RM (Sierra Leone) v The Secretary of State for the Home Department [2015] EWCA Civ 541

Case No C5/2013/2819

[2015] EWCA Civ 541

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 21 st May 2015

Before

LORD JUSTICE KITCHIN

LORD JUSTICE UNDERHILL

LORD JUSTICE CHRISTOPHER CLARKE

Between

RM (SIERRA LEONE)Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr David Chirico (instructed by Wilson Solicitors LLP) for Appellant

Mr Robert Palmer (instructed by The Treasury Solicitor) for Respondent

Hearing Hearing date: 19 March 2015

Judgment

Lord Justice Underhill :

INTRODUCTION

[1]This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dismissing an appeal against a decision of the First-tier Tribunal, which in turn dismissed the Appellant’s appeal against the refusal by the Secretary of State to revoke a deportation order. Mr David Chirico appeared for the Appellant and Mr Robert Palmer for the Secretary of State. Both counsel argued the case very well.

THE APPELLANT’S IMMIGRATION HISTORY

[2]The Appellant is aged 43. He arrived in this country, using a false passport, on a flight from Lagos in April 1999. He said that he was a national of Sierra Leone, having been born and brought up in Freetown. He claimed asylum on the basis that he feared persecution there because of his tribal affiliation. His account was that he had in fact left Sierra Leone at the age of 15 and gone to live in Lagos. He said that he went back in December 1998 to visit his parents, but he found that they had been murdered because of their tribal affiliation: he said that he feared the same fate if he stayed and had returned to Nigeria at once.

[3]The Appellant’s claim for asylum was refused in March 2003. He appealed to the Immigration Appellate Authority. His appeal was dismissed in March 2004. The adjudicator found many implausibilities and inconsistencies in his account, saying that he was not a credible witness in relation to “all the core aspects of his story”.

[4]In January 2006 the Appellant was convicted in the magistrates’ court for use of a forged passport and sentenced to eight months’ imprisonment. He was recommended for deportation.

[5]Shortly before the Appellant’s release, on 15 May 2006, his then solicitors, Abbott & Co., wrote to the Home Office asking that he should be returned not to Sierra Leone but to Nigeria. They said that his mother was Nigerian and that he had acquired Nigerian citizenship during the many years that he had lived there.

[6]Following his release the Appellant absconded, but in April 2007 he was detected trying to leave the country using a forged passport. He was in due course convicted and sentenced to fifteen months’ imprisonment.

[7]In October 2007, while the Appellant was still serving that sentence, the Secretary of State made a decision to deport him, and in the following month he was transferred to immigration detention in Harmondsworth.

[8]The Appellant appealed against his deportation on the basis that he was a homosexual and would be persecuted for his sexuality if he was returned, as the Secretary of State at that stage apparently intended, to Sierra Leone. He also claimed that his deportation would involve a breach of his rights under articles 3 and 8 of the European Convention of Human Rights: he relied on the facts that he had been diagnosed with HIV and that he was suffering from mental illness. As regards the latter, a report from Professor Katona diagnosed a major depressive disorder with psychotic features and post-traumatic stress disorder. He was said to pose a suicide risk. It was said that on account of his mental illness he suffered from memory loss.

[9]The appeal was dismissed by the Asylum and Immigration Tribunal in June 2008. It was accepted that homosexuals are ill-treated in Sierra Leone; but the Tribunal was doubtful whether the Appellant was in truth a homosexual, and in any event it found that even if he was he would not behave in a way which would put him at risk if he were returned to Sierra Leone (the decision pre-dated HJ (Iran) v Secretary of State for the Home Department

[2010] UKSC 37

[2010] 1 WLR 1934

). The asylum claim was accordingly rejected. The Tribunal did not find that the Appellant’s problems with either his physical or his mental health were sufficient to engage article 3; and it found that although his deportation would interfere with his right to a private life such interference was proportionate.

[10]A deportation order was made on 17 September 2008. The following week the Appellant was taken to an interview at the Sierra Leone High Commission in order to obtain travel documents. However, the authorities there declined to accept that he was a national of Sierra Leone and said that they thought he was probably from Nigeria or Ghana.

[11]There followed a long delay, apparently because of the Appellant’s mental ill-health. He was transferred from detention to hospital in October 2008, and though he was returned to detention after ten weeks he remained unwell.

[12]Apparently because of the impasse about the Appellant’s nationality UKBA sought a “linguistic analysis report” from Sprakab, a Swedish body which provides opinions on a person’s country of origin on the basis of a conversation with an expert analyst: details of its modus operandi appear in the case-law referred to below, and I need not go into them here. The conversation took place on 4 August 2009. Sprakab sent its report on 7 August, expressing the opinion that the Appellant spoke English of a kind not found in Sierra Leone but characteristic of Nigeria or Ghana.

[13]Armed with that opinion, the Secretary of State concluded that the Appellant was, as his solicitors had asserted two years previously, of Nigerian nationality and that he should be returned to Nigeria. An approach was made to the Nigerian High Commission, who conducted a telephone interview with the Appellant on 25 August 2009 and on 27 August provided an emergency travel document. The document states on its face that the Appellant “has stated that he is a Nigerian” and that the responsible official has no reason to doubt that statement. The Appellant’s solicitor has since reported that he denies ever having spoken to the High Commission.

[14]The Appellant’s deportation did not proceed at that point: again, there were problems with his mental health, and he also issued judicial review proceedings. He was eventually released from detention, following a court order, on 4 November 2010. He had been detained, apart from the time that he was in hospital, for three years.

