ASA v The Secretary of State for the Home Department

The appellant’s case is that he is a citizen of Somalia, from Chula Island and of Bajuni ethnic origin and that as a result, he is at risk of persecution on return to Somalia.

For the reasons set out in her decision of 6 November 2019, the Secretary of State does not accept that the appellant is a Somali nor from Chula Island nor does she accept that he is of Bajuni origin. Her case is that he is a Swahili speaker from Tanzania on the basis of a report prepared by Sprakab.

The appellant challenges the Sprakab report relying primarily on the expert evidence of Prof. Nurse, who is an expert in Swahili and linguistics. A key issue is whether or not the appellant spoke Swahili with Bajuni features consistent with his claim to be from Chula.

The appellant’s appeal against the decision made on 6 November 2019 was dismissed by the First-tier Tribunal for the reasons set out in a decision promulgated on 27 January 2020. That decision was, for the reasons set out in the decision of Upper Tribunal Judge Plimmer dated 15 December 2020, set aside. A copy of that decision is annexed to this decision.

A Presidential panel has been convened in this case to give further guidance to the approach to Sprakab Reports in the light of what was said in MN and KY [2014] UKSC 30; [2014] Imm AR 981 at [51]. This was, in turn, an invitation to revisit the headnote in RB (Linguistic evidence - Sprakab) Somalia [2010] UKUT 329 (IAC).

Owing to problems associated with lockdown and COVID it was not possible to draft a decision in this appeal as quickly as had been anticipated and issues arose on which the panel required further submissions and evidence from the appellant. Accordingly, the hearing was reconvened on 24 March 2022 to hear further evidence from the appellant and submissions from both parties. Directions to that effect were issued on 18 January 2022.

In analysing the material before us we have, for the reasons set out below, revisited the Country Guidance on the Bajuni as it is part of the context for considering reports on the Bajuni language which the earlier cases refer to in several places as “Kibajuni”. We have used the phrase “Bajuni language” in preference to “Kibajuni” where relevant to be consistent with the expert evidence.

The initial hearing took place over two days in Field House, London with Prof. Nurse giving evidence via video link. In addition to evidence from Prof. Nurse, we heard evidence from the appellant, who gave evidence through an interpreter as he did at the reconvened hearing on 24 March 2022. On both occasions we also heard submissions from representatives which were in addition to their skeleton arguments and supplementary skeleton arguments.

Prof. Nurse’s evidence falls into three parts:

The starting point for this Tribunal is the observations of Lord Carnwath in MN & KY at [51]:

Before commencing on the review commended to us by the Supreme Court, we observe that the material provided to us has significant limitations.

Neither party has provided any new material direct from Sprakab about its methodology other than what is contained in the report on this appellant. We have thus had to rely to a great extent on what was said in RB bearing in mind the evidence it heard as to methodology is nearly 12 years old.

We were told that the respondent now uses Sprakab only in connection with those whose claim to identify as Bajuni and to be from Somalia is in dispute, and not in assisting in the determination of others whose identity or nationality is in dispute.

While we are aware that there are other entities which undertake linguistic analysis to determine an individual’s place of origin, we have no evidence before us relevant to the methodology that they use.

More specifically, as regards issue i) (b), familiarity with the claimed place of origin, we have no material from Sprakab on whether they are able to comment on place of origin; or, have the necessary expertise to do so. Nor in their description of their method in the report on this appellant do they refer to doing so; the analysis is described in linguistic terms. As regards ii) b), we have no information from Sprakab (or indeed any other similar entity) on this issue.

Our ability to consider point iii) is hampered by the fact that Sprakab has not, in this case, commented on familiarity with the claimed place of origin, although Prof. Nurse has done so.

Having identified the task set for us in MN, and the limitations on our ability to carry out the review due to the lack of material provided, we pause to remind ourselves that we are concerned with expert evidence. That was addressed in some detail in Kennedy v Cordia [2016] UKSC 6 where the Supreme Court observed at [48] and [49]:

As a preliminary point we must consider the entitlement of Prof. Nurse and/or Sprakab to be treated as experts; and whether their reasoning is sufficient such that weight can be attached to their conclusions. That, we consider, requires an analysis of their methodology. In the light of the observations made about Prof. Nurse in RB, we must evaluate the extent to which criticisms of his approach continue to be of concern.

We are satisfied that as a linguist (albeit he is not a native speaker) Prof. Nurse is entitled to be treated as an expert in Swahili linguistics and in the Bajuni language. He is able to opine on the morphology (word formation), syntax (word order in phrases and sentences), phonology (how words are spoken/pronunciation) and lexica (vocabulary) of both. It is not a requirement for a linguist to be a native speaker to have that level of expertise in a language to be able to analyse a paradigm against which a person’s speech can be compared.

