Tribunal decisions

The decision

IAC-PE-SW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12941/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21st September 2016
On 08th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE MCCLURE

Between
AE
(ANONYMITY DIRECTION MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Abdar Legal Representative
For the Respondent: Mr Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge S Taylor promulgated on 23rd March 2016, whereby the judge dismissed the Appellant's appeal against the decision of the Respondent dated 12th October 2015. The decision by the Respondent was to refuse the appellant's protection claim.
2. An anonymity direction was made in the First-tier Tribunal. No submissions were made on the point and no issue raised by the respondent as to why such a direction should not be continued. I make an anonymity direction.
3. The appellant claims to be a citizen of Syria. The respondent's case is that the appellant is not a citizen of Syria but a citizen of Egypt. It is not challenged that, if the appellant is a citizen of Syria, his protection claim succeeds. If however he is a citizen of Egypt, then his protection claim fails in line with the decision by the First-tier Tribunal Judge.
4. In dismissing the claim Judge Taylor found taking account of all the evidence that the appellant was an Egyptian national. Central to that finding was a report from Sprakab relating to the language spoken by the appellant.
5. By decision made on the 12th August 2016 leave to appeal to the Upper Tribunal was granted. The grant of leave provides:-
"The Respondent rejected the Appellant's protection claim finding that he was not from Syria. The main complaint by the Appellant is the Respondent's and Judge's reliance on a report from Sprakab which found it "very unlikely" that the Appellant is from Syria as he claims. The likelihood that the Appellant is from Egypt as the report finds is stated to be "very high". Whilst I do not accept that the judge misdirected himself as to the law concerning Sprakab reports and the report does give specific reasons why the Appellant's dialect is considered to be that of a speaker from Egypt and not from Syria, it is arguable that the Judge erred in failing to give full consideration to the complaint about the qualification and expertise of the First and Second linguist. The fact that the person, who assessed the dialect is not said to have any connection with Egypt may undermine the conclusions of the report. Put simply, it is not stated in the report how that person knows the difference in dialect between that of an Arabic speaker from Syria and one from Egypt."
6. Thus the matter appeared before me to determine in the first instance whether or not there is an error of law in the original determination.
7. The leave granted did not prevent the Appellant's representative from arguing the other grounds of appeal. The grounds in summary are as follows: -
a) It was for the respondent to show that reliance could be placed on the Sprakab Report. No reliance can be placed on the report because it was not possible to discern whether the "interviewer" was Syrian, whether he had spent any time in Syria, or any time in Egypt and no details of his qualification and expertise were set out. The analyst, who compiled the report on the basis of information provided by the interviewer, may or may not have had a specialist or higher degree in linguistics. There was a conspicuous lack of any details of any qualifications the purported expert may have nor was there any evidence of academic training or qualifications provided.
b) The judge failed to make findings on the core issues of credibility alternatively failed to give adequate reasons for findings with regard to credibility, specifically with regard to the appellant's Syrian nationality, his age, the accurate facts the appellant gave about Syria especially in interview.
c) The judge failed to take account of the appellant's age and give the benefit of the doubt to the appellant by reason thereof.
Error of law
8. With regard to the credibility issues, the sole issue to be determined was whether or not the appellant was a national of Syria as is made clear in paragraph 14 of the decision. It has been accepted that if the appellant is a Syrian national he would be entitled to asylum. Equally if the appellant was not a Syrian national the appellant had not given any basis for asserting that he would be at risk of mistreatment or persecution in any other country. Thus if he was an Egyptian national no basis for saying that he would be at risk on being returned to Egypt had been advanced.
9. With regard to the age of the appellant as is evident from paragraph 13 the judge was quite aware of the age of the appellant at the time of the interview and at the time of the events that he was recounting. The judge has clearly taken account of the appellant's age is assessing the credibility of the appellant's account. I do not find that there is any error in the way that the judge dealt with the issue of the appellant's age.
10. Similarly as is evident from paragraph 16 the judge noted that the appellant had correctly answered a number of questions about Syria. Indeed if one considers paragraph 16 the extent of the appellant's knowledge of Syria was specifically considered and the judge had indicated that if that was the only evidence he would have determined that the appellant was a Syrian national.
11. To that extent the judge has considered the age of the appellant and has considered the appellant's knowledge of Syria. The judge has also considered the lack of knowledge in certain respects and specific facts, which the appellant did not know about Syria. There is no error in law in the way that the judge has considered the issues of age and the knowledge of the appellant in respect of Syria. I do not find that there is any error in the way that the judge has dealt with the issue of age and credibility.
12. In assessing credibility the judge had to further consider the Report from Sprakab and the impact that that had upon the overall finding of whether the appellant was a Syrian national. In considering the report the judge found that it was capable of being relied upon and was material to such an extent that he concluded that the appellant was an Egyptian national.
