The 2007 rejection of anonymous language analysis by the Swedish Migration Court of Appeal: A precedent?
Type of text: Bokkapitel
Published by: Nijmegen: Wolf Legal Publisher
Author: Gregor Noll
Available at: https://lup.lub.lu.se/search/publication/4004882
Short description of text
A case brief of a mother and daughter seeking asylum due to being Rohingya in Burma and the language assessment that was conducted in order to ascertain their nationality. Furthermore, the author critiques the appeals process and the rejection of their asylum claim from the Migration Court of Appeal.
Most important results
“The applicants did not submit documentary evidence of their Burmese origin. The first instance Migration Board (Migrationsverket) ordered a language analysis. It took the form of a telephone conversation between the analyst and the applicant, in the course of which the applicant’s local and regional knowledge was tested.1 As emerged from the representations made by the Migration Board in the second-instance proceedings in the Migration Court (Migrationsdomstolen), this language analysis led the Board to believe that the applicants were citizens of Bangladesh rather than Burmese, and therefore not in need of protection. The applicants appealed. The Stockholm Migration Court rejected the appeal.” (p.3)
“The Migration Court found it to be probable that the applicants originated from Bangladesh, basing itself mainly on arguments related to language and local knowledge. It found it improbable that a 32-year old person who had moved to another language area would completely forget its original dialect (Arakanbengali). Also, the Court noted that the applicant could not speak any Burmese, and was unable to name any of the larger cities in her home region.The applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen), which granted leave to hear the case. In proceedings at the Migration Court of Appeal, the applicants asserted that the judgment of the Migration Court was based to an excessive degree on the language analysis carried out at first instance.” (p.3)
“From their point of view, this analysis cannot possess a high evidentiary value, as the analyst is anonymous. The applicants argued that anonymity impedes any assessment of his or hers competence. It also bars a proper assessment of questions and answers on local knowledge. Additionally, the applicants gave explanations relating to the mother’s linguistic characteristics and to her lack of local knowledge and of the Burmese language. The applicants also stressed that the Migration Board itself no longer cooperates with the language analysis business which carried out her analysis as it does not identify its analysts, and that a Board report conceded that at least one in ten language analysis reports is wrong. Moreover, the applicants drew the attention of the Court to the fact that Court interpreters were required by law to undergo authorization by the Swedish Chamber of Commerce, in the course of which the knowledge of the interpreter is tested. Giving a language test evidentiary value would presuppose that the analyst be subjected to the same demands.” (p.2-3)
“The Migration Board informed the Court that its current contract with its sole provider of language analysis services (Verified AB) stipulates that the identity of an analyst is to be made known to the Board if this information is needed as evidence in court proceedings or otherwise in order to affirm the correctness and/or quality of the language analysis. In the case under appeal, however, language analysis was provided by another company and the analyst is anonymous. However, it has been made known to the Board that the person in question has a higher education degree from Sweden and grew up both in Burma and in Bangladesh. Arakanbengali is his mother tongue and he has a good command of Burmese.” (p.3)
“The Migration Court of Appeal held that it is for the applicant to render probable his statements on nationality or country of origin. It believes that the language analysis in question had a more than negligible impact on the assessment of the applicants’ origin. The Court pronounced itself on its evidentiary value as follows:
It is the view of the Migration Court of Appeal that a language analysis of the kind at issue in the present case can only possess a marginal evidentiary value, as it has been carried out in a manner that does not fulfil reasonable demands on legal certainty. No quality control has been possible, because it was impossible to identify neither the analyst nor the qualifications and capabilities of that person for that assignment.” (p.3)
“The Migration Court of Appeal found however, that an assessment of all elements of the case and “mainly disregarding from the result of thelanguage analysis” (“med bortseende I huvudsak från resultatet av språkanalysen”) resulted in that the applicants had not made probable that they originated from Burma. It therefore rejected the claim.” (p.3)
“Yet it is not without interest, although it will leave us at loss if we try to extract precedent value from it. It tells us that any “objective” assessment of the applicant’s origin by means of her language or her knowledge of what is “local” to her origin brings us straight back to the most subjective of all questions: what are the markers of truth, and how are we to read them? The Court did not wish to delegate this question to profit-seeking businesses employing anonymous “experts”. In that, it did well. But it actually substituted the shadowy language experts with its own shadowy and inarticulate finding” (p.5)