[15]On 23 December 2010, the Appellant’s solicitors, T.V. Edwards LLP, wrote to the Secretary of State seeking to make a fresh claim for asylum or for the right to remain under articles 2, 3 and 8 of the Convention, and also applying under paragraph 390 of the Immigration Rules for the revocation of the deportation order made in September 2008. The basis of the claim was stated as follows:

“These fresh submissions are made on the following bases: 1. that removal of our client from the United Kingdom to Nigeria would be in breach of the Secretary of State’s obligations under the 1951 Refugee Convention as our client has a well-founded fear of persecution on account of his sexuality; and 2. in light of our client’s sexuality as well as his ongoing physical and mental health needs, that removal of our client would be in breach of his rights under Articles 2, 3 and 8 European Convention on Human Rights (ECHR) Although these issues have previously been considered and rejected by the Secretary of State in respect of [RM], they stand to be reconsidered in light of the following fresh evidence that has not previously been considered: 1. recent case-law in respect of asylum claims made on the basis of fear of persecution due of sexuality. 2. the risk upon return to Nigeria due to persecution as a result of his sexuality; and 3. up-to-date medical evidence regarding [RM’s] mental and physical health.”

[16]By letter from UKBA dated 11 March 2011 the Secretary of State accepted the representations as a fresh asylum and human rights claim but refused it. She also refused the application for the revocation of the deportation order. The letter is lengthy and somewhat repetitive. It can be sufficiently summarised for present purposes as follows:(1) At paras. 38-57 consideration is given to the claim based on the Appellant’s sexuality. The Secretary of State accepts that “homosexuality is illegal in Nigeria and that it is socially repressed” but she does not accept that the Appellant was homosexual. That point is made again at paras. 65-66 and 69.

(2) Para. 58 reads:

“With regard to your client’s claim that he should be returned to Sierra Leone, we have noted that the findings of your client’s language analysis test indicate that your client is most likely to be from Nigeria. Furthermore the Sierra Leone High Commission do not accept that your client is a citizen of that country. However, your client maintains that he is from Sierra Leone. In this regard it is noted that the tribunal in 2008 found your client to be lacking in credibility and your client’s behaviour and accounts since that time tend to confirm this view.”

That is oddly expressed, since the Appellant had made no “claim that he should be returned to Sierra Leone”: on the contrary, T.V. Edwards had made clear that although their submissions were addressed to his risk on return to Nigeria, because that was where the Secretary of State was intending to deport him to, they believed that he would be at equal risk in either country. But it is nevertheless clear, although not quite explicitly stated, that the effect of the passage is that the Secretary of State believed that he was a Nigerian national. (3) At paras. 83-107 the Secretary of State considers and rejects the Appellant’s case that the inadequacy of available treatment in Nigeria for HIV and mental illness would mean that his return would involve a breach of his rights under article 3. (4) At paras. 108-128 the Secretary of State considers and rejects the Appellant’s case under article 8. That is the decision which gives rise to the present proceedings.

THESE PROCEEDINGS

[17]The appeal form sets out the Appellant’s grounds of challenge to the Secretary of State’s decision only very briefly. In box 1, which asks if the appellant disagrees with “the Home Office’s interpretation of the situation in your country”, he says:

“The appellant maintains that he is from Sierra Leone and the situation in that country is not addressed in the refusal letter. He does not dispute the SSHD’s interpretation of the homophobia that is prevalent in Nigeria.”

In box 3 he asserts that his claim is credible: it is clear that the reference is to his claim to be a homosexual. In box 4 he says that he “would be at risk due to his sexuality”.

[18]The Appellant’s appeal was heard by a Tribunal comprising FTTJ Campbell and Ms J Endersby on 7 February and 22 March 2012. The Appellant was represented by Mr Chirico. There was an extensive bundle of documents before the FTT and a draft witness statement from the Appellant, accompanied by a careful witness statement from his solicitor explaining that the statement was based on her notes of several meetings with him but that his mental health problems made it impossible to finalise it with him. The Appellant attended the hearing, but he did not give evidence, again apparently because of his mental illness. In that connection I ought to record that the Tribunal paid a particular tribute to Mr Chirico and his solicitors (who were by now Wilsons LLP, who remain his current solicitors) saying that they had given the Appellant “exceptional professional service” in circumstances rendered more challenging by his illness.

[19]The Appellant’s case as advanced by Mr Chirico in the Tribunal is fully and carefully set out at paras. 57-67 of the Reasons, which reflect his skeleton argument. I need not summarise those paragraphs in full. The essential points argued were(a) that the Appellant was not a Nigerian national (and thus in practice, though this was not what mattered, that he was from Sierra Leone);

(b) that he was homosexual;

(c) that it followed from (b), in the light of the accepted evidence about the treatment of homosexuals in Nigeria, that he would be at risk if deported there;

(d) further, that if he were returned to Nigeria there would be a risk of self-harm, because of his mental ill-health, sufficient to engage article 3; and

(e) that there would be a breach of his article 8 rights. I should note two points in particular: (1) In support of point (a) the Appellant adduced a report from Professor Peter Patrick, of the Department of Sociolinguistics at the University of Essex, which was critical of the methods and findings of the Sprakab report. I return to this below. (2) One of the factors listed in the skeleton argument as relevant to the article 8 claim (but not to the asylum or article 3 claims) reads:

“The fact that, in any event, [the Appellant] has no entitlement to remain in Nigeria, and is likely to find himself, again, living on society’s margins, illegally, and entirely without any entitlement to even the most basic healthcare or material support; and/or the risk of forced refoulement to Sierra Leone.”

I will refer to this as “the marginalisation/possible refoulement point”.

[20]I need not for present purposes summarise the submissions made by the Home Office Presenting Officer, Mr Duffy, save to note that when Mr Chirico observed that “there was no point considering in detail the country evidence regarding Sierra Leone, as the Secretary of State proposed to return the appellant to Nigeria”, the Tribunal records that he “agreed that this was the only country of return”.

