Advocates Library Parliament House Edinburgh EH1 1RF
In Secretary of State for the Home Department v MN & KY  UKSC 30, issued on 21ST May 2014, the Supreme Court unanimously refused the Home Secretary’s appeals against the Inner House decision of 12th July 2013 ( S.L.T. 1143) in an important asylum case.
The appeals concerned two asylum-seekers claiming to be from Somalia but alleged by the Home Office to be from Kenya. The Home Office relied on reports from a Swedish company, ‘Sprakab’ to decide where the claimants came from. The company provided reports in the field of Language Analysis for Determination of Origin (LADO). Sprakab reports were based on brief telephone interviews of applicants by anonymous personnel in Sweden.
Guidance from the Upper Tribunal in an earlier case (RB (Somalia)) had been framed in such a way that it appeared to direct lower tier Judges to rely unquestioningly on Sprakab reports. The Supreme Court has however upheld the conclusion of the Inner House that no guidance of that kind can relieve a First-tier Judge of the need to examine the particular opinion evidence in the particular appeal which that Judge is hearing “critically in the light of all the evidence.” That was not done in these cases. In the case of MN, where the First-tier Judge had not relied exclusively on the Sprakab evidence, the appeal was sent back to the Tribunal. In the case of KY, where the First-tier decision had relied exclusively on the report, the claimant will now be granted refugee status and permitted to stay in the UK.
More generally, the Court indicated that it would be appropriate for the Upper Tribunal to convene a further hearing with a view to issuing new guidance relating to LADO, and in particular to clarify the data by reference to which analysts make judgments on the geographical distribution of a particular dialect or language.
One point of more general application outwith the field of immigration law that arises from the Supreme Court judgment goes to the question of onus of proof. It was suggested in the minority Opinion in the Inner House that, when evidence in the form of an expert opinion is contested, it is sufficient for the party providing that evidence to make the materials on which the opinion was based available to the contesting party, so that the latter can then obtain a contra-report; but that, absent a contra-report, the contesting party may not challenge the opinion evidence simply by criticising it as incoherent, insufficiently reasoned, or offered by parties lacking appropriate expertise. That view has been rejected. The Supreme Court has reaffirmed that it is always open to a party to criticise the methodology and expertise of a report from an expert witness, without being required to produce a contra-report. Opinion evidence stands or falls on its own merits.