Case No. UKUT-00453-(IAC)

, PCIJ Series B, No 4; KK & ors (Nationality; North Korea) Korea CG [2011] UKUT 92 (IAC). Documentary evidence to support an application for nationality is a common feature of countries’ nationality determination procedures. We know from the solicitor’s letter and the appellant’s statements that she claimed to have no documents to support her application, but there is nothing to suggest that she made any effort to obtain them, e.g. by seeking to contact family members for copies of their identity documents. Nor is there anything to suggest that her solicitors sought to establish from the Ethiopian embassy in advance of her embassy appointment what documents they would expect her to produce or, if certain documents were unavailable, what evidence they would accept in lieu. We would observe that if after her interview the appellant or her solicitors were of the view that the embassy had been unreasonable or unfair in basing their rejection on her having failed to produce relevant documents, they could have written to say so. There is nothing to suggest that they attempted to do that.16.The appellant may not have been, as was the appellant in MA (Ethiopia) someone who clearly “misled” the embassy, but she was someone who had not taken all reasonable steps because the evidence was that her efforts to establish Ethiopian nationality (even on the assumption that she gave true particulars) were half-hearted. This is what the judge found and it was entirely reasonable of him to do so.17.We would also observe that the judge did not simply consider the appellant's attempts to establish her lack of Ethiopian nationality by reference to her contacts with the Ethiopian embassy. As is clear from [60], he found her evidence to him as regards her inability to contact relatives abroad “evasive and untruthful”.18.Given that we find no error in the judge’s assessment that the appellant had failed to take reasonable steps to establish that she was not Ethiopian, we see no merit whatsoever in the additional contention of the appellant in the renewed grounds that the judge’s approach assumed the appellant’s dishonesty. There were at least two possible views the judge could have taken about the appellant’s approaches and exchanges with the Ethiopian embassy: that she was seeking to help by giving them full and true particulars; or that she was not. Having considered the evidence as a whole, the judge decided it was the latter. There were no artificial assumptions either of honesty or dishonesty involved. The Sprak ab report 19.We turn then to the third and final ground advanced by the appellant which assails the judge’s reliance on the Sprakab report. This ground alleges that the judge should have found that the report on the appellant displayed procedural bias because at no stage did it test her understanding of Tigrinya, notwithstanding that she was recorded as having stated that she understood Tigrinya. The judge should not have accepted the respondent’s assertion that due to her claimed parentage she should have used speech displaying some features of Tigrinya, as the appellant had given a plausible account of why her speech did not display such features – principally that she was a migrant child who had been brought up by an Ethiopian nanny. Further, whilst analyst one, Catharina Karlhager, records expertise in analysing Amharic and Tigrinya, the second linguist, Petter Lovgren, records no evidence in his CV that he has expertise in either of these languages. The finding of the judge at [56] that both the experts are well qualified was therefore irrational. Finally, the judge should have taken account of the fact that the “Knowledge” section of this report accepts that the appellant had knowledge of Assab (her claimed birth place) and of Eritrea. The only point taken against her in this section of the report is limited to one, concerning her knowledge about the two ports, in Assab.20.We are not persuaded that this ground discloses a material error of law either. The judge’s assessment of the appellant’s identity and nationality was based on the evidence as a whole, so that, in relation to the appellant’s claimed knowledge of Eritrea, the Sprakab report section on “Knowledge” was only part of the overall picture. In her asylum interview the appellant had failed to show adequate knowledge of Eritrea in several respects. The respondent’s refusal decision noted that she had failed to give correct answers to questions about Eritrea regarding opening hours of shops, school uniforms, traditional sports, winter months in Assab, the name of the ancient city near Assab, the ancient islands in the Bay of Assab, the second port in Eritrea, the name of the section of Assab by the shoreline and the part of the section of Assab in the centre. We are also satisfied that in assessing the significance of these shortcomings the judge took proper account of her claimed reasons for them (including her claim to have only lived in Eritrea for three short periods). We conclude that the judge’s findings as regards knowledge were entirely open to him on the evidence.21.As regards the appellant’s linguistic characteristics, it was equally the case that the judge had regard not just to the Sprakab report but to the asylum interview (which included some questions asked in Tigrinya) and the appellant’s own evidence at the hearing: see especially [17] – [19], and submissions made about the Sprakab report [39].22.We would accept nevertheless that the judge did rely