Supreme Court provides guidance on the use of Linguistic Analysis in the determination of Refugee Status
6 June 2014
In Secretary of State for the Home Department v MN and KY  UKSC 30 the Supreme Court has given guidance on the use of linguistic analysis in the determination of refugee status. The Court also gave further clarification of the special status of Tribunals.
The respondents claimed to be refugees from Somalia; the Secretary of State deployed a linguistic analysis company based in Sweden (SPRAKAB) to conduct a telephone interview using linguistic analysis to assist in determining whether they originated from Somalia. The result of that linguistic analysis concluded they did not. The claimants argued that the linguistic analysis process used was deeply flawed.
The claimants were successful in the Inner House in establishing that the Upper Tribunal erred in law in its reliance upon the linguistic analysis in this case. The claimants also argued that the reports were anonymous without good reason, addressed credibility that is exclusively for the judge and did not provide sufficient information to vouch their familiarity with the subject or expertise. The claimants also criticised an earlier decision of the Upper Tribunal that had sought to give guidance about what weight to give future reports by Sprakab, contending that a tribunal could not do so.
The claimants succeeded in the Inner House in establishing the Upper Tribunal erred in law, Lord Eassie, Menzies and Marnoch –Marnoch dissenting (2013 S.L.T. 1143). The Secretary of State appealed emphasising the flexibility of the Tribunal system to deal with new evidence that may not be admissible in an ordinary civil court.
The Supreme Court, in unanimously dismissing the Secretary of State’s Appeal, recognised that the Upper Tribunal is a body that benefits from flexible procedures, freedom from technicality and expertise. However, it could not endorse the Sprakab reports in this case or the Upper Tribunals earlier guidance which appeared “unduly prescriptive and potentially misleading” giving “rise to a real risk of being interpreted as prejudging issues which are for the individual tribunal to determine”. The second respondent’s original appeal was allowed simpliciter (thus she is now a refugee), whilst the first respondent’s case was remitted to the Upper Tribunal, possibly to become Country Guidance on how to approach linguistic analysis in the future.
Mark Lindsay, QC acted for the appellant Secretary of State who sought clarification on the use of linguistic analysis. Dan Byrne, acted for the first respondent in successfully resisting the appeal.
The full judgment is available at: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0202_Judgment.pdf
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