Sweden – Migration Court of Appeal, 7 September 2011, UM 10404-10

Country of Decision:
Country of Applicant:
Date of Decision:
07-09-2011
Citation:
UM 10404-10
Court Name:
Migration Court of Appeal
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Headnote: 

If an applicant has serious criticism of a language test conducted to determine their country of origin, the Migration Board must investigate the grounds before making a decision, or at least respond to the applicant's criticism so that the submission can be completed.

If the Migration Court considers a language test report to be unreliable or inadequate, it can decide to request a new language analysis or return the case to the Migration Board for further investigation, but cannot choose to ignore the analysis entirely.

Facts: 

The applicant sought asylum in Sweden on 28 July 2009. The applicant stated he was from the island of Chula in southern Somalia. He claimed that he had been harassed and beaten up there because he was an illegitimate child. He also claimed that he was approached by Al-Shabaab who wanted to recruit him. When he refused he was assaulted. The applicant stated that he spoke Bajuni but that he also could speak a little Arabic, Somali and Swahili.

The Migration Board ordered a language test of the applicant’s speech. This indicated that the language the applicant spoke on the recording was Swahili. The conclusion of the linguistic expert was that the applicant spoke Swahili at mother-tongue level as it is spoken in Kenya. The analyst also held that the applicant showed limited knowledge of Chula and Somalia. The linguistic expert had a background in Kenya. After the applicant had noted the result of the language analysis he claimed he spoke Bajuni and not Swahili during the recording. The applicant requested that another analyst be given the opportunity to analyse the content. If the recording was no longer available he was willing to participate in a new analysis.

The Migration Board did not grant his request, but dismissed the application on the grounds that it was likely that the applicant was a resident in Kenya and that the case had revealed no evidence to suggest that there was a risk of persecution there.

The applicant appealed the decision to the Migration Court and stressed that the Migration Board had not responded to claims about the language analysis. The Migration Court held that the language analysis carried out was of low quality and therefore had little evidentiary value. Furthermore, the Court held that the applicant in an overall assessment had shown it reasonably likely that he came from the island of Chula and that the application should therefore be assessed in relation to Somalia. Since there was judged to be an internal armed conflict in southern Somalia the applicant was deemed to qualify for subsidiary protection and was granted permanent residence. The presiding judge did not concur with this decision.

The Migration Board appealed this decision to the Migration Court of Apppeal.

Decision & Reasoning: 

The Migration Board pointed out that the Migration Court in its decision had wholly rejected the language analysis and not given it any probative value. The Migration Board claimed it was most likely that the applicant was not telling the truth concerning the language he spoke. If the Migration Court held that the applicant’s claim was credible the Court should have verified the information. Instead, the Migration Board put forward that the Court had applied an incorrect evidentiary assessment principle in the assessment of the language test.

The Migration Court of Appeal had set out in a previous determination (MIG 2007 note.11) requirements for language tests to be conducted in such a way that they attained a certain level in order to be granted probative value in assessing the country of origin of the asylum seeker. The Migration Court of Appeal held that a language test, depending on the circumstances of each case, might have significant probative value.

The Migration Court of Appeal underlined that the Migration Court had a duty to ensure that a case was investigated as the particular circumstances required. For the Migration Board there was no corresponding provision in the relevant law, but in practice a similar principle was applied. Even in the preparatory provisions of the Aliens Act the government underlined that it is of great importance for the individual that the Migration Board is able to examine a case based on as complete grounds as possible.

The Migration Court of Appeal held that if the Migration Court considered the language test to be unreliable or inadequate, it should have ordered a new language test or referred the case back to the Migration Board for further investigation, rather than reject the analysis and allow the appeal on incomplete grounds. In this respect the Migration Court of Appeal allowed the appeal of the Migration Board. However, the Board contended that the matter should be referred back to the Migration Court, but the Migration Court of Appeal held that the Migration Board's handling of the applicant’s case was inadequate.

The Migration Court of Appeal held that the objections the applicant had to the language test results should have resulted in the Migration Board supplementing the evidence before a decision was taken. The applicant should at least have been given the opportunity to carry out a further investigation and the opportunity to complete the submission, but the Migration Board had not even considered the applicant’s objections before making their decision. The Migration Court of Appeal therefore held that both the Migration Board and the Migration Court had seriously erred in their handling of the applicant’s case.

Outcome: 

The Migration Court of Appeal quashed the earlier decisions of the Migration Court and the Migration Board and referred the case back to the Migration Board for a new assessment.

Observations/Comments: 

MIG 2007 note 11 states:

Language analysis has taken the form of a so-called direct analysis in which knowledge questions are asked over the phone directly to the analyzed person. The language analyst has been anonymous for both the Migration Board and the appellants.

According to the Migration Court's view, a linguistic analysis has only a marginal probative value because it has been carried out in a way that cannot be said to meet the reasonable requirements of legal certainty. No quality control has been possible since it has not been possible to identify the analyst and, therefore, nor his qualifications and the conditions for the assignment.

Case Law Cited: 

Sweden - MIG 2006:1

Sweden - MIG 2007 note.11

Sweden - MIG 2011:4