[21]It is necessary to identify the reason why the parties and, following them, the Tribunal regarded it as necessary to determine whether the Appellant was a Nigerian national. It was not a necessary basis for the power to deport him to Nigeria: paragraph 1(1) of Schedule 3 to the Immigration Act 1971 provides that a person subject to a deportation order may be removed not only to a country of which he is a national but also to “a country or territory to which there is reason to believe that he will be admitted”, and it was plain that the Appellant would be admitted to Nigeria since the High Commission had issued travel documents. Nor was it his case that his alleged non-Nigerian nationality would in itself expose him to persecution: as we have seen, his case was that he would suffer persecution as a homosexual, which had nothing to do with his nationality. The only respect in which his nationality seems to have been relevant to his case as advanced was as the basis for the marginalisation/refoulement point in relation to article 8: see para. 19

(2) above. But Mr Chirico told us that there had been no focused discussion of the question, and that both parties had simply accepted in the Tribunal that if the Appellant did not have Nigerian nationality he could not lawfully be returned there.

[22]The Determination and Reasons were promulgated on 25 May 2012. They are impressively clear and thorough. The Tribunal dismissed the appeal. At this stage I need only give an outline of its reasons: (1) It addressed first the question of the Appellant’s nationality; paras. 77-86. At para. 77, having recorded the Appellant’s contention that he was a national of (only) Sierra Leone, it said:

“The Secretary of State has concluded that he is a national of Nigeria and that he may be returned to that country. If we are to find against the appellant on the question of his nationality, we must do so having assessed the evidence and having reached a conclusion that he is Nigerian on a balance of probabilities (Hamza [2002] UKIAT 05185).”

It then proceeded to review the evidence. It gave its conclusion at para. 86, as follows: “Taking into account the appellant’s particular immigration history, giving weight to the letter from Abbott & Co. as reliable evidence of the appellant’s instructions in May 2006 and taking into account also the apparently firm conclusion reached by the Sierra Leone authorities that the appellant is not a national of the country and the decision of the Nigerian authorities to issue a travel document, we conclude, on a balance of probabilities, that the appellant is indeed a national of Nigeria. We cannot state with any confidence when he acquired such nationality but we think it highly likely that it occurred in the many years he spent there, including his young adulthood, and that this may well have provided the means to enable him to leave Nigeria to return to Sierra Leone briefly and then to return Nigeria before beginning his journey to the United Kingdom. In reaching this conclusion, we disbelieve the appellant’s claim that he is not a citizen of Nigeria, and that he was able to enter, leave and re-enter the country only with unofficial assistance from others.” (2) It is important to note that, consistently with the Tribunal’s self-direction in para. 77, this finding as to the Appellant’s nationality was explicitly made on the balance of probabilities. I should also note that in the light of the criticisms of Professor Patrick the Tribunal decided that it should place no weight on the Sprakab report: see para. 85. (3) It concluded that it was not reasonably likely that the Appellant was homosexual. (4) It found that his physical and mental ill-health was not such that his removal to Nigeria would infringe his rights under article 3 or

article 8 of the Convention

[23]The Appellant sought permission to appeal to the Upper Tribunal on various grounds, including that the FTT had been wrong to decide the question of his nationality on the balance of probabilities rather than by reference to the lower standard of whether he had shown a reasonable likelihood that he was not a Nigerian national. The grounds of appeal drafted by Mr Chirico assert at para. 7 (i) that the FTT had had to decide whether if the Appellant was not a Nigerian national he might face ill-treatment “e.g. by onward refoulement to Sierra Leone or because he will not be accepted as a Nigerian national”. That is evidently the marginalisation/possible refoulement point: it is re-stated in the skeleton argument in the context of his article 8 claim, in the same words that I have quoted from his skeleton argument in the FTT.

[24]The Appellant was granted permission to appeal. At a hearing on 9 October 2012, at which he was represented by Ms Marisa Cohen of counsel, UTJ Freeman found that the FTT had erred in law and that there would accordingly have to be a re-hearing. The error of law related to the standard of proof employed by the FTT. The relevant passage from

Judge Freeman’s ruling reads:

“2. Permission was given solely on the question of the burden and standard of proof of nationality in the particular circumstances of the case. The Home Office asserted, on the strength of a SPRAKAB report, that this appellant is from Nigeria, and the panel correctly said they had to establish that on the balance of probabilities. However they also gave this as the standard by which the appellant needed to show that he came from Sierra Leone, so as to establish that he faced a well-founded fear of persecution there as a homosexual. 3. Mr Walker [the Home Office Presenting Officer] has conceded that this was an error of law, which requires a re-hearing on this point. It may well be, as the Home Office have maintained in their reply, that there are only two alternative positive findings possible: either this appellant comes from Sierra Leone, or from Nigeria. However, on asylum/article 3 all he needs to show is a reasonable likelihood that he does not come from Nigeria, and does come from Sierra Leone, so that on removal he would have to face the persecution he says he fears there.”

[25]Thus the issue on which a re-hearing was directed was whether there was “a reasonable likelihood that [the Appellant] does not come from Nigeria”. The phrase “come from” is, with respect, rather loose; but it is clear that what the Judge meant, and the parties understood, by it was whether the Appellant had Nigerian nationality (and in fact he does elsewhere refer to the issue as “the nationality point”). The appeal to the Upper Tribunal, as to the FTT, seems to have proceeded on the basis that if the Appellant was indeed not Nigerian his deportation would not be lawful, but again without any explicit identification of why that was so. I note, however, that Judge Freeman seems to have thought that the Appellant was asserting that if he did not have Nigerian nationality he would face persecution in Sierra Leone (see the final words of para. 3): this can only be on the basis that he would be refouled there by the Nigerian authorities, but even so it remains unclear what kind of persecution he had in mind.

