MW v The Secretary of State for the Home Department

The appellant, who claims to be a national of Eritrea, has permission to challenge the decision of First-tier Tribunal (FtT) (Judge Kimnell) dated 30 July 2015 dismissing his appeal against the decision made by the respondent on 12 May 2014 to remove her from the UK following the refusal of her application for asylum. A previous decision by FtT Judge M R Oliver was set aside by Deputy Upper Tribunal Judge Lewis in December 2014 for lack of reasons.

The grounds which persuaded UTJ Bruce to grant permission to appeal were threefold.

First, the judge was said to have erred in rejecting the appellant’s claim to have been arrested and detained by the Eritrean authorities in November 2010 and to have fled Eritrea in consequence. The error was identified as being a failure to attach weight to the judge’s positive finding that the appellant was a Pentecostal Christian. It was pointed out that the claimed arrest and detention in November 2010 took place when the authorities found the appellant in her home praying with other Pentecostal worshippers. It was stated that the judge proffered no effective reason for rejecting the claimed arrest and detention. It was submitted that each of the three reasons given at [46] and [47] for rejecting the appellant’s account (the implausibility of her escape account; her not having an identity card in her possession; and her inconsistency as regards who was arrested) was said by the judge himself in the same paragraphs not to count against her: the judge it was said noted that the first two points had not been put to her at the hearing; and regarded the alleged inconsistency as having a satisfactory explanation. Accordingly, the only reason in effect for rejecting the core of the appellant’s claim was because of the judge’s (and respondent’s) assessment as regards her nationality. It was submitted that it was an error of law to deduce an adverse credibility finding solely from a determination of nationality.

Before proceeding further, it is convenient to set out in full what the judge said at [46] – [47]:-

We do not find this first ground made out. For one thing the grounds are inaccurate in portraying the judge as stating that none of the stated reasons are to count against her. The only point which the judge states he “will draw no conclusion” from concerned the matter of why she was not in possession of an identity card at the time of her arrest. The judge says he will draw no conclusions because she was not asked questions about this. The judge says nothing in [46] to suggest that the two reasons he relies on are not being counted against her. These reasons were that the escape account was “extremely vague” and that she had not been candid in the account she gave of the journey to the UK via Sudan. For the judge, this meant she had failed to discharge the duty on her to provide the respondent with full and complete information. These reasons were considered by the judge to be reinforced by serious difficulties as regards her claim to be a returnee from Eritrea and to have adequate knowledge about the country. Considered cumulatively, we are quite satisfied that these reasons were ones that were both open to the judge and sufficient to justify his specific conclusions. The judge did not simply rely on the difficulties as regards her claim to be a national of Eritrea.

The second ground, which forms the central part of the appellant’s submission, attacks the judge’s conclusion that the appellant is a national of Ethiopia and not as claimed of Eritrea. This conclusion was said to be flawed for essentially two reasons. It is convenient to summarise and then give our assessment of each of these reasons in turn.

The first reason focuses on the judge’s assessment in [60] that the appellant had not taken all reasonable steps to obtain evidence from the Ethiopian Embassy in Croydon that she is not Ethiopian. This was said to be wrong because in fact the responsibility to take all reasonable steps was a shared one. Specific objection was taken to the judge’s statement in [59] that “[t]here is nothing the respondent could have done to assist the appellant to make her case that she is Eritrean”. It was argued that there clearly was something the respondent could have done, as it is routine for her to engage with the Ethiopian Embassy to establish nationality at the stage when she is enforcing removal against someone considered to be a national of that country. On the authority of MM v Minister for Justice, Equality and Law Reform, Ireland, and another (Case C-277/11); [2013] 1 WLR 1259) there is a shared responsibility between the appellant and the respondent at the initial fact-finding pre-decision stage of the proceeding with respect to ascertaining the facts to establish an asylum claim (Footnote: ¹ ) . Yet in the appellant’s case the respondent had manifestly not made any inquiries relating to the appellant's nationality with the Ethiopian Embassy in London. Since the appellant had stated that she did not fear persecution in Ethiopia (only in Eritrea), there was no risk that inquiries would put her in jeopardy. Such inquiries of the Ethiopian Embassy could lawfully and reasonably have been made.

