M.AB.N. & Anor v The Advocate General for Scotland Representing The Secretary of State for the Home Department & Anor

Factual and Procedural Background

These appeals arise from decisions of the Upper Tribunal (Asylum and Immigration Chamber) concerning two appellants who sought asylum in the United Kingdom, each relying in their respective appeals on linguistic analysis reports produced by a Swedish commercial company, hereinafter referred to as "Company A". Both appellants claimed to be nationals of Somalia and presented accounts of persecution related to their minority clan affiliations within Somalia. The Secretary of State for the Home Department relied on Company A's reports, which were based on brief telephone conversations between the appellants and unnamed individuals engaged by Company A in Sweden. The central issue common to both appeals concerns the evidential standing and admissibility of these linguistic reports.

In the first appeal, the appellant entered the UK in August 2009, claimed asylum, and was rejected by the Secretary of State. The appellant identified as Somali from Mogadishu, belonging to a minority clan. The immigration judge rejected the appellant's claim partly based on the Company A report, which challenged the appellant's stated origins and linguistic credibility. The appellant's credibility was further questioned on other grounds. The Upper Tribunal upheld the decision.

In the second appeal, the appellant arrived in the UK in November 2008 and claimed asylum the following day. She identified as Somali from Mogadishu, belonging to a minority clan. Her asylum claim was refused and she appealed. The immigration judge found her account credible except for the Company A report, which concluded that she did not speak a Somali dialect consistent with her stated origins. The report was heavily criticised by the appellant but nonetheless was relied upon by the tribunal to dismiss her claim. The Court of Session granted reconsideration with directions to disregard the Company A report, but this was effectively overturned by the Upper Tribunal, which considered itself bound by a prior Upper Tribunal decision in RB (Linguistic Analysis - Sprakab) Somalia. Both appeals proceeded to this court together due to their shared evidential issues.

Legal Issues Presented

1. Whether the linguistic analysis reports from Company A, prepared anonymously and based on brief telephone interviews, constitute admissible and reliable expert evidence in asylum and immigration appeals.
2. Whether the anonymity of the analysts and linguists involved in producing such reports is compatible with principles of fairness and open justice.
3. The extent to which the Upper Tribunal's prior decision in RB (Linguistic Analysis - Sprakab) Somalia is binding on subsequent Upper Tribunal decisions and courts.
4. Whether failure to comply with Practice Directions on expert evidence affects the admissibility or weight of such reports.
5. The proper role of linguistic expert evidence in assessing credibility and origin in asylum claims.

Arguments of the Parties

Appellants' Arguments

• The anonymity of the analysts and linguists who prepared the Company A reports violates fundamental principles of open justice and denies appellants the opportunity to challenge the credibility and qualifications of those witnesses.
• The reports fail to comply with the Practice Directions for expert evidence, lacking clear instructions, identification of the expert(s), qualifications, methodology, and a signed statement of truth.
• The analysts lack relevant qualifications in linguistics; being native speakers does not equate to expert knowledge in dialectology or linguistic analysis.
• The reports include opinions outside the proper field of linguistic expertise, such as assessments of the appellants’ knowledge of local geography and culture, which amount to inadmissible credibility assessments.
• The methodology of the reports is deficient, lacking explanation of scientific or academic standards, and the assertions of "certainty" about dialect geography are unsound and unsupported.
• The Upper Tribunal erred in treating the prior decision in RB as binding, especially as it was not a starred or country guidance case and involved materially different evidence and submissions.
• The blanket approval and weight accorded to Company A reports by the Upper Tribunal and Court of Appeal is inappropriate and undermines the fairness of proceedings.

Respondent's Arguments

• The Upper Tribunal's decision in RB, approved by the Court of Appeal, establishes that Company A's reports are generally reliable and entitled to considerable weight.
• Immigration and asylum tribunals have broad discretion and are not bound by strict rules of evidence applicable in civil courts.
• Company A’s reports are produced by a collaborative process involving analysts and linguists, and the organisation itself is treated as the expert witness.
• The anonymity of analysts is justified by concerns over their safety and independence, and the tribunal rules allow anonymity where proportionate.
• Despite criticisms, there is other material adverse to the appellants’ credibility, so any error in reliance on the reports is immaterial in the first appeal.
• In the second appeal, if the court allows the appeal, a remit for reconsideration would be appropriate due to minor credibility issues aside from the linguistic report.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed and critical examination of the linguistic reports produced by Company A, focusing on multiple aspects: the anonymity of the analysts and linguists; the qualifications and expertise of those producing the reports; the methodology employed; compliance with the Practice Directions on expert evidence; and the weight accorded to such reports by the tribunals below.

The court found that the reports failed to comply with essential requirements of the Practice Directions, including lack of clear identification of the experts, absence of signed statements of truth, and insufficient disclosure of the instructions and materials provided to the analysts. The reports were prepared for administrative rather than litigation purposes and thus lacked necessary safeguards expected of expert evidence in judicial proceedings.

The analysts lacked recognized qualifications in linguistics, and their native speaker status was insufficient to confer expert status, especially in the complex field of dialectology and linguistic geography. The court emphasized that linguistic expertise requires formal training and up-to-date knowledge, which was not demonstrated. The reports also included opinions outside the proper scope of linguistic analysis, such as assessments of the appellants' knowledge of local culture and geography, which amounted to inadmissible credibility assessments.

The court expressed serious reservations about the blanket anonymity granted to all Company A analysts and linguists, noting that anonymity deprives the affected party of the ability to challenge the experts' qualifications and credibility, and risks undermining the fairness of the proceedings. While acknowledging that anonymity may be justified in exceptional circumstances to protect witnesses, the court found no proper basis for a general or blanket anonymity order.

The court critically reviewed the Upper Tribunal's decision in RB and the Court of Appeal's endorsement of that decision. It concluded that the RB decision was limited in scope, involved different evidence and submissions, and did not address many of the substantive criticisms raised in these appeals. The Court of Appeal's approval was also qualified, particularly regarding adherence to Practice Directions and the need for proper expert evidence standards.

The court rejected the notion that the organisation (Company A) itself could be treated as the expert witness, noting that the qualifications and expertise of individual analysts are essential for assessing the reliability of the evidence. It held that the Upper Tribunal exceeded its powers in effectively giving blanket approval and weight to all Company A reports.

Ultimately, the court concluded that the linguistic reports in these appeals were flawed in multiple respects and should not have been relied upon to dismiss the appellants' claims. It emphasized the need for "anxious scrutiny" in asylum cases, especially where expert evidence is central to credibility findings and where the expert evidence lacks transparency and proper foundation.

Holding and Implications

The appeals are allowed.

In the first appeal, the case is remitted to the Upper Tribunal for reconsideration without regard to the Company A linguistic report, as there is other material adverse to the appellant’s credibility. In the second appeal, the court grants the appeal outright, as the linguistic report was the critical factor in dismissal and was fundamentally flawed.

The court's decision directly affects the parties by requiring reconsideration or overturning of prior adverse decisions based on the challenged expert evidence. No new binding precedent is established beyond the specific findings on the admissibility and weight of the particular linguistic reports and the proper application of expert evidence rules in asylum appeals.