Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 69

 

P902/14

OPINION OF LORD STEWART

In the Petition

AHMED REZQ

Petitioner;

for

Judicial Review of a determination of the Upper Tribunal (Asylum and Immigration Chamber) dated 4 July 2013 etcetera

and Answers for

the Advocate General for Scotland on behalf of

the Secretary of State for the Home Department

 

Respondent:

Pursuer:  Bryce;  Drummond Miller LLP

Defender:  McIlvride QC;  Chalmers, Solicitor for the Advocate General for Scotland

5 June 2015

[1]        On 20 February 2015 I heard submissions at a first hearing in this asylum judicial review.  Mr Bryce, advocate, was for the claimant petitioner and Mr McIlvride QC was for the government respondent.  I made avizandum and have now decided, notwithstanding Mr Bryce’s vigorous and well-informed advocacy, to refuse the petition.

 

Kuwaiti Bidoons
[2]        The claimant asserts that he is an undocumented Kuwaiti Bidoon (otherwise, Bidun or Bidoun or Bedoon and variants), born 2 February 1991, a shepherd by occupation.  For an explanation of the term “undocumented Kuwaiti Bidoon” reference can be made to, among other derivative sources, MA Appellant [2014] CSIH 111;  NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 356;  BA and Others (Bedoon–statelessness–risk of persecution) Kuwait CG [2004] UKIAT 00256 at [5].

[3]        The received wisdom is that undocumented Kuwaiti Bidoons are at risk of persecution and that they qualify for Refugee Convention protection.  This was established for the United Kingdom in the 2004 country guidance [CG] case just cited, BA and Others (Bedoon–statelessness–risk of persecution) Kuwait.  That case determined, putting the guidance in italics:

“(iii)     In view of the widespread and systematic nature of the discriminatory measures they experience, the majority of (but not all) Bedoon in Kuwait face a real risk of persecution in Kuwait;

 

[...]

 

(v)        Since the Bedoon have a tribal identity and are not simply a collection of (mainly) stateless persons, they face persecution by reason of a Refugee Convention ground of race. They can also be seen to form a particular social group.”

 

This country guidance was endorsed in HE (Bidoon–statelessness–risk of persecution) Kuwait CG [2006] UKAIT 00051 and remained authoritative until 24 July 2013 when the guidance was qualified by the CG case NM (documented/undocumented Bidoon: risk) Kuwait cited above.

[4]        The 2013 country guidance now current is:

“(1)     The distinction made in previous country guidance in respect of Kuwaiti Bidoon, between those who are documented and those who are undocumented, is maintained, but the relevant crucial document, from possession of which a range of benefits depends, is the security card, rather than the ‘civil identification documents’ referred to in the previous country guidance in HE [2006] UKAIT 00051. To that extent the guidance in HE is amended. 

   

(2)     The evidence relating to the documented Bidoon does not show them to be at real risk of persecution or breach of their protected human rights.

 

(3)     The evidence concerning the undocumented Bidoon does show them to face a real risk of persecution or breach of their protected human rights.”

 

 

Travel and claim history

[5]        The present claim asserts that:  the claimant left Kuwait in 2007―age sixteen, I observe―following an accusation of murder by, and a threat of revenge from another family;  the claimant travelled via Turkey, Greece, France, Italy, France again, to the United Kingdom;  the claimant spent five-and-a-half years in Greece;  that the claimant paid a people smuggler 1,000 euros to get him to the United Kingdom concealed in the back of a lorry;  the claimant arrived in the United Kingdom on 5 October 2012 and claimed asylum on the day he arrived.

[6]        The claim was refused by the United Kingdom Border Agency [UKBA] on 2 November 2012.  As I read it, the reasons for refusal letter gives weight to four main factors, namely (1) the language analysis findings;  (2) the claimant’s ignorance of some (but not all) key facts about Kuwait such as the colour of post boxes and the colour of police uniforms;  (3) the claimant’s (relative) ignorance of key facts about the status of Bidoons in Kuwait;  and (4) the assessed incredibility of the claimant’s personal narrative [6/5 of process].  On appeal to the First-tier Tribunal [FTT] the claim was allowed by determination promulgated on 15 December 2012.  This was before the revised country guidance in NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 356 but there is no significance in that.

 

Asylum: granted by the FTT;  and set aside by the UT
[7]        The FTT judge accepted the claimant’s evidence that the claimant was an undocumented Kuwaiti Bidoon.  Applying HE (Bidoon–statelessness–risk of persecution) Kuwait CG [2006] UKAIT 00051 the FTT judge found that, if returned to Kuwait, the claimant would be subject to a real risk of persecution.  He also found that the claimant’s article 3 ECHR rights [no torture or inhuman or degrading treatment] would be breached if returned.  The FTT granted asylum.  The government was given permission to appeal to the Upper Tribunal [UT].