significantly on the Sprakab report, and that if such reliance was misplaced that would give rise to a material error of law: however we do not find such reliance was misplaced.23.What the judge concluded about the report is set out at [55] – [57] as follows:- “55. I do not accept that the report shows evidence of procedural bias. It is apparent from the introductory passage to the report at C1 that the analysts were asked to examine the applicant’s language by analysis. It does not indicate that the analysts were asked to establish that the appellant is from Ethiopia . Secondly, it is acknowledged that the report was prepared on instructions from the Home Office but Sprakab, its linguists and analysts are aware that the material might be considered on appeal and that it is the duty of the analyst to help the Tribunal on matters within Sprakab’s expertise. The duty, it is said, is ‘paramount and overrides any obligation to the Home Office. We have complied with our duty to the Tribunal… ’ 56. I note what was said by the Supreme Court about the decision of the Upper Tribunal in the case of MN (Somalia) v Home Secretary [2014] 1 WLR 2064 , i.e., that where a Sprakab Report expresses an opinion in terms of certainty or near certainty then little more is required to support a conclusion, underplayed the importance in any case of the Tribunal itself examining such a report critically. But the specific criticisms made by Mr Chelvan in this case of this report seem to me to be unfounded. The two analysts who reached their conclusion are well qualified and I give due deference to their opinion, whilst at the same time placing the report in context with the other evidence. I would not agree with Deputy Judge of the Upper Tribunal I A Lewis who said when remitting this case for a further hearing that the report is ‘near determinative’ but it does deserve significant weight. 57. The appellant has given evidence that the reason why she is not fluent in Tigrinya is because she was raised in an Amharic speaking environment. Her father was away working a lot and her mother died when she was only 2 years of age. On the other hand the appellant was, on her evidence, residing in Ethiopia only until the age of 8. She was residing in Sudan with her father for eight years until 2009 and has also spent time in Eritrea and married a man in Eritrea on 23 rd May 2010. I do not find her evidence that he was living in Ethiopia only until the age of 8 at all likely, given the findings in the Sprakab Report.” 24.We derive from the judge’s reasoning as set out in these paragraphs the following. We begin with a point not raised by Mr Manley, but important nonetheless. The judge clearly took cognisance of what Lord Carnwath had said in MN (Somalia) [2014] UKSC 30 and made sure to establish whether the judge had committed the same error as the Upper Tribunal was held to have done in that case of underplaying the importance in every case of the Tribunal examining the report critically, and not just reading off its conclusions if expressed as a near certainty. We note also that, unlike the report considered in MN, the report in this case was by identified linguists.25. We next observe that the judge gave specific attention to the appellant’s contention th at the report betrayed procedural bias. What the judge concluded in [55] was his response to the contention of the appellant’s representative at that hearing, Mr Chelvan , which he recorded at [54] as being that “the respondent had set out to prove that the appellant is from Ethiopia rather than help her establish her true nationality”. We consider the judge’s reasons for rejecting this contention was a sound one, and that the judge was right to consider that the authors of the report sought to establish the appellant’s linguistic characteristics with an open mind and did not see themselves as seeking to establish that the appellant is from Ethiopia. ( We would recall that for reasons given earlier we reject the notion implicit in the above argument that the burden of substantiation is not on the applicant, but depends on help from the respondent. ) 26. The third point w e would make is that we see no material error in the judge stating at [56] that “[t]he two analysts who reached their conclusions are well qualified and I give due deference to their opinion”. This assessment did not assert that both were well qualified in Tigrinya and Amharic and as a statement about their qualifications as set out in their CVs , it was not incorrect. It stood as a direct answer to the submission from Mr Chelvan , recorded at [39] that “the analysts were not suitably qualified to carry out the task” and at [54] that there was a “lack of any evidence of expertise in analysing either Amharic or Tigrinya in the second linguist’s CV”. Whilst the second analyst’s CV did not demonstrate any knowledge of Tigrinya or Amharic , the report sets out a description of its methodology noting that “[l]anguage analysis cases regional and local linguistic features in phonology, prosody, morphology, syntax and lexica… ” It states that “[i]f necessary, a second opinion is requested by one or more analysts” and adds: “ Every language analysis report is reviewed by two or more linguists to ensure the quality and contents. The language analysis in this report has been compiled by analysts in cooperation with Sprakab’s linguists. A Sprakab linguist bears the ultimate responsibility for the quality and content of the language analysis.” 