[26]The further hearing took place before Judge Freeman on 26 June 2013. The Appellant was represented by Mr Chirico. By a Determination and Reasons promulgated on 2 August 2013 the appeal was dismissed. At paras. 3-4 the Judge noted by way of preliminary that in his view the concession by the Presenting Officer at the previous hearing that the FTT had erred in law as regards the standard of proof was wrong, in the light of the subsequent decision of this Court in Abdullah v Secretary of State for the Home Department

[2013] EWCA Civ 42

. However he went on to consider the issue of the Appellant’s nationality in accordance with his previous ruling. I shall have to return to the details of his reasoning in due course, but at this stage I need only say that he concluded that, even if the Appellant had only to show a reasonable likelihood that he was not returnable to Nigeria, he had failed to do so. In reaching that conclusion he relied not only on the letter from Abbott & Co. and the attitudes of the Sierra Leonean and Nigerian High Commissions but also – unlike the FTT – on the Sprakab report.

THE APPEAL

[27]The Appellant sought permission to appeal on two grounds. Permission was eventually given, by Laws LJ, on only one of those grounds, relating to the Sprakab evidence. That ground reads:

“The Upper Tribunal materially erred in law in attaching any weight, or any material weight, to the SPRAKAB report relied upon in this case both (i) by treating the authors of the SPRAKAB report as experts in the field of linguistic analysis; and (ii) by having regard to irrelevant considerations and failing to have regard to relevant considerations when assessing the particular report before it.”

[28]At the time that the application for permission to appeal was made there was arguably inconsistent case-law about the admissibility of evidence from Sprakab. In a case called RB (Somalia) v Secretary of State for the Home Department

[2010] UKUT 329 (IAC)

the Upper Tribunal had heard full evidence about Sprakab’s methodology, including the training and supervision of its analysts, and sought to give general guidance; its conclusion was that its reports were generally admissible, subject to certain safeguards. The decision of this Court broadly upholding the Upper Tribunal’s approach –

[2012] EWCA Civ 277

– was relied on by Judge Freeman in the present case. However, in a case called MN v Secretary of State for the Home Department

[2013] CSIH 68

the Inner House adopted a more restrictive approach. In giving permission in the present case Laws LJ said that he was doing so, “with considerable misgivings”, because of “the possible impact of MN”. As it has turned out, any conflict between the decisions in MN and RB has been resolved by the decision of the Supreme Court on the further appeal in MN – Secretary of State for the Home Department v MN and KY

[2014] UKSC 30

[2014] 1 WLR 2064

– to which I shall have to refer below.

[29]There is no Respondent’s Notice, but Mr Palmer in his skeleton argument submitted that there were two “short answers” to the appeal which rendered it unnecessary to consider the Upper Tribunal’s reliance on the Sprakab report. The first was that, as the Judge had, albeit belatedly, noted, it was clear from the decision in Abdullah that the FTT had in fact applied the correct standard of proof. The second was that even if Judge Freeman had discounted the Sprakab report the remaining evidence before him could still not have supported the Appellant’s case that he was not returnable to Nigeria. Mr Chirico did not originally object to those points being taken, though as regards the first he took a different stance in reply: see para. 38 below.

[30]I will consider first Mr Palmer’s “short answers” and then turn to the actual ground of appeal. A. THE STANDARD OF PROOF

[31]I should start by summarising the effect of the authorities to which we were referred.

[32]In Hamza, to which the FTT referred (see para. 22 (1) above), the IAT made observations about the situation where an applicant who is due for removal to country A seeks simultaneously to claim asylum on the basis that he is a national of country A and fears persecution there and, if that is disbelieved, that he is a national of country B and ought on that account not to be removed to country A. In that connection it said that it would be helpful if the adjudicator made definitive findings on both alternative cases, but it observed (at para. 12) that if he did so: “… he must bear in mind that if he is going to make a positive finding against the Appellant, then he must do so not on the asylum standard, but on a higher standard which would be the balance of probabilities”.

[33]In MA (Ethiopia) v Secretary of State for the Home Department

[2009] EWCA Civ 289

Stanley Burnton LJ said, at para. 78:

“There was debate before us as to the standard of proof to be applied in a case in which a person contends that he is unable to obtain in this country the passport or emergency travel document that is her right as a national of her country of origin. In my judgment, it is not the ‘real risk’ test. The ‘real risk’ test applies to the question whether the fear is well-founded: it is well-founded if there is a real risk of persecution. Thus a person who is unwilling to return owing to a fear that is so justified is entitled to refugee status. Inability to return is not qualified in the Convention by the words ‘owing to such fear’, and ... I see good reason why it is not. Inability to return can and should be proved in the ordinary way, on the balance of probabilities.”

That was in the context of a case where it was said that the authorities in the state to which the appellant was to be returned (Ethiopia) would not recognise her as a national (since she was of Eritrean origin) and that she would suffer persecution accordingly. He went on to give reasons for that conclusion which I need not set out. Mummery LJ agreed with that judgment.

[34]In Abdullah, to which I have referred at para. 26 above, the Secretary of State sought to return the appellant to Saudi Arabia. The appellant accepted that he was born in Saudi Arabia but said that he was a bidoon and if returned there would be treated as stateless and subject to persecution. The Upper Tribunal held that there was no reasonable likelihood that he was a bidoon – i.e. it explicitly applied the lower standard of proof; but it did hold that there was a reasonable likelihood that he was a Palestinian and thus not a Saudi national. That meant, at least arguably, that he would not in practice be returnable to Saudi Arabia, because Saudi Arabia would not admit him; but it was not said to mean that, if he were in fact returned, he would suffer persecution. In this Court he relied on the tribunal’s finding of, in effect, non-returnability as the basis of an argument that he should be given leave to remain under article 8. As to that, Sir Stanley Burnton said, at para. 16:

“I do not think that the Senior Immigration Judge did find that the Appellant is of Palestinian origin and in consequence unable to return to Saudi Arabia, and certainly did not do so to the applicable standard of proof. In my judgment (with which Mummery LJ agreed) in MA (Ethiopia)…) at paragraph 78, I said that, in contrast to the question of risk of persecution on return, inability to return is to be proved on the balance of probabilities. The Senior Immigration Judge rejected the Appellant's claim that he would be persecuted if returned to Saudi Arabia. In these circumstances it was and is for the Appellant to prove on a balance of probabilities that he is a Palestinian and for that reason unable to return to Saudi Arabia. All that the Senior Immigration Judge found was that was a ‘reasonable degree of likelihood’ that he is of Palestinian origin.”