[8]        On appeal the Upper Tribunal [UT] set aside the FTT decision and directed that there should be a re-determination with no preserved findings in fact.  The focus of the appeal was the FTT judge’s treatment of the language analysis report.  The UT decision was promulgated on 4 July 2013.  Following clarification of the law on language analysis by a decision of the Supreme Court handed down on 21 May 2014, the claimant submitted to the UT that the claimant’s position on language analysis had been vindicated and that there was no need for a re-determination.  At a “for mention” hearing on 17 July 2014 the UT rejected the claimant’s submission and determined that the UT would act on its earlier decision.  The UT indicated, informally, according to counsel, that the only way of challenging the set‑aside and re‑determination decision was by judicial review.  That is what prompted the present proceedings.

 

The procedural issues: competency, Eba and mora
[9]        There are three procedural issues, namely, first, whether the UT set-aside and re‑determination decision of 4 July 2013 can competently be amenable to judicial review, given that judicial review is a last-resort remedy and that, while re-determination is pending, the tribunal process has not been exhausted;  secondly, whether the petition  raises “a point of principle or practice” that satisfies the Eba test for judicial interference with non‑appealable tribunal (immigration and asylum chamber) determinations;  and, thirdly, whether the application for judicial review is barred by mora (delay) on the part of the claimant.  All of these procedural issues I have decided in favour of the claimant.

[10]      Returning to the first procedural issue, is it competent for this Court to review the set‑aside and re‑determination decision given that the UT process is still ongoing and that, in a sense, there has not been “exhaustion of remedies”?  It is competent, in my view, or at least not necessarily incompetent.  The tribunal regime has been designed as a final‑disposal‑appeals system and constructed so as to exclude onward appeals or same‑tier reviews for interlocutory decisions, including re-determination decisions.  The existence of the exclusionary provisions implies that but for the rules there would have been remedies within the tribunal regime.  In the absence of remedies within the tribunal regime the only recourse is to the Court’s supervisory jurisdiction.

[11]      I did wonder whether the claimant could have applied for permission to appeal the set‑aside decision and so, somewhat artificially, triggered a new‑binding‑case‑law review by the UT itself of the set-aside decision in terms of rule 45(1)(b) of The Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698: but I have not looked into the matter of remedies within the tribunal regime too deeply because parties are agreed on the essential points and I have taken their word for it.  Parties agree that the set‑aside and re‑determination decision of the UT is a “procedural, ancillary or preliminary decision” and as such is an “excluded decision”, ie a decision in respect of which an onward right of appeal to the Court of Appeal or the Inner House is expressly excluded in terms of the Tribunals, Courts and Enforcement Act 2007 s. 13(7)(f) [power of Lord Chancellor to specify “excluded decisions”] and The Appeals (Excluded Decisions) Order 2009 2009/275 r. 3(m) [exclusion of procedural, ancillary and preliminary decisions in immigration and asylum appeals].  Parties agree that the UT is disempowered from reviewing its own “excluded decisions” except――in terms of Tribunals, Courts and Enforcement Act 2007 s 10(1), (4) and (7)――for the purpose of correcting accidental errors [Abiyat and Ors (Rights of Appeal) Iran 2011 UKUT 00314 (IAC) at [21], [22]].

[12]      The legislature has designed the tribunal regime to produce speedy outcomes.  It is not for the Court to subvert the intention of the legislature.  In most cases, I suspect, it will be impossible for the dissatisfied party, whether claimant or government, to argue that re‑determination with the possibility of an onward appeal into the appellate tier of the higher court system is not an adequate remedy.  In the present case there is an unusual combination of circumstances: the UT decision of 4 July 2013 deprives the claimant of the benefit of a positive credibility finding made by an experienced judge (Dr Joseph Morrow, at that time also President of the Mental Health Tribunal for Scotland and now Lord Lyon King of Arms);  and it is arguable―or at least it is argued by the claimant―that the decision would not and could not have been made if the UT had understood the law on language analysis as it was subsequently declared to be by the Supreme Court on 21 May 2014 in MN (Somalia) [MN (Somalia) and KY (Somalia) v Secretary of State for the Home Department 2014 SC (UKSC) 183].  I agree with Mr Bryce that there is a potential injustice which the Court can intervene to correct.  That disposes of the competency issue.