13. I would however draw attention to the contents of paragraph 16 and 17 of the decision. Towards the end of that paragraph the judge makes the following comment:-
"16. ? If the decision on the appellant's nationality was based solely on the answers to questions concerning Syria, applying the lower standard of proof I would accept that the appellant was from Syria. However, the appellant has failed to answer the conclusions of the linguists' report that his use of Arabic indicates that he comes from Egypt. The appellant has not countered the findings of the report and has failed to explain why he speaks with an Egyptian Arabic rather than Syrian Arabic. The use of a particular dialect or pronunciation would be well established in teenage years and I find that the appellant's age and limited education are immaterial to the findings of the Sprakab report on linguistics.
17. From the findings of the Sprakab report I am satisfied that the appellant was from Egypt and not from Syria as claimed."
14. The first point taken with regard to the report appears to be that there is no evidence what qualification or experience the analyst has to establish his expertise to assess that the language used by the appellant is language of an Egyptian national and not by a Syrian national. That is not to say that the analyst requires any formal qualifications in linguistics or a specialised degree in linguistics but rather evidence had to be produced to justify the analyst position as an expert qualified to act as an analyst and his ability to distinguish between Arabic spoken in Syria and Arabic spoken in Egypt.
15. In the case of RB 2010 UKUT 00329 [paragraphs 9 to 22] detailed consideration was given to the process by which language analysis was undertaken. There was a telephone conversation with the appellant. The analyst in conjunction with the linguists then analysed the conversation and prepared a report on the language of the appellant. The conversation appears to have been analysed on some four occasions by Sprakab analysts and linguists. As is clear from paragraph 20 of the decision there was specific evidence as to the qualifications and expertise of the analysts and the linguists. The analysts referred to in RB were persons that had mastered the language concerned to a high degree or persons that spoke the language as their mother tongue. The analyst is to be distinguished from those that are the linguists. It is the linguists who have the specialised language degrees. The process then describes that the analyst in consultation with the linguists has to critically consider the telephone interview and identify material language traits that are of significance. The classification of those linguistic traits would be undertaken by the linguists, whether that significance be phonology or prosody, morphology or syntax or what is described as lexica [language usage identified as emanating from a specific area].
16. In that event it is not for the analyst to be qualified at degree level, although there is nothing to prevent that, but rather the analyst is the person that speaks the language as a mother tongue. However it is still necessary to establish what expertise the analyst has to identify significant features and whether they emanate from Arabic spoken in Syria or Arabic spoken in Egypt.
17. I would also note that as part of the report in the present case under Section 3 Knowledge assessment, investigation is undertaken into an applicant's knowledge of the claimed country of origin, its geography, local to the area where he claimed to live, the currency, radio stations and the like.
18. The expertise of the analyst are set out in the report. The report states:-
Analyst me01
The analyst was born in 1964 in Syria, and was raised in Palestine
The analyst first came to Sweden in 1994
The analyst last visited Palestine in 1983, Lebanon in 2012, Jordan 2011 and Syria 2011
The analyst analyses the Arabic Language, and Arabic dialects from the Middle East, North Africa, the Arabic Gulf and Eritrea an Arabic.
The analyst spent long periods of time in various parts of the Middle East, North Africa, Sudan and the Arabic Gulf.
19. Unlike in RB where consideration was being given to what is a distinct language Bajuni, although arguably the language had significant similarities to Swahili, in the present case the language spoken is Arabic and it is identifying dialects of Arabic that is material. In that respect the expertise of the analyst to distinguish between the different dialects has to be established.
20. Nowhere within the report does it identify how long the analyst was in Syria. The analyst may have left Syria when he was a baby and only have spent a short time in Syria otherwise. His primary experience may therefore be the Arabic language in Palestine. The analyst has never been to Egypt. It does not deal with the training or any basis for the analyst being able to identify specific language features of significance and differentiate between Syrian and Egyptian.
21. The whole process undertaken by the Sprakab organisation was considered in detail in RB paragraphs 86 to 89 and full examination of the process by which analysts are selected to carry out this task is identified in the judgement itself. The analysts are identified as persons that speak the language to a high degree usually at a native level and are then taught by Sprakab the techniques necessary to undertake the tasks of analysis that is "to think critically and analytically regarding language". Before being permitted to undertake any analysis they are tested and trained and evaluated to ensure that their carrying out their tasks appropriately.
22. In that respect the case of MN has dealt with the issues at paragraph 37 wherein Lord Carnwarth states:-