27.It is also confirms in respect of the report on the appellant that the “Examination/analysis [was] carried out by expert analysis working under the supervising umbrella of expert linguists.”28.To our satisfaction the above makes clear: (i) that the expertise of language analysis goes beyond linguistic expertise in a particular language/languages (and includes, for example, knowledge of phonology, morphology, syntax, lexica); (ii) that whilst the analysts may include more than one linguist it is only necessary for there to be one linguist (and a “second opinion” can be requested by one or more analyst); (iii) it is the linguist who bears the ultimate responsibility for the quality and contents of the language analysis; and (iv) that in addition to the input of the analysts, Sprakab ensures that its analysts work under the supervising umbrella of expert linguists.29.Seen in this context, the second linguist involved in the report on the appellant may not have possessed any knowledge of Tigrinya or Amharic, but he was a linguist whose qualification included basic, intermediate and specialised and advanced courses in linguistics and a basic and intermediate course in computational linguistics. Given that the report’s methodology accorded ultimate responsibility to the first analyst, linguist Catharina Karlhager, who did have specific expertise in Amharic, Tigrinya and Oromo, we see nothing untoward about the involvement of one analyst who did not.30.As regards the contents of the report, the assessment made was that it was very likely that the appellant’s linguistic background was Ethiopian as she demonstrated that she had “mastered Amharic to the level of mother tongue speaker”, that the variety of Amharic she spoke was one found in Ethiopia and that “[h]er speech did not display any feature of Tigrinya which can be expected among Eritreans”. In reaching these conclusions the analysts were clearly aware that the appellant had stated, inter alia, that she had been born in Assab in Eritrea of Eritrean parents but lived in Addis Ababa in Ethiopia for seven years. They clearly reached their conclusions after a specific analysis of linguistic level, phonology, morphology and syntax and lexica (the last three with specific examples from her speech). It is also clear that the analysts reached the view they did notwithstanding that on the section on knowledge assessment the appellant was only noted to have lacked knowledge about Eritrea on one matter: “two ports (she mentioned Dahlak which is not a port but an island)”. Given that their report was a linguistic analysis, it would have been odd if they had treated the mixed conclusions of the knowledge section as determinative in any event.31.In short, we reject the appellant’s contention that the Sprakab report was flawed and the concomitant contention that the judge fell into error by placing reliance on it.32.For the above reasons we conclude:33.The First-tier Tribunal Judge did not materially err in law.34.His decision to dismiss the appellant’s appeal must stand. Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings. Signed Date Dr H H Storey Judge of the Upper Tribunal 1 Paragraphs 63-69 of MM state: “63 As is clear from its title, Article 4 of Directive 2004/83 relates to the ‘assessment of facts and circumstances’. 64 In actual fact, that ‘assessment’ takes place in two separate stages. The first stage concerns the establishment of factual circumstances which may constitute evidence that supports the application, while the second stage relates to the legal appraisal of that evidence, which entails deciding whether, in the light of the specific facts of a given case, the substantive conditions laid down by Articles 9 and 10 or Article 15 of Directive 2004/83 for the grant of international protection are met. 65 Under Article 4(1) of Directive 2004/83, although it is generally for the applicant to submit all elements needed to substantiate the application, the fact remains that it is the duty of the Member State to cooperate with the applicant at the stage of determining the relevant elements of that application. 66 This requirement that the Member State cooperate therefore means, in practical terms, that if, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, it is necessary for the Member State concerned to cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled. A Member State may also be better placed than an applicant to gain access to certain types of documents. 67 Moreover, the interpretation set out in the previous paragraph finds support in Article 8(2)(b) of Directive 2005/85, pursuant to which Member States are to ensure that precise and up-to-date information is obtained on the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited. 68 It is thus clear that Article 4(1) of Directive 2004/83 relates only to the first stage mentioned in paragraph 64 of this judgment, concerning the determination of the facts and circumstances qua evidence which may substantiate the asylum application. 69 By contrast, it is apparent that the argument put forward by Mr M. concerns the second stage, also mentioned at paragraph 64 above, which relates to the appraisal of the conclusions to be drawn from the evidence provided in support of the application, when it is determined whether that evidence does in fact meet the conditions required for the international protection requested to be granted.” 2 As to the meaning of law in this type of context, see Pham v Secretary of State for the Home Department [2015] UKSC 19 at [34]