We reject this contention. In our judgement it rests on a misconception regarding the shared duty of the respondent in the initial fact-finding stage as set out in Article 4 of the Qualification Directive as analysed by the CJEU in the MM case. Article 4(1) does specify that the assessment of the relevant elements of the application for international protection must be undertaken by the Member State “[i]n cooperation with the applicant”. But this shared duty must be interpreted in light of the prior requirement in Member States such as the UK to “consider it the duty of the applicant to submit as soon as possible all the elements needed to substantiate the application for international protection”. Article 4(2) contains a list of what the elements referred to in paragraph 1 consist of. This list reads as follows:

Notably the wording of Article 4(2) refers to documentation “at the applicant’s disposal”; it does not refer to “in the applicant’s possession”. “At the applicant’s disposal” must include documentation which is not in the applicant's present possession but which is within the power of the applicant to obtain.

Nor is it just that the Directive regards the duty of substantiation of nationality to rest on the applicant (by virtue of the Member State in question - the UK - considering it the applicant’s duty to substantiate his application). When setting out the basis on which assessment of an application (what the MM judgment terms the second stage of assessing (or evaluating) the application) Article 4(3) specifically identifies the steps that have to be taken in the context of assessing nationality/citizenship as being for the applicant:

whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.”

Given that the appellant can derive no support from the Directive (or the corresponding provision of the Immigration Rules set out in paragraph 339I), there is no reason to consider departure from Court of Appeal authority on this point and in MA (Ethiopia) [2009] EWCA Civ 289 their Lordships clearly did not view the duty resting on the applicant to take reasonable steps as being in any way shared. Elias LJ stated at [50-[54] as follows:

Any other approach leads, in my view, to absurd results. To vary an example given by my Lord, Lord Justice Stanley Burnton in argument: the expert evidence might show that three out of ten in the appellant's position were not allowed to return. If that evidence were accepted it would plainly be enough to constitute a real risk that the appellant would not be successful in seeking authorisation to return. But it would be strange if by the appellant's wilful inaction she could prevent the Tribunal from having the best evidence there is of the state's attitude to her return. She could refuse to put to the test whether she might be one of the seven who would be successful. It would in my view be little short of absurd if she could succeed in her claim by requiring the court to speculate on a question which she was in a position actually to have resolved.

It is clear that the Tribunal did not approach matters in this way. In the absence of evidence as to how she would have been treated had she made a proper application, they sought to resolve the issue by considering whether someone in her position was likely to be allowed to be returned or not. In adopting this approach they were apparently approaching the matter in line with the submissions of the parties. Nevertheless, for the reasons I have given, in my judgment this means that they erred in law. They ought not to have engaged on this inquiry without first establishing that the appellant had taken all reasonably practicable steps to obtain authorisation to return. ”

The judge may have stated matters too absolutely in [59], when he said “[t]here is nothing the respondent could have done to assist the appellant make her case that she is Eritrean”. It was possible the respondent could have discussed with the appellant whether she was content for the respondent to make inquiries of the Ethiopian embassy. It was possible, if satisfied there would be no risk to the appellant, that the respondent could have made inquiries of the Ethiopian embassy herself. But there was no duty on her to do this.

The second basis identified in the grounds for attacking the judge’s approach to assessment of nationality avers that the judge was simply wrong to conclude that the appellant had not taken all reasonable steps with respect to establishing that she was not Ethiopian. It was submitted in this regard that the judge was wrong to conclude that the appellant had not acted in accordance with the principles set out in MA (Ethiopia), in that:

We are unable to agree with this submission. What the judge said at [60] is this:

The letters from the appellant’s solicitors to the Ethiopian Embassy dated 30 May and 13 June 2014 did state that they were acting for the appellant who was seeking to establish her nationality and they did give the home, place of birth and date of birth of her and her parents etc., but they were stated in the context of what was only an inquiry as to how she should go about making an application for a travel document or passport. It is said the first letter did not receive a reply, but in any event the appellant did then attend the embassy with a copy of the June letter and completed an application form for a passport giving much the same particulars. Her completed application form contains a handwritten refusal decision from the consul stating:

The appellant may not have been, as was the appellant in MA (Ethiopia) someone who clearly “misled” the embassy, but she was someone who had not taken all reasonable steps because the evidence was that her efforts to establish Ethiopian nationality (even on the assumption that she gave true particulars) were half-hearted. This is what the judge found and it was entirely reasonable of him to do so.