The basis of the expertise used to generate the Sprakab report in this case is less easy to quantify. It is not doubted that the person with whom the appellant spoke to obtain the report is a native speaker of Swahili, and speaks Bajuni to mother tongue level. It does not necessarily follow that, without the assistance of a trained linguist, such a person is able to analyse in linguistic terms a person’s speech in the same way that Prof Nurse who is a trained linguist is able to do. We note that there is input from a linguist in Sprakab before a conclusion is reached and we must therefore consider Sprakab the entity as the expert. We find no proper basis to differ from the conclusions reached by the Supreme Court and other constitutions of this Tribunal that for the purposes of this case, Sprakab is entitled to be treated as an expert. As highlighted above the Secretary of State only continues to rely upon Sprakab in connection with those whose identity as Bajuni, claiming to be from Somalia is in dispute, and not in assisting in the determination of others whose identity or nationality is in dispute. There is therefore now very limited utility in reviewing or giving any further general guidance on the expertise offered by Sprakab as an entity.

We turn, then, to the methodological approach taken by both Prof. Nurse and Sprakab in this case.

The starting point is what was said in RB:

It is also relevant to consider what Sprakab says are the limits of its expertise. In its report on the appellant it states:

This is a generic statement, and it is important to note the caveats in section 1.2 as to a report’s utility in identifying domicile and the difficulties that arise when someone is brought up in a linguistic community originating elsewhere. We observe that nothing is said about the effect of someone moving during their formative years.

We remind ourselves that we are here considering the Bajuni dialect or language, which is one of many dialects of Swahili. Swahili is spoken widely in East Africa both as a first language and as second language.

The assumption underlying the Sprakab report and Prof. Nurse’s evidence is that a speaker of Bajuni can be identified as such and differentiated from users/speakers of other Swahili dialects. It is also assumed that this can be done by interviewing those who claim to be Bajuni, in effect “sampling” their speech and either comparing that with a paradigm that has been constructed from data in the case of Prof. Nurse; or in the case of Sprakab, by a native (or near native speaker) comparing his or her knowledge of Bajuni with the sample of the interviewee’s language obtained through an interview.

The methodologies employed by both Prof Nurse and Sprakab includes obtaining a sample of an individual’s speech from a short interview with them. That sample is not random; the conversation is directed towards subjects and vocabulary which are thought likely to draw out forms of speech which are distinctive of the possible origin, be that vocabulary (or lexica), syntax, phonology, or morphology.

There are difficulties inherent in that process: first, in obtaining a sample likely to demonstrate features which are characteristic of Bajuni and, second, in identifying a suitable paradigm/knowledge base in the case of Sprakab. That is because, as Prof. Nurse observed, a person’s speech may vary according to context, and with whom the person is speaking. There is nothing unusual in that; someone born and brought up in the North of Scotland but who trains and practises as a lawyer in London may well speak very differently in court from how they speak with family at home in Thurso. There may be differences in vocabulary, word formation, word order and pronunciation, that is in linguistic terminology, lexica, morphology, syntax and phonology.

Certain features of some or all of these features may indicate from her speech that a person comes from a specific part of Scotland, but a sample taken from submissions in court or in conversation with a speaker of received pronunciation is unlikely to do so. Thus, in sampling speech, for a comparison with a paradigm to be of value, techniques need to be used which would draw out particular features such as specific grammatical structures, or vocabulary. That can be achieved, for example, by asking for specific names for objects, or asking questions the responses to which would usually involve the use of certain grammatical structures. Given, however, that this is an interactive process, there is a danger, as identified by Prof. Nurse, whereby the interviewee adapts his or her language to suit that of the interviewer, either consciously or not.

Difficulties arise also with putting together a paradigm of how it is thought a person from a specific region speaks as that again requires some form of data collection or comparison against the language of a native or near-native speaker.

Prof. Nurse states that language and how people use it changes over time, and when the speakers of a particular dialect interact on an extended, daily, basis with a dialect used by a numerically greater number of speakers. We accept that, and there is no real challenge to that; as an expert linguist his view carries weight.

The primary criticism levelled at Sprakab in this case is not in how it interviews, or in its attempt to identify specific linguistic features of Bajuni in an individual’s speech (subject to caveats about the individual changing his or her speech in the context of a formal interview) but that it uses as a comparator a form of Bajuni which is fixed in time and is no longer representative. Prof. Nurse, in summary, argues that Bajuni has changed to the extent that it is in reality a dying language, younger Bajuni speaking, in effect, Swahili with a Bajuni accent and using the odd word or phrase which is specifically Bajuni rather than its standard Swahili equivalent, for example, words for family relationships, food stuffs, fish and so on. This, he opines, has arisen due to the dispersal of Bajuni people over time, and their interaction with speakers of other Swahili dialects as a result.

We turn then to considering the historical context and to the extent to which Bajuni was and is now differentiated from standard Swahili.

We bear in mind that there are three extant Country Guidance cases regarding the Bajuni:

Confusingly, SA is also reported as AJH (Somalia) CG [2003] UKIAT 94

These cases examined the basis on which the ability (or not) to speak Bajuni, referred to as Kibajuni, was indicative of an appellant being a Bajuni from Somalia and, thus, entitled to recognition as a refugee.

