Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10697/2015

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 20th October 2016
On 29th November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR. AJW
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I 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. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mr. M. Middleton, Kirklees Law Centre
For the Respondent: Mrs R. Petersen, Home Office Presenting Officer

DECISION AND REASONS
The claim
1. The appellant claimed protection in March 2015. He claimed he was Somali and had lived all his life on the Bajuni islands of Chula and Mdova. He said he was a member of the Bajuni, a minority clan.
2. Although married he began a relationship with a woman on the island. On 25 December 2014 he returned after fishing and was told Al Shabaab were on the island looking for him. He had not realised the woman was also married but Al Shabaab came to know of this. Consequently they stoned her to death and were seeking to punish the appellant. He left the island and travelled to Yemen where he remained for several months. He then travelled to the United Kingdom by air via another country and made his claim the day after he arrived.
The refusal
3. The respondent refused his claim in July 2015. The respondent had the benefit of report from Sprakab which concluded he was Tanzanian. The respondent did not accept he was Somali or from a minority clan. It was acknowledged that if he were a minority clan islander then his claim would succeed.
The First tier Tribunal
4. His appeal was heard by First-tier Tribunal Judge Moxon who dismissed the appeal. The judge placed reliance upon the Sprakab report, describing it as compelling. The judge indicated this was not the sole basis for the decision which resulted from a consideration of all of the evidence in the round. The judge made various negative credibility findings. The judge concluded that the appellant was more than likely Tanzanian as the respondent believed. The appellant's representatives had engaged an expert; Prof Nurse, who commented that the appellant had displayed considerable and accurate local knowledge and that he spoke Swahili with a Bajuni accent.Prof Nurse challenged the conclusions of the Sprakab report.
Permission to appeal
5. Permission to appeal was granted on the basis it was arguable that First-tier Tribunal Judge Moxon did not give adequate reasons for rejecting the views of Prof Nurse.
The Upper Tribunal
6. The respondent made a rule 24 response opposing the appeal. It was submitted that First-tier Tribunal Judge Moxon had engaged with the case law regarding Sprakab reports and gave valid reasons for rejecting Prof Nurse's assessment. Furthermore the judge did not rely solely on the report of Sprakab but considered all of the evidence.
7. At hearing, Mr. Middleton relied on the grounds advanced when permission to appeal was sought. In turn, Mrs Petersen relied on the rule 24 response.
Consideration
8. When preferring the evidence of one expert over other reasons must clearly explain the basis for the preference. The fact there is an expert opinion is not of itself an adequate reason for its adoption if challenged.
9. When I first looked at the decision I was initially concerned that the judge might have produced large extracts from the Upper Tribunal and Supreme Court judgements on Sprakab reports and then reached a conclusion without explanation. The Supreme Court in SS HD -v-MN and KY (Scotland )[2014] UKSC 30 emphasised the importance of the tribunal itself examining a Sprakab report critically in the light of all of the evidence and the reasoning supporting its conclusion. To simply adopt a report gives rise to the risk of prejudging issues. However, on careful reading of the decision it is my conclusion this clearly was not the case here.
10. At paragraph 51 onwards the judge stated that the Sprakab report was preferred over the report from Prof Nurse. Reasons for doing so were given. Firstly, the criticisms by Prof Nurse of Sprakab reports had been rejected by the Upper Tribunal in RB linguistic evidence -Sprakab) Somalia [2010] UK UT 329. At paragraph 45 of First-tier Tribunal Judge Moxon's decision the relevant extract is provided. Prof. Nurse had expressed concern about the shortness of some interviews, the type of questioning and unsatisfactory telephone lines. However the Upper Tribunal said this was not a proper basis was saying the opinions given by Sprakab were wrong. Furthermore, Prof Nurse's survey of Sprakab reports only related to negative reports.
11. First-tier Tribunal Judge Moxon gave reasons for finding the Sprakab report compelling. Firstly the reports relied upon two qualified and experienced linguists. Secondly, the reason for the outcome in the report is explained. Prof Nurse had questioned the evidential basis for the conclusions. However the report referred to elements of Tanzanian Swahili in the appellant's speech. The judge found this particularly compelling given the claim that the appellant had never been away from the islands.
12. The judge refers to Prof Nurse emphasising the appellant's use of Bajuni words. However the judge raised the possibility of this arising through contact with Bajuni islanders in Tanzania. The judge commented that this could tie in with Prof Nurse's comment that the appellant's Bajuni accent was only "slight/light".
13. The decision indicates that First-tier Tribunal Judge Moxon had careful regard to the relevant case law and has extracted key passages. The judge did not simply adopt the Sprakab report but has evaluated it against the contentions of Prof Nurse and looked at the claim in the round and has given a reasons decision for preferring the Sprakab conclusion.
14. The two reports were not looked at in isolation. The central issue in the appeal was the appellant's nationality. Whilst the two reports are central to this his overall credibility is also relevant in assessing the truthfulness of his claim.
15. The appellant had demonstrated considerable knowledge of Somalia and its islands but on some questions came unstuck. The explanation put forward was that he had not travelled outside the islands and was uneducated. However the judge felt there were some issues such as the national anthem and the geography of Kismayo he should have known, particularly as the Bajuni islands are off its coast.
16. The judge concluded that the appellant's knowledge could have been learnt and he may have had direct contact with islanders or may indeed have visited the islands.
17. The appellant had been questioned as to the length of time it would take to walk from the seashore to the village. The judge commented on his initial inability to answer; and then the varied from 15 to 30 minutes. The judge commented that someone who had lived on the island all their lives should have been able to give a precise answer.
18. The judge went on to comment about the credibility of the index event. It was not credible he would know nothing about his lover's situation or family given the small population on the island and the claim they had been seeing each other for a year.
19. The judge went on to comment on the country evidence which indicated that Al Shabaab were not present on the islands though there were sympathisers. The appellant's evidence had been that he was told that Al Shabaab had gone onto the island and were looking for him.
20. The judge did not attach significance to the fact the appellant used a Bajuni interpreter at the hearing. The judge pointed out that over 80% of the words in Bajuni and Swahili are identical.
21. In the grounds it was suggested that the judge erred in law by relying on the fact the appellant did not speak Somali. At paragraph 58 of the decision the judge in fact referred to the appellant's evidence that his family were from Somalia and it was in this context that he would have expected some ability in Somali. However, the judge pointed out that the issue was not determinative. I found this comment by the judge does not constitute an error of law.
Conclusions
The decision of First-tier Tribunal Judge Moxon dismissing the appellant's appeal shall stand. No material error of law has been demonstrated.

Deputy Upper Tribunal Judge Farrelly