We would also observe that the judge did not simply consider the appellant's attempts to establish her lack of Ethiopian nationality by reference to her contacts with the Ethiopian embassy. As is clear from [60], he found her evidence to him as regards her inability to contact relatives abroad “evasive and untruthful”.

Given that we find no error in the judge’s assessment that the appellant had failed to take reasonable steps to establish that she was not Ethiopian, we see no merit whatsoever in the additional contention of the appellant in the renewed grounds that the judge’s approach assumed the appellant’s dishonesty. There were at least two possible views the judge could have taken about the appellant’s approaches and exchanges with the Ethiopian embassy: that she was seeking to help by giving them full and true particulars; or that she was not. Having considered the evidence as a whole, the judge decided it was the latter. There were no artificial assumptions either of honesty or dishonesty involved.

We turn then to the third and final ground advanced by the appellant which assails the judge’s reliance on the Sprakab report. This ground alleges that the judge should have found that the report on the appellant displayed procedural bias because at no stage did it test her understanding of Tigrinya, notwithstanding that she was recorded as having stated that she understood Tigrinya. The judge should not have accepted the respondent’s assertion that due to her claimed parentage she should have used speech displaying some features of Tigrinya, as the appellant had given a plausible account of why her speech did not display such features – principally that she was a migrant child who had been brought up by an Ethiopian nanny. Further, whilst analyst one, Catharina Karlhager, records expertise in analysing Amharic and Tigrinya, the second linguist, Petter Lovgren, records no evidence in his CV that he has expertise in either of these languages. The finding of the judge at [56] that both the experts are well qualified was therefore irrational. Finally, the judge should have taken account of the fact that the “Knowledge” section of this report accepts that the appellant had knowledge of Assab (her claimed birth place) and of Eritrea. The only point taken against her in this section of the report is limited to one, concerning her knowledge about the two ports, in Assab.

We are not persuaded that this ground discloses a material error of law either. The judge’s assessment of the appellant’s identity and nationality was based on the evidence as a whole, so that, in relation to the appellant’s claimed knowledge of Eritrea, the Sprakab report section on “Knowledge” was only part of the overall picture. In her asylum interview the appellant had failed to show adequate knowledge of Eritrea in several respects. The respondent’s refusal decision noted that she had failed to give correct answers to questions about Eritrea regarding opening hours of shops, school uniforms, traditional sports, winter months in Assab, the name of the ancient city near Assab, the ancient islands in the Bay of Assab, the second port in Eritrea, the name of the section of Assab by the shoreline and the part of the section of Assab in the centre. We are also satisfied that in assessing the significance of these shortcomings the judge took proper account of her claimed reasons for them (including her claim to have only lived in Eritrea for three short periods). We conclude that the judge’s findings as regards knowledge were entirely open to him on the evidence.

As regards the appellant’s linguistic characteristics, it was equally the case that the judge had regard not just to the Sprakab report but to the asylum interview (which included some questions asked in Tigrinya) and the appellant’s own evidence at the hearing: see especially [17] – [19], and submissions made about the Sprakab report [39].

We would accept nevertheless that the judge did rely significantly on the Sprakab report, and that if such reliance was misplaced that would give rise to a material error of law: however we do not find such reliance was misplaced.

What the judge concluded about the report is set out at [55] – [57] as follows:-

We derive from the judge’s reasoning as set out in these paragraphs the following. We begin with a point not raised by Mr Manley, but important nonetheless. The judge clearly took cognisance of what Lord Carnwath had said in MN (Somalia) [2014] UKSC 30 and made sure to establish whether the judge had committed the same error as the Upper Tribunal was held to have done in that case of underplaying the importance in every case of the Tribunal examining the report critically, and not just reading off its conclusions if expressed as a near certainty. We note also that, unlike the report considered in MN , the report in this case was by identified linguists.