What, however, is meant by speaking (Ki)Bajuni is not discussed at any depth in these cases. As will be apparent from what we say below, whether a person speaks Bajuni this is not a question that can properly be answered with “yes” or “no”; the ability to “speak Bajuni” covers a spectrum of usage from those fluent in that dialect and able to conduct conversations solely in it to those who use only some words and phrases added to standard Swahili.

In LS at [14], the Asylum and Immigration Tribunal (‘AIT’) held that judges “should approach someone who claims to be a Bajuni resident of Somalia, but who cannot speak Kibajuni (let alone Somali), with great caution”.

Much of the conclusions as to the differences between Bajuni (or Kibajuni) and the extent to which they differ were taken from the evidence given by Elders and reported in joint British, Danish and Dutch fact-finding mission which visited Nairobi in September 2000. That can be seen in both LS at [6], and AM at [14]. The elders in their evidence stressed that there were significant differences between Swahili and Bajuni.

In SA, the AIT concluded [32] that

In KS the AIT saw no need to depart from SA but emphasised at [44] the need to consider the evidence as a whole.

It is now over seventeen years since KS (Somalia) and even a cursory glance at the Upper Tribunal’s decisions on Somalia AMM and others (conflict; humanitarian crisis;returnees; FGM) Somalia CG [2011] UKUT 445 (IAC)MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) and SB (refugee revocation; IDP camps) Somalia [2019] UKUT 358 (IAC) demonstrates that the situation in Somalia as a whole has changed significantly since then. These cases do not, however, address the position of the Bajuni, nor for that matter does OA (Somalia) CG [2022] UKUT 00033 (IAC)

We have found it necessary to consider the material regarding the history of the Bajuni people over the past few decades in order to give context to changes in the language used by the Bajuni as identified by Prof. Nurse.

Much of the material in LS concerning the Bajuni people was drawn from the relevant CIPU Report, which in turn was based primarily on a report of a Fact-Finding Mission produced jointly by the British, Danish and Dutch governments as a result of a mission to Nairobi, Kenya which took place between 17 and 24 September 2000. In RB the panel had regard to a Landinfo Report at [128] to [135]. It is evident from that decision and from the conclusions at [142] that there are significant differences in the evidence regarding the history of the Bajuni people even as recently as the 1970s and post-1990.

We bear in mind that this appeal was not identified as a possible vehicle for giving country guidance on this issue but it is necessary to make some findings regarding the history of the Bajuni, given the extent to which it informs how their language may have changed as a result of migration and subsequent exposure to other dialects of Swahili, spoken by the far more numerous host communities. Whilst we accept that Prof. Nurse is not an anthropologist or a geographer, he helpfully brings together from a number of sources information regarding the Bajuni Islands. His evidence is based primarily on assessments from Grottanelli, who in 1955 undertook study of the Bajuni. Essentially, the islands are for the greater part low-lying and form a continuous line stretching some 145 miles, from Kismayu in Somalia down to Pate Island in Kenya and Dodori Creek on the mainland opposite. How many islands there are, is not clear, as many of them appear never to have been inhabited and are little more than shoals (see Prof. Nurse’s The Case of the Bajunis at page 168 to 169). Indeed, even the main Somali islands are small, Koyama being 7.5 square kilometres, Chovaye 6.5, Chula 5 and Ngumi 4.5.

According to The Case of the Bajunis at page 171, the period from CE 1400 to CE 1800 was the highpoint of Bajuni fortunes. They traded with the Portuguese and others and their captains and crews sailed the entire East African coast trading although they began to decline in the 19^th to 20^th century CE.

The number of Bajunis living in Somalia appears to have been small. The only official census made by the Italian administration in 1926 indicating only 334 people in Kismayu, 301 on Chula and 172 in Koyama. Grottanelli put the whole of the Bajuni population in Somalia at not more than 2,000 in 1953 and Prof. Nurse records that through the 20^th century Bajuni individuals and families trickled down into Kenya long before the “Troubles” of the 1990s. It is stated:

“The size of the Bajuni population in Somalia in the years and decades even before The Troubles is disputed: the figure of ’perhaps 3,000 to 4,000’ (Cassanelli 1995) is the best. Allowing for an annual compound increase of some 2% and the leakage down to Kenya, Cassanelli’s figure fits reasonably well with the 1926 figure.”

As the panel noted in RB at [128] to [135], it is unclear what happened to the Bajuni Islanders in the 1970s. The discussion there revolved around how the majority of Somali Bajunis were able to speak Somali, this being attributed to them being moved to the mainland in the mid-1970s, children and young people attending schools where the instructions were given in Somali, this being apparently as part of a forced migration. Alternatively, this is part of a forced collectivisation of Bajuni fishermen but equally it is of note that this was not mentioned in the 2000 report, again a source being Bajuni elders. What does appear to have occurred is that towards the end of the 1980s and shortly before the overthrow of President Siad Barre in 1991 some of the Bajuni drifted back to their ancestral homes.

