Secretary of State for the Home Department v MN and KY  UKSC 30
Judgment Handed Down: 21st May 2014
The Issue on Appeal:
The Supreme Court in SSHD v MN and KY  UKSC 30 were concerned with guidance provided in a previous case of the Upper Tribunal in RB (Somalia) v SSHD  EWCA Civ 277 and how the immigration had applied the guidance in the case of MN and KY.
Background, Facts and Appellate History:
The guidance in question was set out to clarify how linguistic analysis evidence, usually provided by the Swedish commercial organisation Sprakab, which was given in anonymous form, should be treated by the tribunal. Sprakab is an organisation which employs a range of experts and produces linguistic analysis reports to suggest how certain voice recordings compare with dialects to establish a person’s language background. These are often used in asylum applications by the Home Office to try to show that a person is of the nationality or descent that they claim to be.
Indeed, in SSHD v MN and KY  UKSC 30, the key issue for the asylum seekers was whether they were Somalian. If they were genuinely Somalian and from the region they claimed to be from, their asylum applications would have been successful under the Geneva Convention Relating to the Status of Refugees and the Qualification Directive 2004/83/EC. The issue was that Home Office questioned whether they were indeed Somalian and the subsequent Sprakab report concluded that they were of a Kenyan origin. Credibility is a factor of significant importance in asylum and refugee claims by virtue of s.8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Hence, the Home Office denied the asylum claims and MN and KY appealed to the Immigration Tribunal.
The Immigration judge relied heavily on the guidance in RB (Somalia) v SSHD  EWCA Civ 277 and allowed the Sprakab report to be adduced in evidence. Ultimately, the Sprakab report was persuasive and the appeals were dismissed. On further appeal to the Inner House though, this decision was reversed with a great deal of criticism of the RB guidance and the way the Immigration judge had applied the guidance. The Home Secretary subsequently appealed to the Supreme Court.
The Supreme Court Judgment:
The Supreme Court was similarly critical of the guidance in RB and the judgment at first instance in the present case:
The Supreme Court’s Treatment of the RB Guidance
There were three main points from the RB guidance that leading judgment referred to. On the first of these, Lord Carnwath supported the guidance but on the other issues, he was critical of the wording and focus of the guidance.
- On the first point, the Supreme Court held that the Upper Tribunal was entitled to allow the Sprakab report to be adduced as evidence despite the anonymous nature. Whilst anonymous evidence requires special justification, Sprakab reports are sourced from a named organisation which bases its conclusions on the collaborative work of individuals with a range of expertise. The qualifications of the individuals were included and made available to the parties. Furthermore, the names were in fact “available to the tribunal, and could have been made known to the parties if it became necessary to do so, for example to pursue a particular line of cross-examination” (per Lord Carnwath, paragraph 43). There was no outright objection in principle to such reports being adduced anonymously.
- A second point regarding anonymity though, which was later addressed by Lord Carnwath, was that the RB guidance did not emphasise sufficiently the duty on the tribunal to take into account all the evidence and circumstances in determining whether a fair trial can still be delivered as required by justice.
- The main criticism levelled at the guidance in RB (Somalia) v Secretary of State for the Home Department  EWCA Civ 277 was related to the weight to be attributed to such reports. Lord Carnwath referred to RB’s guidance to tribunals in the following terms:
Tribunals are advised that, where there is a “clear, detailed and reasoned linguistic analysis” leading to “an opinion expressed in terms
of certainty or near certainty”, then “little more” is required to support a conclusion. This seems to me to underplay the importance in
any case of the tribunal itself examining such a report critically in the light of all the evidence, and of the reasoning supporting its conclusion
Lord Carnwath here reaffirms the principle that an expert opinion should not be determinative and that the trier of fact should weigh up the evidence, analyse it critically in light of the other evidence presented, and come to their own conclusions on the issues at hand. This resonates with the modern approach to the treatment of expert medical opinion as demonstrated in Bolitho v City & Hackney Health Authority  3 WLR 1151, which curbed judicial deference to the medical profession which had followed the Bolam test for years (Bolam v Friern Hospital Management Committee  1 WLR 583). It was made clear that the Sprakab report should not to be taken to decide the asylum seekers’ nationality or descent but the processes and conclusions of the report should be evaluated and critically viewed by the Immigration judge in order to test its validity and accuracy.
The Supreme Court’s Specific Treatment of the Immigration Judge’s Decision in the Court of First Instance
The Immigration judge’s treatment of the guidance in RB and the Sprakab report in question was criticised on two main grounds:
- The comments in the Sprakab report about knowledge regarding the country and culture, as opposed to linguistics expertise, were insufficiently supported with evidence even of the expertise or qualifications of those involved in compiling the report.
- The Immigration judge had attached too much weight to the guidance in RB and had treated it as conclusive rather than merely persuasive. He had therefore not fully considered the interests. Whilst showing sympathy for the Immigration judge in dealing with the case so soon after RB, Lord Carnwath held that the RB guidance “was no substitute for a critical analysis of the particular reports relied on in the instant cases, and of the reasoning of the First-tier tribunal on them” (paragraph 60).
Accordingly, the Home Secretary’s appeals were dismissed. Secretary of State for the Home Department v MN and KY  UKSC 30 therefore provides further clarity and guidance on the application of RB (Somalia) v Secretary of State for the Home Department  EWCA Civ 277.
Full judgment of Secretary of State for the Home Department v MN and KY  UKSC 30 available at: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0202_Judgment.pdf
Press Summary of the Supreme Court available at: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0202_PressSummary.pdf
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