Tribunal decisions

The decision

ST

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10213/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 14 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A M
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Respondent: Mr B Hoshi, counsel
For the Appellant: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS

Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269), we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant or his wife. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

1. The respondent claims to be a Syrian citizen. He appealed against the decision of the appellant on 10 July 2015 to refuse his asylum claim on the grounds that linguistic evidence had shown that he was Egyptian. His appeal was decided by First-tier Tribunal Judge Flynn ("the FTTJ") who allowed his appeal in a decision promulgated on 14 April 2016.
2. For ease of reference, I refer henceforth to the appellant as the Secretary of State and the respondent as the claimant.
3. I maintain the anonymity direction made in the First-tier Tribunal.
4. Permission to appeal was granted by Upper Tribunal Judge Plimmer on 3 October 2016 as follows:
"1. It is arguable that the First-tier Tribunal has erred in law in placing the burden of proof that the appellant is not Syrian upon the SSHD (para 49).
2. The grounds set out a number of paragraphs from MA (Ethiopia) v SSHD (2009) EWCA 289. It is difficult to see the relevance of those paragraphs to the instant case. Both parties should be prepared to address the burden and standard of proof in a case of disputed nationality by reference to the authorities."
Thus the appeal came before me.
5. Mr Norton, for the Secretary of State, relied on the application to the FTT for permission to appeal and which was renewed in the Upper Tribunal. He submitted that the FTTJ was bound by paragraph 67 of MA with regard to the burden of proving risk on return. He submitted that paragraph 42 of the decision contained a clear error which infected the findings. Further, in paragraph 49 the burden had been reversed. He submitted the IDI to which the appellant had referred was "historical" but, even if it remained current, the FTTJ had been bound by MA. He further submitted that the decision lacked findings as to why two native speakers of Damascene and Cairene Arabic were disregarded and the expert evidence of the appellant accepted. The appellant's expert's report did not indicate any expertise in language variations between the two areas. In any event, the expert stated it was possible the appellant was from Egypt.
6. Mr Hoshi, for the appellant, relied on his Rule 24 reply and submitted that the grant related only to the issue of nationality, not the reasons challenge arising from the findings on the expert evidence. In any event, the Secretary of State's challenge to the findings on the expert evidence was merely a disagreement with the outcome. The principal issue was the burden and standard of proof applied by the FTTJ with regard to the disputed nationality. The basic principle was that it was for the appellant to demonstrate his nationality to the lower standard (OI (late reliance on fresh evidence) Somalia [2004] UKIAT 000196). The Secretary of State's own guidance (published after MA) was that, in the case of disputed nationality, the Secretary of State bore the burden of proof and the standard was the balance of probabilities. This guidance followed OI. He referred to Hamza [2002] UKIAT 05185, a starred judgment in which Collins J said that, if an Adjudicator is going to make a positive finding on nationality against an Appellant (as opposed to simply declining to accept the Appellant's claim to the lower standard that he is a particular nationality), then the burden/standard on the SSHD is a balance of probabilities. He submitted that MA was not relevant here (albeit counsel for the appellant at the FTT hearing had referred to it in her skeleton argument). He accepted the FTTJ had erred in referring to MA but submitted this was not a material error. In MA, the appellant had been entitled to Ethiopian nationality but would be refouled to Eritrea; in that case the Court of Appeal had found it was for the individual to demonstrate by making reasonable efforts that they would not be recognized as a national of the country in question. That was not the situation for this appellant, he submitted.
7. Mr Norton submitted in reply that because the challenge to the findings on the expert evidence had not been precluded in the grant by UTJ Plimmer, it was at issue before me.
Findings
8. The appellant's counsel at the First-tier hearing specifically cited, in her skeleton argument, the Secretary of State's IDI "Nationality: Doubted, Disputed and Other Cases". That document was last updated in 2013 and I do not agree with Mr Norton's suggestion that it is historical. It is a statement of the Secretary of State's policy for dealing with claims where there are concerns over the claimant's nationality, as is the case here. The reasons for refusal letter makes it clear that the Secretary of State "strongly disputed" (paragraph 45) the appellant's nationality. She made a positive assertion the appellant was from Egypt and removal directions accordingly. I am in no doubt therefore that the IDI is of relevance here. Furthermore, the IDI reflects the current authorities on the issue.
9. I agree with Mr Hoshi that MA is of no relevance in this case. Paragraph 34 of RM (Sierra Leone) [2015] EWCA Civ 541 summarises the position:
"What emerges from those cases - and would in truth be clear enough even in the absence of authority - is that what standard of proof applies to the question of an applicant's nationality depends on the legal issue to which it is relevant. If it is relevant to whether he will suffer persecution (whether by reference to the Refugee Convention or article 3), the lesser standard will apply. But if it is relevant to some other issue - such as whether it is in fact possible in practice for him to be returned, and any rights that may accrue if it is not - the standard is the balance of probabilities.
10. The burden of proving the appellant is at risk of persecution in Syria is on the appellant and the standard is the lower one. Because the respondent disputed the appellant's nationality having, she said, found evidence that he was from Egypt (paragraph 42 of the reasons for refusal letter), it was for her to demonstrate, on the balance of probabilities, that he could be returned to Egypt because of his nationality. This approach accords both with the authorities to which I have been referred by Mr Hoshi, with RM (Sierra Leone) and with the respondent's own guidance.