Prof. Nurse reports that following the overthrow of Siad Barre in 1991, ethnic Somalis who for centuries had lived on the mainland flooded into the Bajuni Islands and their mainland settlements with a deliberate effort to exterminate or force the Bajunis out of Somalia. It was then later that others who felt at risk or were from displaced origins were also resettled there on the islands by the UN.

What does appear to have occurred is that the Bajuni on the islands then fled south into Kenya to stay with relatives or into the refugee camps near Mombasa or North East Kenya, where forms of Swahili were the lingua franca.

Prof. Nurse’s evidence, which is not in dispute on this point, is that Swahili was originally a language spoken in coastal East Africa which has spread inland and has become the predominant language in large parts of East Africa either as a native language or as a widespread widely used second language. It is spoken in some form or other by over 100,000,000 people. He describes Bajuni as one of the older traditional coastal dialects of Swahili. As to the differences between the standards of Swahili Prof. Nurse says this:

In addition to his own analyses of the speech of Bajuni, he states that he compared these also with earlier studies classifying them in part by the age of the people who spoke and when they would have been born. He notes from these in essence that the language used by the young has changed to become less differentiated from standard Swahili. In “The Question of the Bajuni” he states:

“I personally have listened to 164 Bajuni (mainly counter-expertise) cases from Somalia which over a decade provided the ideal basis for a longitudinal study. At the start, there were older individuals who spoke Bajuni reasonably well but in recent years not one speaks traditional Bajuni anymore. (Verbal) morphology was lost first, then consistent use of phonological features leaving only lexical terms. Linguistic loss and age correlate well (see Schmidt, this volume). The asylum applicants have become younger and younger and at the same time their knowledge of traditional Bajuni has become less and less. Some speak no Bajuni, except for a few or very few lexical items. Predictably, these items refer to local matters (dances, kinship terms, food) or involved common conversational pieces (’I don’t know’, ’a few/little’, pronouns)."

Prof. Nurse explained that there are limited differences in morphology and syntax between Bajuni and standard Swahili.

Having described the forced migration of the Bajuni from 1991 onwards during the collapse of the Somali state, Prof. Nurse’s evidence that thousands of Bajuni fled south by sea:

In short, over time, the language used by the young has changed, to become less differentiated from standard Swahili. He says:

Bajuni is, in his opinion, a dying language which is only part remembered:

In his oral evidence Prof. Nurse confirmed what he had said in his written material as summarised above. Much of what he wrote in the various articles is repeated within them and in his report on this appellant. He says in respect of the appellant’s answers to the interview conducted at his (Prof. Nurse’s) behest that the appellant had got the timing to the traditional dances wrong, they were danced at harvest and when they cut down the bush but as that did not happen anymore that might explain why he got it wrong and thought they were done at weddings. He said that the Isaaq clan had not come to the Bajuni Islands until the 1990s. He said it was not known how many Bajuni Islands there are but five major inhabited ones and dozens had been named in colonial documents. As a shepherd, the appellant would not be expected to know this. Asked to comment on the appellant’s inability to name his clans, he said it was puzzling as a real Bajuni with mother and father would immediately know their clan names automatically, the talk about Kenya, Somalia and Isaaq was very confusing. He did not understand the reference to Kenya at all and that Arab is a language, not a clan.

Prof. Nurse said that there was nothing linguistic to link the appellant to Tanzania and it is his expert opinion there was sufficient evidence to say that the appellant is from Chula and speaks Swahili with a Bajuni accent. He said that it is the local knowledge that pointed at Chula. He said that the appellant may have misunderstood the question about Chula village.

Prof. Nurse said that although he did not speak Bajuni he understood it enough to analyse it and said that the appellant speaks Swahili with a Bajuni accent which was different.

Turning to the Sprakab Report, he said that the small pool of interviewers had not changed nor had the questions or conclusions. He said that he did not know how they operate but assumed it was from a general questionnaire that they adapt but that they did not ask follow-up questions and there were many things that they could ask, for example names of fish, which they rarely did.

In cross-examination, Prof. Nurse said that he had done his research in coastal East Africa, and had never lived in Somalia. Although he had been there he had not lived in the Somali Bajuni-speaking islands but had lived in the Kenyan ones. He accepted that the Sprakab analyst who had said that she had lived there was in a different position. Turning to the evidence of the sources he had used, he confirmed that one - Brian Allen is a retired religious worker who spoke Swahili but not a linguist, and whose evidence had been considered in KS. He stood by his assessment that the analysis was not long enough although he accepted that the analysis he had done was not much different in length of time. He said he was not needing to listen to sentences as the syntactic patterns were identical between Bajuni and Swahili and said it was lexical and phonetic evidence he was listening to. He confirmed that the process he had done was a questionnaire administered for an interpreter and accepted that it did not include follow-up questions as he would have needed it to be in there. He said sometimes the interviewer did not understand the question and only then were there follow-up questions. He accepted that the procedure was similar to Sprakab and the data quantity was short and ideally it would have been face-to-face. He said that his interview was short but not unreliable. He denied that the evidence of the appellant was inconclusive as there needed to be an explanation for Bajuni features which occurred in his speech and that the apparent inconsistency was what one expects in mixed speech (see [56] above) and that he is able to distinguish clearly in the recording six different words.