[13]      Clearly the question whether and in what circumstances unappealable interlocutory decisions of the UT, such as the set-aside and re-determination decision in this case, can be reviewed by the Court is an important point of practice that satisfies the first part of the Eba test; and the second part of the Eba test is satisfied by the country guidance about the risk of persecution, always assuming, of course, that the claimant is an undocumented Kuwaiti Bidoon [Eba v Advocate General for Scotland 2012 SC (UKSC) 1].  That disposes of the Eba point.

[14]      There has been no undue delay in bringing this matter under the notice of the Court’s supervisory jurisdiction.  The substantive issue did not arise until the Supreme Court made its decision about language analysis in MN (Somalia) on 21 May 2014 [MN (Somalia) and KY (Somalia) v Secretary of State for the Home Department 2014 SC (UKSC) 183]. Up till the date of the “for mention” hearing on 17 July 2014 the claimant envisaged, not unreasonably, that he might persuade the UT to review its own set-aside and re‑determination decision.  The claimant’s petition for judicial review was presented on 4 September 2014, going by the date stamp.  That disposes of the mora point.

[15]      The procedural issues having been decided in the claimant’s favour, the way is open to consider the substantive issue.

 

Substantive issue: LADO
[16]      As the case was presented to me by Mr Bryce, the substantive issue is about the treatment and evidential value of language analysis for the determination of origin [LADO].  LADO is a branch of applied linguistics.  LADO has been proposed for assessing asylum claims for more than a decade.  LADO was reportedly being used by the Swedish immigration authorities in 2003 [AJ v Sweden 13508/07 [2008] ECHR 786].  The first United Kingdom applications seem to have been in 2007 and came to the notice of the UT in 2008 [HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022;  AA (Language diagnosis;  use of interpreters) Somalia [2008] UKAIT 00029].  The Home Office has been commissioning a Swedish organisation to provide LADO since about 2008.  The organisation is Skandinavisk Språkanalys AB [Sprakab].  Analysis is done remotely, over the telephone and using a recording of the telephone conversation, by anonymised language analysts.  The analysts findings are reviewed by named academic linguists [FS (Treatment of Expert evidence) Somalia [2009] UKAIT 00004 (12 January 2009);  RB (Linguistic evidence Sprakab) Somalia [2010] UKUT 329 (IAC) (15 September 2010)].

[17]      In the present case the LADO telephone conversation between the claimant in Glasgow and the analyst in Sweden took place as a separate exercise during the course of the asylum interview on 24 October 2012.  The asylum interview seems to have started at 10.30.  During the morning session the Home Office interpreter intervened to complain that the claimant was “jumping about” between “classic Arabic and different Arabic dialects” [6/2, page 8, question 37].  There was a lunchtime break from 12.30 to 13.25.  There was another break from 14.20 to 14.40, possibly to set up the Sprakab call and brief the analyst.  The Sprakab analyst spoke with the claimant over the telephone between 14.40 and 15.05.  There was then a further break from 15.05 to 16.30, presumably to allow Sprakab to make its initial assessment and report back.  The interview record notes “apologised for delay – interpreter issue” [6/2, page 14 at question 166;  page 17 at questions 236, 238].  The initial, verbally-reported LADO result was then put to the claimant for his comment and the asylum interview was concluded at 16.35.

[18]      The formal, written Sprakab report was issued two days later on 26 October 2012. The report assessed the claimant’s actual linguistic background to be Egypt with a “very high” degree of certainty;  and the claimant’s claimed linguistic background, Kuwait, was assessed to be “very unlikely” [6/3].  The Sprakab findings were incorporated into the UKBA reasons for refusal letter [6/5].

 

Case law about LADO and Sprakab reports
[19]      There is now a lot of case law about LADO and Sprakab reports in particular. In RB (Linguistic evidence Sprakab) Somalia a panel of the UT chaired by the vice-president, Mr C M G Ockleton, determined, and gave guidance, or purported to give guidance that:

“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.”

 

Within the body of the judgment at [171] the UT stated:

“…where there is clear, detailed and reasoned linguistic analysis leading to an opinion expressed in terms of certainty or near-certainty it seems to us that little more will be required to justify a conclusion on whether an applicant or appellant has the history claimed.”

 

With one reservation―which is not relevant for present purposes―the Court of Appeal of England & Wales endorsed the UT’s “guidance” [RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277 (13 March 2012)].

