclusions of the Sprakab Report as a basis for deciding that the appellant is not from Somalia, a point which the judge notes before moving on to consider other aspects of the appellant's claim to be from Chula. The judge at 15(i) discounts the appellant's claimed ability to speak Kibajuni, a point on which she was not supported by either report. The rest of the reasoning, points (ii) to (viii), is not based on inability to speak Kibajuni. Points (ii) and (iii) reasonably identify failings in the appellant's evidence about her date of birth and her age at the time of claimed significant moves from place to place. Point (iv) notes the appellant's failure to mention as a problem in Chula the devastating tsunami in December 2004, a time when by her account she would have been residing in the island. As Mr Matthews submitted, that is a particularly telling omission. Points (v), (vi) and (vii) are further credibility matters, of which no criticism has been raised. At 15 (viii), the judge applies the citation above from LS and reaches a conclusion in the round.
15. I do not find that the judge gave either too much or too little consideration to the evidence regarding the appellant's linguistic background. Due weight was given to the reports both from Sprakab and from Professor Nurse. They agreed that the appellant is not a Kibajuni speaker. The best she could derive from Professor Nurse's report is that her claim to have spent time both in the Bajuni islands in Somalia and in refugee camps in Kenya was a possibility on linguistic evidence, but he was against her assertion that she came from Chula.
16. Having fully examined the grounds and submissions, they resolve into no more than a disagreement with conclusions which were properly open to the judge, who gave a number of sensible reasons for concluding that the appellant was not a witness of credit even to the lower standard.
17. The decision of the First-tier Tribunal shall stand.

5 August 2016
Upper Tribunal Judge Macleman