Prof. Nurse said that Sprakab ignored the fact that two of the words used can also be heard in Kenya but disagreed with their conclusions on lexica. It was put to him that one explanation of the appellant not knowing many Bajuni words was a generational issue but that another possibility is because he was not from coastal East Africa or from Chula. He accepted that this was possible.

Prof Nurse did not accept that the analyst from Sprakab was in a better position to analyse the appellant’s speech and he denied being an advocate rather than acting as an expert. He said he would not have expected more features of Bajuni, given the appellant’s age, in a short interview like that but he said he was very surprised that the appellant did not know fish names, coming from a fishing community, and that he had no formal education and travel would explain why he did not know the region. He was surprised that the appellant did not know the tribe on the largest island and it was impossible for the Nafali, a Bajuni clan, to be part of the Isaaq. He did expect the appellant to be able to say and name some major clans when asked. He said he did not know what the appellant had been asked as regards the names of other islands. Asked about clans, he accepted that the response regarding the mother’s clan, the giving of a nationality, was not the correct response but that one did not know when he was asked. He said that the Isaaq do not live on the island on Chula but might have raided there. He said that on balance he thought the appellant was familiar with Chula but cannot think of how he knows about it but he is deficient in some respects. He accepted it was possible that he did not grow up there but that they did not ask the question as to where he got the knowledge from.

To summarise, we have not been provided anything in the way of material directly from Sprakab and therefore we can only go by what was said in previous cases. But what we can say is this: what a linguistic analysis is doing is seeking to analyse by a relatively small but focussed sample of a person’s speech as being indicative of where that person is from, albeit that a person’s language may change if they move and live in another language community. Whether, and to what extent it is useful in the case of Bajuni is difficult to determine. Given the small number of Bajuni who existed even in the 1950s, the extent to which they were interconnected with much larger communities who speak different dialects of Swahili and given the serious upheavals that took place in the 1990s resulting in them fleeing to Kenya and the greater part then returning from exile, having lived primarily in a Swahili-speaking milieu, we accept in consequence it is important to look particularly carefully at how the process of language analysis is undertaken. As noted above, it is primarily an exercise in sampling an individual’s speech and comparing it against a norm either formed from data collected over time and from different speakers of different ages (as Prof. Nurse did) or from a native own speaker’s usage.

Prof. Nurse’s evidence is that the language used by Bajunis has changed markedly over the last 50 years and that there are few, if any, users of “pure” Bajuni left.

That, we consider, is borne out by the data Prof. Nurse has produced in the statistical tables set out in the Appendices to his report which show changes in usage of Bajuni over the years and by different age cohorts. There is no similar data from Sprakab. At best we are told that their analysts speak Bajuni but we are not told to what extent nor are we told in detail what particular features would be more indicative than others. Whilst we accept that they have used speakers of Bajuni, Sprakab relies also on linguists for the necessary expertise to analyse the morphology, syntax, phonology of those they are listening to and to be able to explain why this is different from a Bajuni speaker nor do they explain properly how they would expect a Bajuni speaker to be speaking. In short, the paradigm that they are using is unclear and there is no evidential basis shown as to how it was developed or why it reflects those of the Bajuni Island heritage.

In summary, Prof. Nurse’s evidence is that the speech of the Bajuni is now less different from Swahili than for the past, which is an entirely natural progression, given that it was spoken by a relatively small and isolated population later exposed to a bigger population speaking a similar language/dialect. We find considerable merit in his opinion, supported by the evidence, that what the Bajuni (and in particular younger Bajuni) speak today is Swahili but with certain Bajuni characteristics such as turns of phrase or specific words relating to specific cultural matters such as names of fish, dances and so on.

Neither Sprakab nor Prof. Nurse have tested whether the appellant speaks Somali. He said that he does not and therefore no conclusions can come from that.

What differentiates Prof. Nurse’s analysis from that carried out by Sprakab is that to an extent it relies on cultural and geographic features whereas Sprakab does not do so. Again, there is a problem in that in that it is difficult to decide objectively what the right answers should be.

A further problem arises from the fact that as is evident a large proportion of the Bajuni will have moved around from the islands to Kenya and possibly back, which may well have affected their speech, given the extent to which they were living in a partially Swahili-speaking milieu. We accept Prof. Nurse’s evidence that this leads to features such as mixed speech (see [56] above)

The principal defect with the report from Sprakab is that it appears to draw a false distinction between Swahili and Bajuni, given the latter is a dialect of the former. Insofar as it identifies features consistent with Swahili as spoken in Tanzania [2.2] and [2.4] it is entirely defective and unreliable in that it fails properly to explain whether those features are also common in Swahili and spoken in places other than Tanzania.