[20]      The evidential standing of Sprakab reports was then considered by the Inner House of the Court of Session in the conjoined appeals of MN and KY.  The majority, Lord Eassie and Lord Menzies (Lord Marnoch dissenting), rejected the UT’s “guidance” on the evidential value of Sprakab reports [N and Y v Secretary of State for the Home Department [2013] CSIH 68 (12 July 2013)].  These conjoined cases went from the Inner House to the Supreme Court where the learned justices generally approved the approach of the majority in the Inner House and refused the appeals.  The Supreme Court held that the UT guidance in RB (Somalia) is unduly prescriptive and risks prejudging the issues in individual cases;  that tribunals in individual cases are bound to examine critically the expertise offered by the authors of Sprakab reports and their reasoning;  and that Sprakab reports expressed in terms of certainty or near certainty are not necessarily entitled to special weight.  As Lord Carnwarth put it:

“What matters is not the confidence with which [Sprakab’s views] are expressed, but the strength of the reasoning and expertise used to support them”

 

[MN (Somalia) and KY (Somalia) v Secretary of State for the Home Department 2014 SC (UKSC) 183 especially at [44]―[51] per Lord Carnwarth with whom the other justices agreed].  But all that was in the future at the date the UT’s set-aside and re‑determination decision in the present case was made.

[21]      The claimant’s argument as presented to me by Mr Bryce is that the set-aside and re‑determination decision could not have been made by the UT if the UT had properly understood the law as subsequently declared by the Supreme Court.  If this submission is correct I agree that it might well be a reason for quashing the UT’s decision and remitting:  however, my opinion is that the submission is not well-founded.

 

The UT set-aside decision
[22]      Let me explain.  I have to start by going back to the FTT proceedings of 2012.  The government was not actually represented at the hearing;  and one possible gateway requirement for setting aside is that “a party, or a party’s representative, was not present at a hearing related to the proceedings” [The Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698, rule 43(2)(c)].  The government’s request for an adjournment because of the sickness absence of its presenting officer was refused―the record does not say whether a medical certificate was asked for or offered.  The claimant’s case did not address the specific issues of language and knowledge raised by the Sprakab report;  and no contradictory expert evidence was led for the claimant.  The claimant gave oral evidence but, in the absence of the presenting officer, was not cross-examined.  The FTT judge found the claimant to be credible.

[23]      The FTT judge stated that:

“All of the aspects contained in the linguistics report focused around knowledge but I have also borne in mind that this was done over a short period on a telephone with a shepherd of limited education.”

 

By “all of the aspects… focused around knowledge” the FTT judge may reasonably be taken to have meant that the Sprakab report was concerned exclusively with the claimant’s knowledge of key facts about Kuwait and the status of Bidoons. Mr McIlvride QC argues for the government that this is what was meant and that it was a clear mistake on the part of the FTT judge.

[24]      The Sprakab report has both a language analysis section and a knowledge section.  It certainly looks as if the FTT judge left out of account the language analysis section, with its― from the claimant’s perspective―starkly negative findings.  To put matters into some sort of context, the UKBA reasons for refusal letter quotes an International Organisation for Migration report to the effect that there are 190,550 Egyptian nationals resident in Kuwait, so that even the idea of an Egyptian―not a Bidoon―with some knowledge of Kuwait is not altogether implausible.

[25]      The government’s application for permission to appeal to the UT [6/8], the permission decision [6/9] and the government’s outline submissions for the UT appeal hearing [6/12] all emphasised the endorsement given to Sprakab LADO reports by the RB (Somalia) decisions in the UT and the Court of Appeal.  To the extent that the government’s argument relied on the authority of RB (Somalia) it was not, as things transpired, particularly well-founded.  However the thrust of the appeal was that the FTT judge had failed to take account of the Sprakab report or failed to give reasons for rejecting its conclusions.

[26]      Mr Bryce’s written submissions to the UT on behalf of the claimant conceded that the FTT judge had “perhaps failed to give adequate reasons for rejecting the language analysis aspect of the [Sprakab] report”:  but, Mr Bryce submitted, the language analysis “was entirely lacking in cogency or reliability” so that it did not matter if the FTT judge had disregarded it.  It was worthless as evidence.

