RM (Sierra Leone) v The Secretary of State for the Home Department

The standard of proof for a disputed nationality depends on the legal issue for which nationality matters. Where it bears on a risk of persecution for the purposes of asylum or article 3, the lower real-risk standard applies. Where it bears on practical returnability or an article 8 claim, it must be established on the balance of probabilities.

Expert linguistic evidence must be assessed critically and case by case. Formal academic qualifications are not invariably required. The decisive question is whether the analyst has demonstrated relevant expertise on the particular issue addressed. A tribunal may give limited weight to such evidence where it identifies its shortcomings and evaluates it with the other evidence.

The appellant appealed against the Upper Tribunal's dismissal of his appeal from the First-tier Tribunal. The proceedings arose from the Secretary of State's refusal to revoke a deportation order and her decision to return him to Nigeria.

He maintained that he was a Sierra Leonean, not a Nigerian national. He also relied on his claimed sexuality and physical and mental health. The First-tier Tribunal found, on the balance of probabilities, that he was Nigerian and dismissed his asylum and human-rights claims. The Upper Tribunal initially set that decision aside because it considered that the wrong standard of proof had been used, but dismissed the appeal after a rehearing.

The permitted ground before the Court of Appeal challenged the Upper Tribunal's limited reliance on a Sprakab linguistic-analysis report. The central questions were whether the First-tier Tribunal had applied the correct standard to nationality and whether any error concerning the Sprakab report could have affected the result.

1. Appeal dismissed unanimously. The First-tier Tribunal had applied the correct standard of proof. The applicable standard depends upon the purpose for which nationality is material. A lower standard applies where nationality bears on a feared risk of persecution under asylum law or article 3. The balance of probabilities applies where the issue is practical returnability or an associated article 8 case.

2. Nationality did not bear on the appellant's asserted risk of persecution. His claimed risk as a homosexual did not depend on Nigerian nationality. The proposed marginalisation or onward-refoulement point was advanced only under article 8, and there was no evidence of persecution if he were returned to Nigeria as a non-national. The First-tier Tribunal was therefore entitled to decide nationality on the balance of probabilities. The Upper Tribunal should not have set its decision aside on that ground.

3. In any event, the result would confidently have been the same without the Sprakab report. The other evidence strongly supported Nigerian nationality, including the appellant's long residence in Nigeria, his former solicitors' instructions, the Nigerian High Commission's issue of a travel document, and the Sierra Leonean authorities' refusal to recognise him. His contrary evidence could not rationally outweigh those matters.

4. The Court further held, in an alternative and case-specific consideration, that the Upper Tribunal had not erred in attaching limited weight to the phonological part of the Sprakab evidence. The relevant question was whether the analysts had demonstrated appropriate expertise on the issue addressed, not whether they possessed formal academic linguistic qualifications. The judge had excluded substantial parts of the report and had evaluated the remaining material critically. This conclusion did not add to the general principles stated by the Supreme Court in Secretary of State for the Home Department v MN and KY [2014] UKSC 30.

5. Immigration Act 1971, Schedule 3, paragraph 1(1), permits removal not only to a country of nationality but also to a country or territory where there is reason to believe that the person will be admitted. Nigerian nationality was therefore not itself necessary to the power of removal.

• Court of Appeal (Civil Division): dismissed the appellant's appeal: [2015] EWCA Civ 541.
• Upper Tribunal (Immigration and Asylum Chamber): after finding an error of law in the First-tier Tribunal's earlier decision and conducting a further hearing, dismissed the appeal by a determination promulgated on 2 August 2013.
• First-tier Tribunal: dismissed the appeal against the refusal to revoke the deportation order. It found on the balance of probabilities that the appellant was a Nigerian national and rejected the asylum and human-rights claims.