On the basis of Prof. Nurse’s evidence, which we accept, a language analysis is going to be of limited value in assessing whether somebody is a member of the Bajuni or not. That is because younger people from this area will display in their speech only a limited use of Bajuni words and phrases and unless they are specifically asked about these words including for example the names of fish, it is in the round of limited use.

There is a further problem on the specific facts of this case in that as Prof. Nurse identifies in his analysis of the Sprakab Report: it does not identify some of the Bajuni words the appellant used - the words for older brother, older sister, maize, fish, fishing; and that he had displayed Bajuni phonological features.

Although Prof. Nurse is not a speaker of Bajuni we are satisfied that he has the necessary expertise in Swahili to be able accurately to record words used and to transcribe them and compare them.

The Sprakab Report does not appear in any way to take account of how people’s language will have changed as they acquire different features in different places as they move around.

The respondent criticises Prof. Nurse’s interpretation of data on the basis that the sample is small and the criteria for selection are unclear. That may be so, but there is no evidential basis for showing that an expert would select inappropriate criteria or thought that the sample was too small. The respondent has not adduced any evidence to support this assertion.

It is also submitted that the data do not bear out the assertion that most Bajuni (and particularly young Bajuni), do not speak Bajuni as 98% demonstrated some knowledge of Bajuni.

We find little merit in that submission. The figure of 98% indicating “Some knowledge” of Bajuni, includes a large number who only use a few words (lexica) but no morphology or phonology. Some knowledge cannot properly be equated in any normal sense with “speaking Bajuni”. Further, the respondent’s criticism proceeds on the basis of speaking/not speaking Bajuni as a binary option but that is not what, properly understood, Prof. Nurse says. He identifies, as is borne out by the evidence, that there is a wide spectrum of the use of Bajuni. Older people may a greater number of features of Bajuni; younger people may just use a few words. There is a spread of usage, showing a diminution of the features with age.

Taking these factors into account and in particular the detailed evidence of Prof. Nurse, we consider that the utility of Sprakab Reports is considerably more limited in the case of Bajuni than might have been supposed, given evidence that the speech of younger Bajuni is now considerably less different from other dialects or standard Swahili. If, for example, a person showed no features or knowledge of Bajuni, then one might expect that to indicate that they are not of Bajuni origin; equally if their speech includes a greater number of features characteristic of Bajuni, particularly vocabulary and phonology peculiar to Bajuni, then it is more likely to indicate that they are of Bajuni origin. As Prof. Nurse said, Bajuni is a less well-regarded dialect, even by those of Bajuni origin and it is unlikely that non-Bajuni would have acquired this sort of knowledge. This spectrum of knowledge needs to be taken into account in assessing whether someone is of Bajuni origin. That will involve an evaluation of, for example, knowledge of places, cultural events and words specific to Bajuni cultural matters.

On the other hand, the absence of Bajuni language knowledge, features, vocabulary or phonology does not mean that a person (and particularly a younger person such as this appellant) is not or less likely to be Bajuni in the light of the factors already discussed.

One of the reasons this appeal was reconvened was to consider whether there is need to amend the Country Guidance provided in SA & Others (Minority group, Swahili speakers) [2003] UKIAT 94 (“SA”) (see [40] above).

“What is needed therefore in cases in which claims to be Somali nationals of Bajuni clan identity are made is first of all:

(1)

an assessment which examines at least three different factors:

a)

knowledge of Kibajuni,

b)

knowledge of Somali varying depending on the person`s personal history; and

(c)

knowledge of matters to do with life in Somalia for Bajuni (geography, customs, occupations etc).

But what is also needed is (2) an assessment which does not treat any one of these three factors as decisive: as the Tribunal noted in Mohamed Ali Omar [2002] UKIAT 06844, it is even possible albeit unusual that a person who does not speak Kibajuni or Somali could still be a Bajuni.

We bear in mind that the guidance provided relates to knowledge of Bajuni. We accept the evidence of Prof. Nurse that the use of Bajuni is in decline and that the speech of younger Bajuni in particular shows fewer features of Bajuni beyond a few words or phrases.

We disagree with the submission from the respondent that the guidance should not be changed. We consider that it is appropriate now to augment the guidance in the light of the comprehensive and updated evidence of Prof. Nurse generally, including that Bajuni is, in effect, dying, and younger Bajuni use fewer distinctive Bajuni features in their speech. We reject the submission that this is just a hypothesis; it is supported by his research and analysis, and the respondent has adduced nothing to disprove it.

We consider, therefore, that the guidance should be amended to take account of this. We consider that the guidance should be rewritten as follows:

It is for the appellant to demonstrate he has a well-founded fear of persecution, to the lower standard. In the case of nationality, however, he has to show on the balance of probabilities that he is a national of a particular state.

The panel considered the appellant’s oral evidence as a whole. It came to a conclusion that the appellant was not a witness of truth for the reasons set out below.