[27]      Mr Bryce’s criticisms of the Sprakab report are: that there was non-compliance with the Tribunals Practice Directions (Immigration and Asylum Chambers)―e.g. the material relied on to assess the claimant’s knowledge of Kuwait was not disclosed;  that the annexe containing the briefing information given to Sprakab by the Home Office was missing;  that the “ordered service” appeared to be a “knowledge assessment” with “direct analysis” but without “language analysis - regional and local linguistic features”;  that the language analyst was of Somali origin and had never been to either Kuwait or Egypt;  and that the linguistics reviewer did not speak Arabic but was a specialist in “tok pisin”, the pidgin English of Papua New Guinea.  Mr Bryce’s written submissions for the claimant highlighted the fact that an Extra Division had heard conjoined appeals on the evidential value of Sprakab reports in the cases of MN (Somalia) and KY (Somalia) on 13 and 14 December 2012 and 30 and 31 January 2013 and that a decision was awaited―Mr Bryce was junior counsel for the second appellant―and submitted:

“... it may be thought convenient to refrain from determining this appeal until the Inner House gives down its decision”.

 

These submissions were dated 10 June 2013.

[28]      In its determination of 4 July 2014 the UT, chaired by the President Blake J, did, if I may say so without disrespect, make two misjudgements which would have been avoided with an appropriately canny and deferential approach:  but neither of the misjudgements affects the outcome.  The first mistake was a “handling” error, in relation to the then expected decision of the Inner House. Even if, as the UT records, Mr Bryce “did not invite us to await the Inner House’s judgment before proceeding with the present case”, the thing to do would have been to wait for the Inner House to opine.  The Inner House actually handed down its decision eight days later on 12 July 2013.  The effect of not waiting was, as things turned out, to put the UT in a pickle where it faced a conflict of opinion as between the Court of Appeal and the Inner House which, ultimately, needed to be resolved by the Supreme Court.  In the meantime the vice‑president of the Upper Tribunal, Mr Ockleton, had to make directions for the re‑determination hearing;  he recognised that:

“the appeal [following the decision of the Inner House] raises in an acute form the consequences of the difference in approach to Sprakab cases in England and Scotland”;

 

and he identified

 

“an underlying question of fundamental importance in constitutional, European and international law” [6/14].

 

The vice-president eventually acknowledged the sense of waiting for the Supreme Court to rule on Sprakab.

[29]      The second misjudgement was that the UT―while fully aware that RB was under challenge in the Inner House―gave a degree of weight, or apparently gave a degree of weight, to the prescriptive dicta in RB about the evidential potency of Sprakab reports in all cases.  The UT stated [6/13 at §§ 26—27]:

“27.      Further, we noted that the guidance on Sprakab evidence by the Upper Tribunal in RB was somewhat broader than an assessment of the reliability of the particular report in the particular case. The italic words record:—

 

‘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.’

 

We accept that the degree of weight to be attached to any individual report will depend on all the particular circumstances of the case. However, we consider it to be of some importance that this report emanates from a body... whose general practices have been assessed to be appropriate to the giving of expert evidence by the Tribunal.

 

27.       We are satisfied that the Sprakab report in this case, and the linguistic observations made in Part 2 thereof, were capable of having considerable weight in resolving the issues in this case. They are conclusions that it was open to the analyst and the linguist to reach, using methods recognised by the courts as appropriate.”

 

My assessment is that paragraphs 26 and 27 of the UT determination are again incautious and go too far but are essentially, introduced as they are by the word “Further...”, a superfluous add-on.

[30]      The determinative points are to be found elsewhere in the UT reasoning: they are that prima facie the claimant used a number of Egyptian pronunciations, words and constructions which are inconsistent with his claimed origin;  that the claimant offered no explanation either at the asylum interview or at the FTT hearing for the inconsistencies;  that the unexplained inconsistencies are a negative feature so far as the credibility of the claimant’s pretended origin is concerned;  and that the FTT judge made a favourable finding on the claimant’s credibility without taking account of the Sprakab linguistic findings or at least without giving reasons for not taking them into account.  I respectfully agree with the UT that the foregoing constitutes a process irregularity which is justly and competently rectified by a re‑determination with no preserved findings [6/13, §§ 13, 14, 20—25, 28].  For the sake of completeness I have satisfied myself that “direct analysis”, which was part of the ordered service, means the kind of language analysis that was done in this case.

 

Decision
[31]      My assessment is that the UT determination would have been no different—and should have been no different—if it had been made after the Supreme Court decision in MN (Somalia) and KY (Somalia) v Secretary of State for the Home Department 2014 SC (UKSC) 183.  It is regrettable that the UT decision was made in advance of the Inner House decision and the Supreme Court decision.  A good deal of fyke and fasherie could have been saved if things had been otherwise.  In the result I must repel the government respondents’ first, second and fifth pleas‑in‑law, sustain their third and fourth pleas-in-law, repel the claimant petitioner’s pleas‑in‑law and refuse the petition.  I shall reserve all questions of expenses.