We next observe that the judge gave specific attention to the appellant’s contention th at the report betrayed procedural bias. What the judge concluded in [55] was his response to the contention of the appellant’s representative at that hearing, Mr Chelvan , which he recorded at [54] as being that “the respondent had set out to prove that the appellant is from Ethiopia rather than help her establish her true nationality”. We consider the judge’s reasons for rejecting this contention was a sound one, and that the judge was right to consider that the authors of the report sought to establish the appellant’s linguistic characteristics with an open mind and did not see themselves as seeking to establish that the appellant is from Ethiopia. ( We would recall that for reasons given earlier we reject the notion implicit in the above argument that the burden of substantiation is not on the applicant, but depends on help from the respondent. )

The third point w e would make is that we see no material error in the judge stating at [56] that “[t]he two analysts who reached their conclusions are well qualified and I give due deference to their opinion”. This assessment did not assert that both were well qualified in Tigrinya and Amharic and as a statement about their qualifications as set out in their CVs , it was not incorrect. It stood as a direct answer to the submission from Mr Chelvan , recorded at [39] that “the analysts were not suitably qualified to carry out the task” and at [54] that there was a “lack of any evidence of expertise in analysing either Amharic or Tigrinya in the second linguist’s CV”. Whilst the second analyst’s CV did not demonstrate any knowledge of Tigrinya or Amharic , the report sets out a description of its methodology noting that “[l]anguage analysis cases regional and local linguistic features in phonology, prosody, morphology, syntax and lexica… ” It states that “[i]f necessary, a second opinion is requested by one or more analysts” and adds:

It is also confirms in respect of the report on the appellant that the “Examination/analysis [was] carried out by expert analysis working under the supervising umbrella of expert linguists.”

To our satisfaction the above makes clear: (i) that the expertise of language analysis goes beyond linguistic expertise in a particular language/languages (and includes, for example, knowledge of phonology, morphology, syntax, lexica); (ii) that whilst the analysts may include more than one linguist it is only necessary for there to be one linguist (and a “second opinion” can be requested by one or more analyst); (iii) it is the linguist who bears the ultimate responsibility for the quality and contents of the language analysis; and (iv) that in addition to the input of the analysts, Sprakab ensures that its analysts work under the supervising umbrella of expert linguists.

Seen in this context, the second linguist involved in the report on the appellant may not have possessed any knowledge of Tigrinya or Amharic, but he was a linguist whose qualification included basic, intermediate and specialised and advanced courses in linguistics and a basic and intermediate course in computational linguistics. Given that the report’s methodology accorded ultimate responsibility to the first analyst, linguist Catharina Karlhager, who did have specific expertise in Amharic, Tigrinya and Oromo, we see nothing untoward about the involvement of one analyst who did not.

As regards the contents of the report, the assessment made was that it was very likely that the appellant’s linguistic background was Ethiopian as she demonstrated that she had “mastered Amharic to the level of mother tongue speaker”, that the variety of Amharic she spoke was one found in Ethiopia and that “[h]er speech did not display any feature of Tigrinya which can be expected among Eritreans”. In reaching these conclusions the analysts were clearly aware that the appellant had stated, inter alia, that she had been born in Assab in Eritrea of Eritrean parents but lived in Addis Ababa in Ethiopia for seven years. They clearly reached their conclusions after a specific analysis of linguistic level, phonology, morphology and syntax and lexica (the last three with specific examples from her speech). It is also clear that the analysts reached the view they did notwithstanding that on the section on knowledge assessment the appellant was only noted to have lacked knowledge about Eritrea on one matter: “two ports (she mentioned Dahlak which is not a port but an island)”. Given that their report was a linguistic analysis, it would have been odd if they had treated the mixed conclusions of the knowledge section as determinative in any event.

In short, we reject the appellant’s contention that the Sprakab report was flawed and the concomitant contention that the judge fell into error by placing reliance on it.

For the above reasons we conclude:

The First-tier Tribunal Judge did not materially err in law.

His decision to dismiss the appellant’s appeal must stand.