The appellant’s evidence as set out in his witness statement is that he was born on Chula, that his mother is part-Somalian and part-Kenyan as her father, although born in Somalia, has Kenyan parents. His maternal grandmother was born in Somalia of Somalian parents. The appellant also states he had always lived on the Island of Chula and left in about 2015 when he was 17 or 18 due to conflict there between Al-Shabaab and the government. His father had been a fisherman who had disappeared in 2012, his younger brother and sister had disappeared in 2013, the brother when he was out grazing livestock and his sister while she was at the madrassa. His mother sold jewellery to arrange for him to come to the United Kingdom and he had not had contact with them since.

The appellant gave evidence with the assistance of a Bajuni interpreter at both hearings. He adopted his witness statement and was asked to explain his answer in the screening interview at 1.13 to say his racial/ethnicity/tribal group was “Bajuni/Chondra”, because his father was from Chondra and his mother from Bajuni. His mother’s mother was Bajuni. He did not know where they had lived. He said that his mother had tried to explain it to him but he had not understood when she had tried to explain this to him. He said that his mother had explained to him when he was young how his father was a member of the Isaaq tribe but he did not understand it when she tried to explain it, nor did he recall the age when she had explained to him.

In 2012 the appellant was approximately 17 or 18 and said that he did not know the family history as he had not taken time to sit with his mother for her to explain this to him. He did not have the time as he was busy doing work and had things to do. But he knew he was Bajuni because his mother had told him. Asked why his mother had not sold the jewellery to help him to leave Chula earlier, he said that she did not have the idea to do so. He did not know why she thought of it at the time she did and had no contact with her since he left. He had no contact details for his uncle either.

Cross-examined, the appellant said that a lot of people on Chula did catch fish, that he knew about it and he knew some of the names of places on the island. It was put to him that he was not the sort of person (a shepherd) that Al-Shabaab would target and he did not agree with the Home Office’s position that Al-Shabaab were not present at the time of the incident. He said his brother and sister had been taken. Asked to explain the delay of two years between them disappearing and him leaving or that his mother needed to sell her jewellery (as he had said in the previous case to Judge James) he said that in 2013 she did not know of anybody to buy it and nobody was interested in it and she had no idea that she could sell it for his journey.

Asked about minority clans, he named the Darood and the Hawiye. Asked to confirm his age, he said that he had been born in 1997, not 1999, the date he had given when first interviewed as he was panicking. He said that he recalled being asked how many islands there were, explaining the difference between him saying there were five and the evidence that there were nine as he did not travel with his parents and so did not have that knowledge.

Asked about the questions put by Prof. Nurse that he had been asked to name places he would see walking around the island, he gave the name for another island, Ndoya. It was put to him that this was the wrong answer. He said that he did not understand the question. Then, when it was put to him that the question was put in Bajuni he said that he did not understand as he did not remember. He said that his answers about traditional dances were wrong and they were recorded, then he changed his evidence to the correct answer about when the Randa dance was performed.

It was put to him that he had said that his father was from the Isaaq clan, which he accepted was Somali, adding that his father’s mother was Isaaq, his father’s father was Bajuni, the Isaaq being mixed with Kenyan. It was put to him that he had said Isaaq and Arab, Prof. Nurse had said it was wrong, he said that some spoke Arabic which is why he had said that. It was put to him also that he had said his mother was half-Somalian and half-Kenyan. It was put to him that these were nationalities, not clans and he said that he did not have knowledge about that as he did not know his mother’s clan as he did not have time to sit with the family to explain it as he was running for his life. He accepted that these were the sort of things that families talked about and he said he recalled talking about the Dir and the Isaaq. It was put to him that the Dir were from Western Somaliland and that the Isaaq were from Somaliland, not Chula. He said that was not true. He said some of the leaders had come from those areas to Chula.

The appellant accepted being asked to name six types of fish but had only named two, saying that he could not remember all of them, saying that at the time he did not understand the question. Asked if he spoke Swahili, he said he spoke Swahili and Bajuni and could understand Somali. It was put to him that he knew only about eight Bajuni words and he said he knew a lot of words in Bajuni. He denied being unable to count from one to ten in Bajuni despite Prof. Nurse’s finding to that effect (AB 29).

On the second occasion on which the appellant gave evidence, he adopted his witness statement of 15 February 2022. He said that although he spoke English to a good standard, that would not help him to get a job in Somalia, and that he had no links with the Reer Hamar.

Cross-examined about his parents’ backgrounds, the appellant said that his parents did not tell him where they were from, then that they were from Somalia but he had not been told in which part, and that he had been born in Chula. He said that he knew they were probably Bajuni. It was put to him that he had said in his witness statement that they were not Bajuni. He replied that he was born in the area which is why he thought he was Bajuni. Questioned further, he said that he did not remember making the statement that they were not Bajuni; all he knew was that the lived and grew up in the Bajuni area. He said his father was pure Bajuni as he speaks the language and that his mother was a mixture.