[35]What emerges from those cases – and would in truth be clear enough even in the absence of authority – is that what standard of proof applies to the question of an applicant’s nationality depends on the legal issue to which it is relevant. If it is relevant to whether he will suffer persecution (whether by reference to the Refugee Convention or article 3), the lesser standard will apply. But if it is relevant to some other issue – such as whether it is in fact possible in practice for him to be returned, and any rights that may accrue if it is not – the standard is the balance of probabilities.

[36]That then brings us back to the question discussed at para. 21 above, namely for what purpose (or purposes) the Tribunal was obliged to determine the Appellant’s nationality. As we have seen, this does not seem to have been explicitly identified at the time. However, I can see no basis on which it was relevant to the issue of risk of persecution. The risk that the Appellant asserted that he would be persecuted as a homosexual did not depend on whether he was a Nigerian national; and in any event the Tribunal concluded that there was no reasonable likelihood that he was a homosexual. Even if he were entitled to rely on the possibility of his refoulement to Sierra Leone, that goes nowhere because there was no evidence that in the event of such refoulement he would face persecution. There was no attempt to revive the claim dismissed in 2004 that he would be persecuted in Sierra Leone because of his tribal affiliation; and even though an earlier tribunal had accepted that homosexuals are persecuted in Sierra Leone that is immaterial in view of the Tribunal’s finding about his sexuality. The same goes for the suggestion that as a non-national the Appellant would be marginalised in Nigeria, which was raised only as supporting his case under article 8 (to which the ordinary standard of proof applies). I am sure that the Tribunal did not proceed on the basis that the Appellant’s nationality was relevant to any aspect of his case based on persecution. At para. 77 of the Determination it directed itself on the standard of proof by reference to the decision of the IAT in Hamza, which explicitly distinguishes between “the asylum standard” and the balance of probabilities. It clearly thought that it had to decide the question of the Appellant’s nationality because, if he was not Nigerian, that would be a free-standing obstacle to his being returned there.

[37]That being so, I believe that Mr Palmer is right in his submission that there was no basis on which the Upper Tribunal should have overturned the decision of the FTT. It follows that this appeal should be dismissed.

[38]In his reply, having heard how the argument developed, Mr Chirico said that it differed from what could have been understood from Mr Palmer’s skeleton argument. If the point had been one of pure law there would have been no prejudice in it being raised now; but it appeared to turn on how matters had been put in the FTT, which it was not now possible safely to reconstruct, and it would be unfair in those circumstances to allow the Secretary of State to go behind her concession. If I believed there were a real risk of unfairness to the Appellant I would accept this objection, but I do not. It is clear from the materials before us that there was no evidence before the FTT of risk to the Appellant if he were returned to Nigeria as a non-national and that the case had not been put that way.

[39]Mr Chirico accepted at the start of his submissions that if the Court were against him on either of Mr Palmer’s two “short answers” it would be unnecessary to consider the other issues. I will nevertheless do so, partly at least in case the Appellant or those advising him remain concerned at the fairness of allowing the Secretary of State to go behind her concession that there had been an error of law in the FTT. But I will do so rather more shortly than if they had been the decisive points in the appeal. B. WOULD THE DECISION HAVE BEEN THE SAME WITHOUT THE SPRAKAB REPORT ?

[40]Mr Palmer argued that even without the Sprakab report the only conclusion possible on the other evidence that was before either Tribunal was that the Appellant was a Nigerian national. He had come to this country from Nigeria and even on his own account had lived there throughout his adult life. His own solicitors had said in 2006 that he had Nigerian nationality. The Nigerian High Commission had accepted him as Nigerian and the Sierra Leonean High Commission had said that he was not from Sierra Leone. The only contrary evidence was the Appellant’s own say-so in his draft witness statement, but his evidence on every material point had been rejected by every tribunal that had considered his case. Thus even if the Upper Tribunal had ignored the Sprakab report it would have been bound to conclude that the Appellant was Nigerian.

[41]Mr Chirico acknowledged that it would have been open to the Upper Tribunal to reach the same conclusion without placing any weight on the Sprakab evidence, but he did not accept that it was possible simply to discount the Appellant’s evidence: it had to be weighed against the factors going the other way, and that exercise could only be performed by the fact-finding tribunal, in this case the Upper Tribunal, to which the case should accordingly be remitted. The Sprakab report was one of the factors that Judge Freeman had taken into account in deciding to reject the Appellant’s evidence, and it was not possible to be confident that he would have come to the same conclusion without it. Mr Chirico referred to the decision of this Court in Haile v Immigration Appeal Tribunal

[2001] EWCA Civ 663

, in which the IAT had wrongly excluded certain evidence and although the Court was plainly sceptical about whether it would have made any difference if it had been admitted it held that the case would have to be remitted for a re-hearing.

