The applicant was a minor, born in Ireland, whose mother claimed to be a Somali national of Bajuni ethnicity. Her mother’s application for asylum had been unsuccessful. In the course of its examination, a language analysis had been conducted which concluded that she did not speak a Bajuni dialect of Swahili found in Somalia and that she used language typical of a variety of Swahili spoken in Kenya. The mother did not challenge that report at any stage during her asylum application, which culminated in a negative decision from the Tribunal.
The applicant’s mother subsequently applied for asylum on her behalf. The Refugee Applications Commissioner recommended that she not be declared a refugee, and she appealed unsuccessfully to the Refugee Appeals Tribunal, whose decision she challenged by way of judicial review.
The applicant’s sole ground of complaint arose from the fact that the Tribunal declined an application for an adjournment on at the beginning of an oral hearing which was alleged needed to facilitate the submission of an expert language report in support of a claim that the applicant’s mother was of Bajuni ethnicity and Somali nationality, and therefore acted in breach of fair procedures.
In its decision, the Tribunal explained its reasons for refusing the adjournment. It observed that the applicant’s mother’s claim had been heard and completed and that the applicant’s hearing was not a re-hearing of her mother’s claim. Furthermore, it took the view that language analysis reports were generally considered in the overall context of the applicant’s claim along with other matters and were never the sole determinative factor in any asylum appeal. It noted that Bajuni was a dialect of Swahili and was not exclusively spoken in Somalia, so could not be the only determinative factor when ascertaining whether a person was of Somali nationality. It also noted that the applicant’s solicitors had ample opportunity to initiate the process of obtaining such a language report, if they considered it necessary.
The court noted that the applicant’s mother had had three opportunities to advance a claim that she was of Bajuni ethnicity based upon a new language analysis report since her asylum application concluded, in that she had applied for subsidiary protection and leave to remain, but that no such evidence had been submitted. It considered that her failure to submit a new language report on any of those occasions suggested a lack of seriousness about the adjournment application at issue.
The court held that where an asylum claimant had been unfairly denied the opportunity to submit evidence (whether by reason of refusal of an adjournment or by some other decision), he or she had to describe the substance of the excluded evidence and, in addition, the prejudice caused by its exclusion. It found that those essential elements were absent from the applicant’s proceedings.
Lastly, the court considered it disturbing that the proceedings, which it said were comprehensively lacking in merit, had been in the court’s lists for almost four years. It held that it was or ought to have been apparent to the applicant’s lawyers from as early as June, 2010, that an expert language analysis in respect of the mother’s language was not to be sought, and that it therefore was or ought to have been equally apparent that any complaint in these proceedings relating to attempts to submit such a report were redundant and ought not to have been pursued. In the light of this, the court asked to be addressed as to whether a wasted costs order ought to be made in the case.
The High Court refused leave and upheld the Tribunal’s decision