RM (Sierra Leone) v The Secretary of State for the Home Department

Factual and Procedural Background

The case concerns an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) which dismissed an appeal against a First-tier Tribunal's dismissal of the Appellant's appeal against the Secretary of State's refusal to revoke a deportation order. The Appellant, aged 43, arrived in the United Kingdom in April 1999 using a false passport, claiming to be a national of Sierra Leone. He sought asylum based on a fear of persecution due to tribal affiliation and later on the basis of his alleged homosexuality. His initial asylum claim was refused in 2003 and his appeal dismissed in 2004, with findings that he was not credible. He was subsequently convicted for use of forged passports and recommended for deportation.

Following his release from imprisonment, the Appellant absconded but was later detained. The Secretary of State decided to deport him to Nigeria based on evidence including a linguistic analysis report, despite the Appellant's claim to be from Sierra Leone. The Appellant challenged the deportation order, asserting fear of persecution due to sexuality and health issues. His appeals at the First-tier Tribunal and Upper Tribunal were dismissed, with the tribunals concluding that he was a Nigerian national and not credibly homosexual, and that his removal would not breach human rights obligations.

The Upper Tribunal granted permission to appeal on the ground that the First-tier Tribunal erred in law by applying the wrong standard of proof regarding the Appellant's nationality. The appeal was heard by this Court, which considered the admissibility and weight of the linguistic evidence from Sprakab and the applicable standards of proof in determining nationality.

Legal Issues Presented

1. What is the correct standard of proof to apply when determining the nationality of an appellant in deportation proceedings, especially where nationality affects the lawfulness of deportation?
2. Whether the First-tier Tribunal and Upper Tribunal erred in law by relying on the Sprakab linguistic analysis report in determining the Appellant's nationality.
3. Whether the Appellant's removal to Nigeria would breach his rights under Articles 2, 3, and 8 of the European Convention on Human Rights given his claimed sexuality and health conditions.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that he was not a Nigerian national but a Sierra Leone national and that the deportation to Nigeria would be unlawful.
• He asserted that he was homosexual and would face persecution due to his sexuality if deported, thus engaging protection under the Refugee Convention and Articles 2, 3, and 8 of the ECHR.
• The Appellant challenged the reliability and admissibility of the Sprakab linguistic report, arguing that the analysts lacked appropriate expert qualifications and that the report was flawed in methodology and conclusions.
• He argued that the First-tier Tribunal applied an incorrect standard of proof by requiring proof on the balance of probabilities rather than the lower standard of reasonable likelihood regarding his nationality.
• The Appellant submitted that the Upper Tribunal erred in law by attaching weight to the Sprakab report without proper scrutiny of the analysts' expertise and by failing to consider relevant criticisms.

Secretary of State's Arguments

• The Secretary of State maintained that the Appellant was a Nigerian national on the balance of probabilities, supported by the letter from previous solicitors, the positions of the Nigerian and Sierra Leonean High Commissions, and the Sprakab report.
• It was argued that the Appellant failed to demonstrate a reasonable likelihood that he was not Nigerian and thus failed to establish that deportation to Nigeria would be unlawful.
• The Secretary of State accepted that homosexuality is illegal and socially repressed in Nigeria but disputed the Appellant's claim that he was homosexual.
• It was submitted that even discounting the Sprakab report, the other evidence sufficed to support the conclusion that the Appellant was Nigerian.
• The Secretary of State contended that the Sprakab report was admissible expert evidence and that the Upper Tribunal properly applied the relevant legal principles and considered criticisms of the report.
• It was submitted that the First-tier Tribunal applied the correct standard of proof in accordance with the case law, and thus there was no error requiring a re-hearing.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the standards of proof applicable to the determination of nationality in deportation cases, distinguishing between issues relevant to persecution risk (where a lower standard of reasonable likelihood applies) and issues relevant to the lawfulness of removal or returnability (where the balance of probabilities applies). The Court found that the Appellant's nationality was relevant only to the latter and, accordingly, the higher standard was appropriate.

The Court examined the evidence relied upon by the First-tier Tribunal and Upper Tribunal, including the letter from the Appellant's former solicitors, the positions of the Nigerian and Sierra Leonean High Commissions, and the linguistic analysis report from Sprakab. It concluded that even absent the Sprakab report, the evidence sufficed to establish on the balance of probabilities that the Appellant was Nigerian.

Regarding the Sprakab report, the Court considered the qualifications and expertise of the analysts and the linguist involved. It acknowledged criticisms of the report's methodology and the lack of formal linguistic qualifications but held that the analysts possessed sufficient practical expertise to provide admissible evidence. The Court noted that the Upper Tribunal properly excluded certain parts of the report and critically assessed the phonological evidence, ultimately attaching limited weight to it. The Court rejected the argument that the report should have been disregarded entirely.

The Court also reviewed the Appellant's claims regarding his sexuality and health conditions but noted that the tribunals found no reasonable likelihood that he was homosexual and that his health conditions did not engage protections under Articles 3 or 8 of the ECHR in the context of removal to Nigeria.

Ultimately, the Court found no legal error in the tribunals' decisions, including the application of the standard of proof and the consideration of the Sprakab report, and concluded that the appeal should be dismissed.

Holding and Implications

The Court DISMISSED the appeal.

The direct effect of this decision is to uphold the deportation order against the Appellant, confirming that he may be lawfully removed to Nigeria. The Court clarified the appropriate standard of proof applicable to nationality issues in deportation cases, distinguishing it from the standard applied to claims of persecution risk. The Court also affirmed the admissibility and limited weight to be accorded to linguistic expert evidence such as that provided by Sprakab, provided it is critically assessed and scrutinised. No new general legal principles were established beyond the application of existing case law to the facts of this case.