[42]I have found this point finely balanced, but in the end I would accept Mr Palmer’s submission. I agree that the Appellant’s evidence could not be formally discounted, but there were very strong grounds for not accepting its reliability. In my view it could not rationally have been regarded by either Tribunal as outweighing the factors relied on by Mr Palmer, which are succinctly enumerated by the FTT at para. 86 of its Determination (see para. 22 (1) above). (Indeed another way of putting it would be that although the FTT reached the decision that it did on the balance of probabilities its reasoning would have led to the same conclusion even if it had applied the lower standard of proof.) The question posed in Haile is whether it could “confidently be said that [the tribunal’s error] made no ultimate difference” (see per Simon Brown LJ at para. 25). I believe that it is possible to be confident that the result would have been the same if the Sprakab evidence had been excluded. C. THE SPRAKAB ISSUE

[43]Partly because of the more summary approach which I am taking to this issue but partly also because of the limited nature of the points being taken, I need not say much about the Sprakab report itself. It took the form described in the case-law referred to at para. 28 above. The conversation with the Appellant was in English, since he said that he did not speak Krio, the lingua franca of Sierra Leone, or any tribal language, because when he was growing up his parents only spoke English to him. The “specific findings” part of the analysis was divided into sections on phonological characteristics, morphology and syntax, lexicon and colloquialisms, and knowledge assessment. Those are preceded by “general comments”, which include the conclusion already referred to that the Appellant “speaks a variety of English with certainty not found in Sierra Leone … [and] … most likely found in Nigeria or Ghana”.

[44]The principal analyst, who conducted the conversation with the Appellant, (“analyst 247”) is described as having been born in Sierra Leone in 1956, as having Krio as his mother tongue, and as being able to analyse Krio, English and two tribal languages. He is said to have been an analyst at Sprakab since 2002 and to have performed more than 200 language analyses. He has a bachelor’s degree in social sciences and a master’s in political science and history. The confirming analyst (“analyst 207”) is said to have been born in Ghana in 1954 and to have come to Sweden in 1981 but to have “resided in Nigeria for a longer period of time”. His mother tongue is said to be Hausa but he analyses also English and a number of other local languages. He is said to have worked for Sprakab since 2003 and to have performed 400 analyses. Under the heading “educational qualifications” there appears the bare entry “phonology”. The linguist who “reviewed and approved” the report (“linguist 04”) has a long CV which includes various courses in linguistics, though also in other subjects, but he does not have a degree in linguistics. He has worked for Sprakab since May 2008.

[45]As for the report of Professor Patrick, although it develops at some length a number of general criticisms of Sprakab and its expertise and methodology, much of that material was not relied on before us, no doubt because it has in effect been superseded by the decision of the Supreme Court in MN. Only a fairly small part of the report makes particular criticisms of the findings about the Appellant, and of these Mr Chirico only relied on Professor Patrick’s criticisms of the part dealing with phonological characteristics, that being the only part on which the Judge placed some reliance. I return to these below.

[46]The Judge considered the Sprakab evidence at paras. 27-77 of his Determination, perhaps at rather greater length than his eventual degree of reliance on it warranted. It is clear that linguistic analysis interests him, and he appears to have some knowledge and experience of the subject. He starts by summarising the Sprakab report. In the course of doing so he observes, at para. 27:

“The general approach to be taken to evidence of this kind is set out in the judicial head-note to RB (Linguistic evidence – Sprakab) Somalia [2010] UKUT (IAC) 329, upheld with one minor reservation in RB (Somalia) [2012] EWCA Civ 277: Linguistic analysis reports from Sprakab are entitled to considerable weight. That conclusion derives from the data available to Sprakab and the process it uses. They should not be treated as infallible but evidence opposing them will need to deal with the particular factors identified in the report.”

Linguistic analysis reports from Sprakab are entitled to considerable weight. That conclusion derives from the data available to Sprakab and the process it uses. They should not be treated as infallible but evidence opposing them will need to deal with the particular factors identified in the report.”

[47]At paras. 31-65 the Judge summarises the general criticisms made by Professor Patrick of the qualifications and approach of the Sprakab analysts. In so far as those criticisms are concerned with issues going to the admissibility in principle of Sprakab reports, he declines to engage with them, saying that “it has already been authoritatively established [viz. by RM in this Court] that the makers of Sprakab reports are entitled in principle to be treated as expert witnesses”. Other, more particular, criticisms he finds to be unfair or misconceived. However, it is unnecessary to go over most of this ground, because he concludes at para. 54 that he should place no reliance on “Sprakab’s views on the grammatical or lexical features of the appellant’s speech … [or on the analysts’] assessment of his culture and geographical knowledge of Sierra Leone”. The only aspect of their views on which he says he intends to place some weight is the phonological features which they found to be uncharacteristic of English as spoken in Sierra Leone and characteristic of it as spoken in Nigeria and Ghana. They had mentioned eight features in particular, which I need not enumerate. The Judge notes that five of these are not contradicted by Professor Patrick. As to the remaining three, he accepts what Professor Patrick says about one of them but disagrees on two. In summary:(1) The first disagreement concerns what Sprakab noted as the Appellant’s use of “alveolar lateral approximant [l], in comparison to “alveolar trill /r/, in certain positions”. Professor Patrick says that that is not of diagnostic value because “the variable treatment of liquid sounds is a widespread feature of West African languages and the Creole languages descended from them”. The Judge says that that criticism ignores the fact that the Sprakab analysts relied on particular words in which this substitution occurred, in all of which it was intervocalic; and he observes that there is no basis for concluding that the analysts were wrong to regard it as diagnostic in those particular contexts.

(2) The second concerns what the analysts noted as the Appellant’s pronunciation of “aspirated dental plosive [th], compared to non-aspirated /t/, in certain positions”. This is said to be “typical of a variety of English spoken in Nigeria and Ghana”. Several examples are given, including the Appellant’s pronunciation of “Freetown”, where the analysts explicitly distinguish how it is pronounced in Sierra Leone. Professor Patrick says that this is not diagnostic either, because “many if not most English varieties … commonly show some degree of aspiration before vowels”. The Judge does not accept this as a valid criticism, pointing again to the specificity of the examples given by Sprakab, and to the fact that in some of them the aspirated “t” occurs in the middle of the word. He focuses in particular on the example of “Freetown”, seeing no reason to doubt the analysts’ evidence that this was pronounced differently in Sierra Leone and in Nigeria, and pointing out that if the Appellant was indeed from Sierra Leone “it can hardly be supposed that there would have been any mistake about his pronunciation of the name of … his home town”.

