The Upper Tribunal amends Country Guidance to account for a dying language
Posted: 15th September, 2022
The appellant in ASA (Bajuni: correct approach, Sprakab reports) CG  UKUT 00222 (IAC) argued that he was born and raised on the Island of Chula until he was 17. He was a citizen of Somalia and of Bajuni origin and therefore he was at risk of persecution on return to Somalia.
In November 2019 the Secretary of State’s decided, on the basis of a Sprakab report (a controversial commercial linguistic analysis company), he was a Swahili speaker from Tanzania. An appeal was dismissed by the First-tier Tribunal, and subsequently set aside by the Upper Tribunal on 15 December 2020. Because of Covid-19 delays, the case only reconvened on 24 March 2022. The court considered the usefulness of the linguistic reports in evidence, in light of how the Bajuni dialect can be seen in daily life today, pointed out to the court by the appellant’s expert evidence. Judgment was given on 25 July 2022.
Using Sprakab’s linguistic analysis
The appellant challenged the Sprakab report using a linguistic expert of his own. The court used the guidance in paragraph 51 of MN and KY  UKSC 30;  Imm AR 981 as their starting point for assessing the reports:
” i) …Sprakab should […] be able to report on both
(a) language as evidence of place of origin and
(b) familiarity with claimed place of origin provided…
ii) As to (a), language:
(a) The findings (on evidence) in RB are to my mind sufficient to demonstrate acceptable expertise and method, which can properly be accepted unless the evidence in a particular case shows otherwise;
(b) The Upper Tribunal ought to give further consideration to how the basis for the geographical attribution of particular dialects or usages can be better explained and not (as it often currently seems to be) left implicit. The tribunal needs to be able to satisfy itself as to the data by reference to which analysts make judgements on the geographical range of a particular dialect or usage.
iii) As to (b), familiarity:
(a) The report needs to explain the source and nature of the knowledge of the analyst on which the comments are based, and identify the error or lack of expected knowledge found in the interview material;
(b) Sprakab reporters should limit themselves to identifying such lack of knowledge, rather than offering opinions on the general question of whether the claimant speaks convincingly…”
Sprakab seemed unable to comment on the origin of the Bajuni or the current geographical location (at ii) (b) above), or whether they had the necessary expertise to even consider it. The lack of evidence meant the court was also limited to only considering what the appellant’s expert had to say on familiarity with the dialect (at iii) above).
As there was limited commentary on Sprakab’s methodology in their report, the court was forced to rely on conclusions in RB (Linguistic evidence – Sprakab) Somalia  UKUT 329 (IAC) that, amongst other things, “[l]inguistic analysis reports from Sprakab are entitled to considerable weight…”.
Unfortunately, the evidence in that case is almost 12 years old. Today, Sprakab is only used for those who claim to identify as Bajuni and to be from Somalia. It doesn’t advise on other nationality disputes. Other entities undertake similar reports instead. Relying therefore on the explanation provided previous cases to make its assessment (particularly paragraphs 48 and 49 of Kennedy v Cordia  UKSC 6), the court concluded that the Report should still amount to expert evidence.
The Sprakab Report falls short: amending Country Guidance
The report used a “fixed in time” approach, which the appellant argued was no longer representative of the situation in the country. Bajuni dialect has changed over the last few decades. As individuals disperse across the region, the Bajuni people are exposed to an increasingly diverse number of Swahili dialects in their everyday life and Bajuni is dying out. Young Bajuni people seem to speak Swahili with a Bajuni accent, only using the odd word or phrase which is specifically Bajuni. None of which, the appellant argues, is appropriately considered in the Sprakab report.
To help rectify this, the court referred themselves to the Country Guidance provided in AJH (Somalia) CG  UKIAT 95, and also reported in SA & Others (Minority group, Swahili speakers)  UKIAT 94, which states:
” What is needed therefore in cases in which claims to be Somali nationals of Bajuni clan identity are made is first of all:
(1) an assessment which examines at least three different factors:
(a) knowledge of Kibajuni,
(b) knowledge of Somali varying depending on the person`s personal history; and
(c) knowledge of matters to do with life in Somalia for Bajuni (geography, customs, occupations etc).
But what is also needed is (2) an assessment which does not treat any one of these three factors as decisive: as the Tribunal noted in Mohamed Ali Omar  UKIAT 06844, it is even possible albeit unusual that a person who does not speak Kibajuni or Somali could still be a Bajuni.”
The cases consider whether the ability to speak Bajuni is an indication of actually being a Bajuni. However, there is no in-depth discussion of what is meant by “speaking Bajuni”, from only using the dialect, being fluent in the dialect, or only using some words and phrases added to other Swahili dialects.
On the basis of the appellant’s expert evidence in this case, the court concluded the linguistic analysis from Sprakab was of limited value: “[t]he Sprakab report does not appear in any way to take account of how people’s language will have changed as they acquire different features in different places as they move around.” Material on the history of the Bajuni people is important because it gives context to the changes in language over time. The court considered it appropriate to change the Country Guidance to reflect this:
” (1) In assessing P’s claim to be a Somali national of Bajuni origin, the decision-maker must take a holistic approach, taking into account the extent of P’s knowledge of:
(a) matters to do with life in Somalia, particularly as relevant to Bajuni (geography, customs, occupations etc);
(b) Somali, the importance of which will vary dependent upon P’s personal history; (c) Bajuni, the importance of which will vary dependent upon P’s personal characteristics and history (including age, family history, residence etc).
(2) Where P seeks to adduce expert evidence of knowledge of Bajuni, this should include a linguistic analysis of the individual’s speech, identifying clearly by reference to morphology, syntax, phonology and vocabulary those features which indicate that he or she is of Bajuni origin; or, that such features are not present. Such reports should also, where possible, indicate how P’s speech compares with known Bajunis of the same age range, bearing in mind that the speech of younger Bajuni is now considerably less different from other dialects or standard Swahili.”
Despite useful changes to the Country Guidance, the appeal was dismissed on all grounds. The appellant lacked of knowledge of specific Bajuni words and phrases commonly used in the Chula area, and his account of his family history and local clans was rusty and inconsistent. The court found that it was not necessarily the absence of Bajuni dialect that undermined his nationality claim. But it was his limited knowledge of Chula and the contradictions in his evidence that meant they were not satisfied he grew up there.
The outcome aside, it is clear that linguistic analysis needs to be used in light of ever changing country circumstances and population diversity. The changes to the Country Guidance are welcomed, even if it means Sprakab has to work harder to give constructive analysis of an individual’s claimed nationality.