"so here, it is inappropriate for general questions relating to Sprakab, its methodology and the presentation of its reports to be re-litigated constantly in separate FTT hearings. ? Subject to appropriate safeguards they (the Upper Tribunal) were entitled in my view to find no objection in principle to the admission of the Sprakab reports, whether because they were in the name of an organisation rather than an individual, or in general for the failure in other respects to comply with practice directions. ?"
23. That having been said however Lord Carnwarth at paragraph 51 of MN in seeking to give guidance as to how one should analyse critically the reports of Sprakab states:-
"51. ? (i) on the basis of the material we have seen, I see no reason in principle why Sprakab should not be able to report on both (a) language as evidence of place of origin and (b) familiarity with claim place of origin provided, in both cases, their expertise is properly demonstrated and their reasoning adequately explained. (As will be seen below the problem in relation to (b) was not the nature of the evidence, but the lack of demonstrated expertise.
(ii) as to(a) language:
a) The findings (on evidence) in RB are to my mind sufficient to demonstrate acceptable expertise and method, which can properly be accepted unless the evidence in a particular case shows otherwise;
b) The Upper Tribunal ought to give further consideration to how the basis for the geographical attribution of particular dialects or usages can be better explained and not (as is often currently seems to be) left implicit. The tribunal needs to be able to satisfy itself as to the data by reference to which analysts make judgements on the geographical range of a particular dialect or usage.
c) The RB safeguard requiring the Secretary of State to make the recording available to any expert instructed for the claimant is not only sensible, but essential."
24. The point taken by the appellant's representative is that the basis for establishing that the analyst has the expertise necessary to critically look at the dialect of the appellant and to attribute specific dialects or language usage to a specific area has not been established.
25. It is critical to the process to be undertaken that an assessment can be made of the expertise of an individual analyst. In the present case the evidence to substantiate that the analyst has the required expertise to critically look at the language and country knowledge of the appellant has not been established. Whilst the analyst may speak Arabic as a mother tongue his experience of Syrian Arabic and Egyptian Arabic and therefore his ability to differentiate between the two is unclear.
26. I have to say that, whilst the expertise of the analyst was an issue that was raised within the Skeleton argument of the appellant before the First-tier Tribunal, the recordings of the interview would have been available to the appellant to have his own language analysis carried out. I would note that the skeleton argument is dated 6 March for a hearing on 7 March. If that was the central issue of the appeal there would have been nothing to stop the appellant's representative from obtaining their own report on the appellant's language. Equally raising the issue at such a late stage gave little time for the respondent to deal with the matter.
27. However despite that the responsibility still lies with the respondent to show that the experts that they are asking the court to rely upon have the required expertise necessary to enable them to properly analyse the appellant's language and to establish knowledge of the country in question.
28. Before going further within this matter I would draw attention to the Sprakab and report itself within the respondent's bundle. I note that the report is separated into different sections. Specific importance is the section headed Linguistic Analysis Report wherein the following is contained: -
Knowledge assessment is separate and forms no part of the language analysis
29. That is material because the report itself separates out into two parts, the linguistic analysis which identifies the features set out above and a knowledge analysis relating to the appellant's personal knowledge of his country, facts about his country and the geography of his local area. Within Section 3 of the report the Knowledge Assessment it has to be accepted that there are details about knowledge of the local area in which the appellant was living which it is suggested is indicative of an individual that has not lived in Syria or the local area. There would be a problem with that in that there is no indication on what basis the persons reporting are competent or have expertise to make such comments.
30. However it is to be noted within the decision itself that the judge having carefully considered the case of MN indicates that he has considered the linguistic aspects of the report and it is the appellant's failure to answer conclusions that his use of Arabic that comes from Egypt that was material in his considerations not the background or geographical knowledge.
31. The judge has considered the case of MN as set out in paragraphs 12 and 13 of the decision. The judge has not considered the expertise of the analyst to identify material parts of the appellant's speech as emanating from Egypt or Syria. Without such the caveat contained within paragraph 51 of MN that the expertise is properly demonstrated has not been satisfied.
32. That I find is a material error of law.
33. In the light of that I have to determine how to deal with the appeal. The point in issue is the expertise of the analyst. The issue of the expertise was raised Before the First-Tier Tribunal. No attempt has been made to obtain further evidence substantiate the expertise. It is a matter that is clearly set out within the case law.
34. As indicated by the respondent's representative if there were failings in the approach of the judge with regard to the report, the findings of fact otherwise made by the judge still stand.
35. On the basis of those findings of fact I find that the appellant has discharged the burden to show that he is a national of Syria. I therefore allow the appeal.
Decision
36. There is a material error of law in the original decision and I substitute the following decision: -
The appeal is allowed on asylum grounds.

Signed Date

Deputy Upper Tribunal Judge McClure