We take it as axiomatic from the country guidance cases on Somalia and indeed all the background evidence, that the clan is of great importance in Somalian society. As Prof. Nurse says:

“Most anomalous are his [the appellant] answers to the questions about clans. Asked about his father’s clan he replies Isaaq and Arab. Asked about his mother’s clan he replies half-Somali half-Kenyan. He says his own clan is that of his father. Asked about clans on Chula, he says Dir, Isaaq, Darood, Hawiye; Bajuni who grow up in a Bajuni area with two Bajuni parents can state their clan and the clans of their parents but he cannot: he says Isaaq (a Somali clan, Kenyan Arab). Asked to name the clans in Bajuni Chula he reels off the major Somali clans. The nearest equivalent in the UK would be to ask a Highlander in Scotland called Macdonald for the surnames of his parents and he replies Smith, Jones and Robinson and asked for the names of the clans in the neighbourhood and he gave the same answer.”

We find the appellant’s evidence about where is parents were born and whether they are Bajuni or not to be riddled with inconsistencies as set out above, and we find his explanations for not knowing where they originated to be evasive; and, further, to be contradictory to what he said previously (see Prof. Nurse’s comments above). No proper explanation has been provided for these.

We find that the appellant’s responses when asked about his inability to name clans were evasive. We find it wholly incredible even taking into account the appellant’s lack of education and literacy that he would not have had the opportunity to know about the family history as claimed. His answers are, we consider, extraordinary in the context of a person claiming to be Somali and unexplained.

We accept that the appellant has demonstrated some knowledge of Chula as particularised by Prof. Nurse. He lacks knowledge of local lands and fish, could not name nearby islands and was unclear as to what traditional dances were performed. For the reasons we have already provided, we do not find that the absence of Bajuni language features or knowledge necessarily undermines his claim to be Bajuni. However, this appellant claims to have been born and grown up on Chula to the age of 17. He has not claimed displacement prior to this. In his particular circumstances we find his limited knowledge of Chula surprising.

Although we give the appellant some credit for accepting in oral evidence on the first occasion that some of his earlier answers were incorrect, even his own expert viewed his lack of knowledge as egregious and anomalous. His basic knowledge of his clan identity was either absent or incredible and this infected the remainder of his evidence.

Taking all of these factors into account, and viewing the evidence as a whole, we find that the evasions and contradictions are so serious and go to the core his claim, that his evidence is devoid of any shred of credibility and that we simply cannot rely on what he says unless it is undisputed or supported by other evidence.

We turn, then to applying the guidance set out above to the facts of this case. In doing so we have considered the evidence as a whole.

The appellant has, we accept, shown some knowledge of the Chula area and Bajuni customs. We attach some weight to Prof. Nurse’s report that the appellant may well be from Chula despite strong evidence to the contrary. But that must be balanced by Prof. Nurse’s comments about the anomalies and in his inability to be consistent about straightforward matters.

We note from the Sprakab Report and from Prof. Nurse’s evidence that the appellant has grown up in a milieu where Bajuni or some form of that is spoken, but where we do not know. We note from Prof. Nurse that there is no evidence that Bajuni is spoken in Tanzania and for the reasons given above we consider that the comments in the Sprakab Report placing the appellant in Tanzania are defective.

We find that, viewing the evidence as a whole, it is more likely than not that the appellant is Somali and has had some connection with Chula, be that through relatives or otherwise, but we are not, given the type of knowledge he does not have, satisfied that he grew up there. We consider that the appellant has failed properly to explain his background and has not been open with us about this or indeed about his claimed inability to speak Somali. We consider it reasonable to infer from his answers and claim not to speak Somali that he is hiding the truth. We do not accept any claim that he has no family in Somalia and we find he is not a Bajuni.

We accept that the appellant is Somali. But, contrary to the assertions he has made, he has not been able to credibly demonstrate that he does not speak Somali or that he has no family in Mogadishu; or, that he does not know if his family are still living in Chula or whether they have fled and he has no means to contact them. We note his assertions that he never sent remittances back to Somalia, has no contacts within the Somali community in the UK and would not be able to rely upon any connections from the Somali community in the UK on return to Somalia and would have no one to rely upon for remittances” were he to be returned. As noted above, the appellant’s evidence on family and his origins is wholly lacking in credibility, evasive, and indicative that he has something to hide.

In the circumstances we find, applying the guidance in MOJ and OA (Somalia), that the appellant has not shown that he would be at risk of persecution on return to Mogadishu or that would face ill-treatment of sufficient severity to engage article 3.

We reach these conclusions on the basis that he has not shown us he is anything other than an ordinary healthy civilian, nor has he shown us he is from a minority clan. Nor that he has no links to Mogadishu which he could use to access a livelihood. He is clearly a healthy, resilient and resourceful young man who would be able to support himself in Mogadishu in the light of the current country conditions there. He has not satisfied us that he would be destitute nor that he would be forced to live in conditions which would engage article 3.

Accordingly, for these reasons, we dismiss the appeal on all grounds.

The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.

We remake the decision by dismissing the appeal on all grounds.

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant/respondent is granted anonymity.