Secretary of State for Home Department v MN and KY

Specialist tribunals may admit relevant expert evidence despite informality or non-compliance with court procedures. Its weight depends on demonstrated expertise, independence and adequately explained reasoning.

Upper Tribunal factual or procedural guidance is ordinarily persuasive. It cannot predetermine the assessment required in an individual appeal. A tribunal must examine linguistic evidence critically against all the evidence. The expert’s confidence does not replace sound reasoning.

Anonymity for an individual expert requires special justification. Collective evidence submitted by an identified organisation may permit a less strict approach where contributors’ qualifications and methods are disclosed, their identities remain available to the tribunal, and appropriate safeguards prevent prejudice. An expert must remain within demonstrated expertise and must not express a general view on credibility or act as an advocate.

Each respondent claimed asylum on the basis that he or she came from a region of Somalia where persecution was feared. The Secretary of State rejected the claims after relying on reports from Sprakab, a Swedish organisation, which attributed their speech to Kenya. The asylum tribunals upheld those decisions.

A majority of the Inner House allowed both appeals in [2013] CSIH 68. MN’s case was remitted to the Upper Tribunal. KY’s appeal was allowed without remission because no other material supported refusal of her claim.

The Secretary of State appealed. The central issues concerned the admissibility and weight of organisational linguistic evidence, anonymity for its contributors, compliance with expert-evidence practice directions, and the permissible scope and effect of Upper Tribunal guidance about such reports.

1. The Secretary of State’s appeals were dismissed unanimously. Lord Carnwath delivered the judgment, with which Lord Neuberger, Lord Clarke, Lord Hughes and Lord Hodge agreed. MN’s case remained remitted to the Upper Tribunal. The order allowing KY’s appeal without remission was upheld.

2. There was no objection in principle to admitting Sprakab reports. Tribunal procedure emphasises relevance, weight, flexibility and the effective use of specialist expertise. Evidence was not inadmissible merely because it was produced collectively in an organisation’s name or failed to follow every requirement of the expert-evidence practice directions. The tribunal nevertheless had to be satisfied that the evidence rested on adequate expertise, was neutral and remained within the expert’s field.

3. Upper Tribunal guidance may address recurring factual and procedural questions, as well as law. Unless statute or an applicable practice direction provides otherwise, such guidance remains persuasive. It cannot operate as a factual precedent or displace the tribunal’s duty to assess each case objectively and fairly.

4. The guidance in RB was unduly prescriptive in suggesting that little more was needed when a clear and reasoned linguistic analysis expressed certainty or near certainty. The decisive matters are the strength of the reasoning and the expertise supporting it, not the confidence with which the conclusion is expressed. The guidance was also too prescriptive in requiring a very good reason to depart from anonymity. Justice and possible prejudice must be assessed in each case.

5. Anonymity for an individual expert ordinarily requires special justification. The present form of collective organisational evidence permitted a less strict approach because Sprakab’s identity and methods were known, contributors’ qualifications were disclosed, and their names were available to the tribunal. Anonymity remained subject to safeguards and a case-specific finding that no prejudice resulted.

6. The reports’ comments on the respondents’ knowledge of country and culture lacked demonstrated expertise and improperly entered the field of general credibility. The suggestion that knowledge sounded rehearsed was advocacy rather than independent expert opinion. Expert witnesses must never act, or appear to act, as advocates. That defective material formed an inseparable part of the immigration judges’ reasoning and was sufficient to undermine both decisions.

7. The Upper Tribunal also erred by treating RB as effectively precluding further argument. Its guidance was no substitute for critical examination of the particular reports, the different dialect involved, the basis for geographical attribution and the first-instance reasoning. The respondents were entitled to have their properly raised challenges considered and answered on appeal.

1. United Kingdom Supreme Court: The Secretary of State’s appeals were dismissed unanimously. The Inner House’s orders were upheld. MN’s case remained remitted to the Upper Tribunal, while KY’s appeal remained allowed without remission.
2. Inner House of the Court of Session: By a majority, the court allowed both respondents’ appeals in [2013] CSIH 68. It remitted MN’s case to the Upper Tribunal and allowed KY’s appeal without remission.
3. Upper Tribunal: The Upper Tribunal dismissed both appeals after treating the guidance in RB as effectively determinative of the challenges to the Sprakab reports.
4. Asylum and Immigration Tribunal: The tribunal dismissed each asylum appeal after relying materially on a Sprakab linguistic analysis report.