11. For these reasons, notwithstanding the FTTJ's inaccurate summary of the guidance in MA, I find there is no error of law in her decision that the burden of proving the appellant's nationality rested with the respondent on the balance of probabilities.
12. The respondent made a reasons challenge in her application to the FTT for permission to appeal. Whilst that application was refused, she renewed those grounds in her application to this tribunal. UTJ Plimmer does not state that all grounds are arguable but, by inference, that is the case. I therefore consider whether, as claimed by the Secretary of State in the application to the FTT for permission to appeal, "the FTTJ materially erred in how she considered the expert evidence relied on by the parties; little reasoning is given for placing no weight on the linguistic evidence of the SSHD. This is also an error of law". Mr Norton did not expand significantly on this ground, save to refer to the appellant's expert's lack of specific experience of the Cairene and Damascene dialects.
13. While the linguistic report was provided by Verified, rather than Sprakab, RB (Linguistic evidence - Sprakab) Somalia [2010] UKUT 329 (IAC) remains of relevance to the assessment of linguistic reports. In summary, linguistic reports from Sprakab were to be given "considerable weight" as a result of the processes used and the data available to Sprakab. However, such reports should not be treated as infallible but evidence opposing them will need to deal with the particular factors identified in the report. These findings were endorsed by the Court of Appeal in RB (Somalia) v SSHD [2012] EWCA Civ 277. In RM (Sierra Leone) [2015] EWCA Civ 541 it was held that RB set out the approach to be taken to linguistic analysis reports. A properly critical approach was appropriate.
14. The FTTJ rightly considered the expert evidence in the round with the remaining evidence. She noted the respondent attached "great weight" to the conclusions in the LOID report that the appellant "did not speak like a Damascene but like a Cairene" (paragraph 43). She noted the evidence of the two Verified analysts had not been provided although it had been summarised in the LOID report. She also noted "the report includes few details of the analysts". These were observations of relevance to an assessment of the evidential weight to be given to the reports pursuant (RB and RM).
15. Professor Matras states in his report that he has reviewed the Verified "written and audio material". He had been instructed to give an opinion as to whether he agreed with the report's conclusions. He says he "learned the Palestinian variety of Arabic as an adolescent" and has studied "the linguistics of the Middle East". He has contributed entries on Arabic dialects to the Encyclopaedia of Arabic Languages and Linguistics. He has also "supervised a comparative investigation of Arabic dialects, working with a team of seven native speakers of Arabic, all postgraduate students working under [his] supervision, who compiled a systematic data comparison on some 15 different varieties of Arabic". He referred to having access to this data corpus and being able to draw on it for comparison. He refers to having close familiarity with the research literature on Arabic dialectology and to acting as a consultant on the analysis of language for the determination of origin, with analysis of Arabic in particular. Given this experience, I am satisfied the FTTJ's finding that Professor Matras had "substantial expertise", albeit not a native speaker of Syrian or Egyptian Arabic, is founded on the evidence.
16. The FTTJ described Professor Matras' report for the appellant as "thorough and carefully reasoned". She considered he had "analysed the appellant's speech recording carefully". I note Professor Matras gave his opinion with regard to the qualifications of the Verified report's author, in particular the absence of training in linguistic analysis or dialectology. His reports makes it clear where he agrees with some conclusions in the Verified report and disagrees with others. Professor Matras identifies certain findings in the Verified report which refer to forms in the recording which he was unable to find in that recording. He also refers to forms which the Verified report does not mention and which are typical of Cairene Arabic, thus displaying a balanced approach to giving his opinion on the Verified report. He notes various inconsistencies in the Verified report. For these reasons, I am satisfied that the FTTJ's description of the quality of Professor Matras' report as "thorough and carefully reasoned" is founded on the evidence before her.
17. The FTTJ made a point of ignoring Professor Matras' speculations about reasons for the appellant's mixed pronunciation as the appellant had not provided any detail of his family background. She noted the appellant's evidence he did not attend school but avoided speculating as to whether this explained his failure to speak standard Arabic as used in central Syria. She noted the respondent had not considered whether the appellant's family originated from an area outside Damascus; this was relevant in the context of Professor Matras' statement that some of the dialect used by the appellant was widespread in northern and eastern Syria. The FTTJ bore in mind the submissions for the respondent that Professor Matras was not a native speaker of Arabic and that there was no evidence he had spent time in either Egypt or Syria (paragraph 48) whereas the analysts were both native Arabic speaks and lived, respectively, in Damascus and Cairo. Thus it is clear from the FTTJ's reasoning that she took into account all those issues which, it was submitted before me, had not been given due weight by her. Her findings are based on the evidence before her; they are cogent and adequately reasoned. There is no error of law in her approach to the linguistic evidence. The respondent's challenge is no more than a disagreement with her findings.
18. For these reasons, the decision of the FTTJ contains no material error of law.
Decision
19. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
20. I do not set aside the decision and reasons of the First-tier Tribunal.

A M Black
Deputy Upper Tribunal Judge Dated: 11 November 2016