[48]At paras. 78-79 of the Determination to the Judge sets out his conclusions. At paras. 84-85 he raises a particular problem about the Sprakab exercise, although it is not in fact a point made (or in any event made clearly) by Professor Patrick, namely that even on his own account the Appellant had lived for fifteen years or so in Nigeria before coming to the UK, and it might reasonably be supposed that he might have acquired some Nigerian pronunciations over that time in place of those learnt in his childhood in Sierra Leone. He says that regrettably he has had no evidence on that question. He continues, at para. 85:

“Without such evidence, I simply have to do the best I can to assess what is before me in the light of common sense and common knowledge. On that basis, I still consider it remarkable that someone who lived in Freetown for his first 15 years should so completely have taken on the speech patterns of his new country as to pronounce even the name of his own home town according to them, and I still regard the SPRAKAB phonological evidence as going contrary to that version of events.”

[49]Mr Chirico’s challenge to the Judge’s reasoning and conclusions falls under two broad headings. I take them in turn. (1). ADMISSIBILITY

[50]First, he submits that the Judge was wrong to admit the Sprakab evidence at all or, which comes to the same thing, to attach any weight to it. He relies on the endorsement by Lord Carnwath in MN of the statement of Lord Eassie in the Inner House that the Secretary of State must “establish, by active demonstration of the appropriate expert qualification, the worth of the [expert evidence relied on]” (see para. 32, at p. 2077 C-D). He submits that in the case of neither of the analysts nor the linguist does the information supplied about them show that they have the expertise to express, or endorse, an opinion on the questions of phonology on which the Judge relied. As he puts it in his skeleton argument:

“(i) There is no evidence that Analyst 247, who is said to have been born in Sierra Leone (the location is unspecified), has any linguistic qualification, has any expertise in identifying different forms of English (he is not said to speak English at mother tongue level), has lived in Sierra Leone, or has even visited the country since the date when he is said to have been born there (in 1956). There is no evidence that he had acquired familiarity with Sierra Leonean English by any other means, or that he has referred to any documentary source material relating to Sierra Leonean English. (ii) There similarly no evidence that Analyst 207, who is said to have been born in Ghana, has had any linguistic qualification. He is said to have lived in Nigeria “for a longer period of time”, but there is no evidence what this means (‘longer’ than an unspecified period in Ghana?). There is no evidence that he is able to identify different forms of English (he is, again, not said to speak English, at mother tongue level), no evidence of when he is said to have last visited Nigeria, and no evidence that he has referred to any documentary source material relating to Nigerian English. (iii) There is no evidence that ‘Linguist 04’ has any expertise in the analysis of any form of English, let alone West African English, or any knowledge of any West African language or dialect. For the reasons set out at paragraph 59 of [MN], even if Linguist 04 has relevant technical expertise (in the identification of phonological features), these could not “make good the absence of any exposition of relevant expertise” by any of the report-makers in the dialects of West African English.”

[51]Various points are made in that passage. I take first the fact that the analysts have no formal qualifications as linguists (in the sense of linguisticians). I do not believe that it follows from that fact that the Judge was obliged to hold that it was not established that they had, in Lord Eassie’s phrase, “the appropriate expert qualification”. I do not understand either Lord Eassie or Lord Carnwath to have been referring, in the passage relied on by Mr Chirico, to formal or academic qualifications but to the question whether it had been shown that the analysts had appropriate expertise to express an opinion on the particular issue in question. The criticism of the Sprakab report in MN was that the analysts expressed views about(a) the subjects’ lack of knowledge of a particular part of Somalia when there was no evidence of their own knowledge of that part and

(b) identification of certain Somali dialects and the distribution of their speakers when there was no evidence of their expertise in those questions; and it was to those deficiencies that Lord Eassie was evidently referring. I do not understand either this Court in RB or the Supreme Court in MN to have held that the evidence of Sprakab analysts was worthless unless they had an appropriate academic qualification. Indeed if that had been their view they could hardly have given the endorsement that they did, albeit carefully qualified, to the continued use of Sprakab reports in principle, since it is inherent in the Sprakab method that its analysts rely on their practical knowledge and experience of a language, supported by appropriate training and with the involvement of a professional linguist. The crucial question is whether they have demonstrated an expertise in the particular issue on which they are expressing an opinion. For the same reason I do not regard it as fatal that “linguist 04” does not claim expertise in West African English: detection and analysis of significant features of the subject’s speech is the role of the analysts.

[52]I see rather more force in the criticism that the analysts give no detail of their recent experience of English as spoken in Sierra Leone or Nigeria/Ghana, as the case may be, since it is not clear how long either lived in the countries in question or what links they have maintained since they settled in Sweden. But on balance I would regard what they say in their CVs as sufficient to establish a prima facie expertise to express a view on the kind of broad question on which they opined. The Appellant could of course have asked for further details if he had chosen.

[53]I do not see why reference to “documentary source material” was necessary in this case. Mr Chirico submitted that there needed to be reference to data showing that there were indeed identifiable differences between “Sierra Leonean English” and “Nigerian English”. But I see nothing inherently implausible in the proposition that there are marked differences in the way that English is spoken in different West African countries and that those differences can be recognised by natives of those countries, and analytically described by them if they have appropriate training and experience, and I do not believe that reference to other source material to support their evidence to that effect was necessary. Mr Chirico complained that the report does not spell out the particular training that the analysts have had; but the Judge was in my view entitled to take into account the general evidence about Sprakab training given to the Upper Tribunal in RB and fully summarised in its determination.

[54]Overall I do not believe that the points made by Mr Chirico required the Judge to conclude that the Sprakab report should be simply disregarded. It may well have been appropriate for him to be cautious – and in fact we have seen that he excluded whole sections of the report from his consideration – and that the report could not by itself have borne the weight of a finding that the Appellant was not from Sierra Leone. But the question is whether the Judge was wrong in law to attach to it even the limited weight that he did; and I do not believe that he was.

[55]Mr Chirico submitted that the Judge had been misled into treating the Sprakab report as admissible by his acceptance of the guidance given by the Upper Tribunal in RB which I set out at para. 46 above. He said that that guidance had been qualified by Lord Carnwath in MN at paras. 45-50 of his judgment (pp. 2080-1). However the thrust of the qualifications which Lord Carnwath expressed was that tribunals should not treat the guidance as some kind of generalised approval of Sprakab reports but should consider their admissibility and weight on a case-by-case basis. It is clear that that is what Judge Freeman did here.

[56]I accordingly do not accept that in the particular circumstances of this case the Upper Tribunal was obliged to exclude the evidence contained in the Sprakab report. (2). PARTICULAR ERRORS

[57]Mr Chirico his skeleton argument made a number of points under this head, which I will take in turn.

[58]First, he says that Judge Freeman was wrong not to engage with Professor Patrick’s more general criticisms of principle because the “authoritative” endorsement of Sprakab’s expertise by this Court in RB to which he referred (see para. 47 above) could not survive the judgment of Lord Carnwath in MN. This is essentially the same point that I have already addressed. The Judge plainly meant only that he need not consider arguments aimed at excluding the report in limine. He accepted that he was obliged to consider any arguments directed at the reliability of this particular report or the weight to be attached to it; and he did so.

[59]Secondly, he makes a point, which he did not develop orally, about the difficulty identified at paras. 84-85 of the Determination about whether the Appellant’s pronunciation might have changed over the long period that he had lived in Nigeria: see para. 48 above. I am not sure that I wholly understand the point. I need only say that I see no error of law in the way in which the Judge dealt with this issue. It was clearly a factor which tended to lessen the weight that might otherwise have been accorded to the analysts’ conclusion; but the extent to which it did so was a matter for his evaluation.

[60]Thirdly, he relies on a criticism made by Professor Patrick of the analysts’ inaccurate use of the IPA phonetic alphabet, which the Judge is said to have disregarded on the basis that it had not been demonstrated how that affected the reliability of the report. This is another point that was not developed orally, and in fact it does not seem to me to reflect the Judge’s actual reasoning, which was, rather, that Professor Patrick had given no examples of the alleged inaccuracies. But ultimately I do not see how the criticism can be said to reflect an error of law. Even if the analysts and/or the linguist had a poor grasp of the IPA alphabet, it would not necessarily follow that the analysts were unable to recognise and describe the features of the Appellant’s pronunciation which were uncharacteristic of Sierra Leonean English.

[61]Mr Chirico also seeks in his skeleton argument to generalise the last two points as instances of a failure by the Secretary of State to establish the basis of the analysts’ expertise, on which the burden lies on her, as recognised in MN: see para. 50 above. I do not agree. Their qualification to give evidence is prima facie established – or not – by their CVs, read in the context of the available evidence about Sprakab’s methods of training and supervision. Errors in the particular analysis or reasoning will go to the question of what weight to give their evidence.

[62]Fourthly – and this was the point emphasised in his oral submissions – Mr Chirico challenges the Judge’s reasons for discounting two of Professor Patrick’s criticisms of the analysts’ phonological conclusions: see para. 47(1) and

(2) above. He says that this depends on points made by the Judge – namely that an intervocalic “l” for “r” substitution and an aspirated “t” in the middle of a word were more unusual, and therefore potentially diagnostic, than when those features occurred in other contexts – for which there was no support in the expert evidence. There is in my view some force in this submission. It is certainly true that the particular features relied on by the Judge are not explicitly referred to in the Sprakab report. They may be what the analysts, and/or the linguist, had in mind when they used the phrase “in certain contexts”; but that is not self-evident. There is an obvious risk in a judge – even (or perhaps particularly) one who appears to have some special knowledge – drawing inferences which the experts themselves have not. On the other hand, the Judge was entitled to make the point that Professor Patrick’s criticism was entirely general: to say that “l” for “r” substitution or aspirated “t”s are common is not the same as saying that they (or their absence) are not capable of being diagnostic as between two particular varieties of English. To put it in the context of this case, what matters is whether the Sprakab analysts were in a position to say that Sierra Leoneans say “Freetown” with an unaspirated “t” whereas Nigerians say “Free[th]own”: if they were, and if the Appellant said the latter, that was something to which the Judge was entitled to give some weight. On balance, even if the Judge over-elaborated his reasons for not accepting Professor Patrick’s criticism, his fundamental point was a reasonable one; and I do not believe that any error of law on his part has been demonstrated.

CONCLUSION

[63]It is in my view unfortunate that the Sprakab report became the focus of so much detailed attention in the Determination of the Upper Tribunal and thus also in this appeal. It was only one element in the Secretary of State’s case that the Appellant was a Nigerian national, and it had some frailties, not least the problem identified at para. 48 above. It is noteworthy that the FTT felt able to dismiss the appeal without placing any reliance on the report at all. And in the end, although Judge Freeman did place some weight on one (though only one) part of it, it appears to have been a good deal less central to his reasoning than the number of paragraphs devoted to it would at first suggest.

[64]However, given that the report did play at least some part in the Judge’s reasoning, the question is whether he erred in law by placing any weight on it at all. For the reasons which I have given I do not believe that he did. He was entitled to take it into account provided he adopted a properly critical approach, as he evidently did.

[65]I would add, out of abundance of caution, that I do not regard this judgment as adding anything of general application to what Lord Carnwath has said in MN. It is to his judgment that parties and tribunals should look for a statement of the relevant principles and the correct approach in cases where the Secretary of State seeks to rely on evidence from Sprakab. The present case simply involves the application of those principles in a very particular set of circumstances.

DISPOSAL

[66]I would dismiss this appeal.

Lord Justice Christopher Clarke:

[67]I agree.

Lord Justice Kitchin:

[68]I also agree.