The Secretary of State for the Home Department (SSHD) appealed against the decision of the Upper Tribunal (UT) Immigration and Asylum Chamber to allow the appeal against the cancellation of our client, BK’s indefinite leave to remain (ILR) in the UK.
It was a successful outcome as the Court of Appeal found no ‘error of law in the UT’s finding’ and upheld the UT’s decision to allow the appeal against the cancellation of our client’s indefinite leave to remain.
BK is a national of Afghanistan who was born on 1 January 1977. He arrived in the United Kingdom in 2002 and sought asylum. His claim for asylum was refused for non-compliance and he appealed.
BK was unrepresented at his appeal in October 2004 and it was dismissed. The Adjudicator described BK’s oral evidence of his early life and of how he had been conscripted into the Taliban, working as a bodyguard to one or two commanders in 1995 or 1996. The Adjudicator found that the BK “followed the instructions of his commander and harassed, arrested, detained, tortured and killed people”.
BK did not challenge the removal decision and in 2007, he was removed from the UK to Afghanistan. Once back in Afghanistan, he applied for entry clearance as the spouse of a person settled in the UK, namely his British wife, CH who he had married in 2007. The application was successful and he re-entered the UK on 2 August 2007. BK then made an application to the SSDH for indefinite leave to remain (ILR).
It is the answers that BK gave in the application form in relation to his ILR that formed a major part of his appeal. The application form asked “the terrorist activity questions”, to each of which BK answered “no”.
On 22 September 2009, BK was granted ILR. He subsequently made an application for British citizenship. Again, BK answered 'no' to each “terrorist activity” question. His application was refused. The grounds for refusal were that the evidence given in his asylum appeal was that he had served with the Taliban and been responsible for war crimes. The SSHD was not satisfied that BK was a person of "good character" for the purposes of the British Nationality Act 1981. The SSHD stated that BK’s assertion that he had carried out these crimes on the orders of a superior officer did not amount to a defence of his actions. Despite that letter, the SSHD took no imminent action to curtail or cancel BK’s ILR in the UK.
In 2012, BK went back to Afghanistan on a visit and married an Afghani woman. He then returned to the UK and in 2013 went back to Afghanistan for the birth of his daughter. On 24 September 2013, on arrival into Heathrow, he was questioned by an Immigration Officer. His ILR was suspended pursuant to Schedule 2 of the Immigration Act 1971.
The SSHD interviewed BK and he stated that that he was not guilty of war crimes, he had no practiced deception and that he was a person of good character. Upon investigation, the SSHD cancelled BK’s ILR and formally refused him leave to enter the UK. It stated that BK had employed deception or had failed to disclose material facts on three occasions; first, in his application for ILR in July 2009, secondly in his application for British citizenship and thirdly in a 2014 interview during the SSHD's investigation. The refusal letter set out the legal definition of war crimes and crimes against humanity, stating the SSHD was satisfied that BK’s activities met those criteria. The SSHD rejected BK claims under the immigration rules, based on his right to family life and private life (BK had a son with his former wife CH born in 2007). The letter concluded that the interests of the state outweighed any family/private life that BK may have accrued in the United Kingdom.
BK appealed against that decision to the First-tier Tribunal (FtT). The FtT dismissed the appeal against the cancellation of his ILR and on family/private life grounds. However, that decision was set aside by the Upper Tribunal (UT) on the grounds that FTT had misstated the proper burden of proof in relation to deception
The UT re-heard the appeal and allowed it in a decision handed down on 8 April 2016. Notwithstanding the finding of the Tribunal in 2004 that BK had “harassed, arrested, detained, tortured and killed people”, the UT held that on the basis of BK’s evidence before them, the particular circumstances of the hearing before and the submissions made to them, BK had not killed or tortured anyone and that any actions he had undertaken were done under duress and even if they were considered as war crimes he would have had a defence. It followed that BK had not genuinely thought he had committed a war crime or was otherwise not of good character and therefore the SSHD had not demonstrated that BK had used deception at any point.
In addition, although it was not necessary, the UT also found it would be a breach of BK’s Article 8 rights due to the bond between him and his son.
The SSHD were refused permission to appeal by the UT but were subsequently granted permission to appeal by the Court of Appeal.
The grounds of appeal put forward by the SSHD were that the UT erred in law in the following ways:
i) Ground 1: The UT went behind the specific finding of fact by the Adjudicator in 2004 that BK had, as a member of the Taliban, "followed the instructions of his commander and harassed, arrested, detained, tortured and killed people". Under the Devaseelen principles the UT was not permitted to behind that finding of fact.
ii) Ground 2: The UT's conclusion that BK had not tortured or killed people was perverse.
iii) Ground 3: If it is right that the UT was not permitted to go behind the Adjudicator's findings in 2004, then their findings that BK’s denial of those activities was true was not a finding open to them and was thus also perverse.
iv) Ground 4: The Tribunal erred in its approach to the question of deception.
v) Ground 5: The Tribunal's analysis under article 8 was fundamentally flawed by its earlier finding that BK did not torture or kill anyone.
During the hearing the SSHD said she was not pursuing Ground 5 and so conceded that BK did have an Article 8 right to remain in the United Kingdom.
The Court of Appeal Judges rejected all four grounds of the appeal.
With respect to the SSHD’s argument that following the Devaseelan principles, the UT in 2016 should not have departed from the Adjudicator’s findings in 2004 that BK had killed and tortured people, the Court considered the case law with respect to the Devaseelan principles and stated (para 44):
I do not accept that in addressing the question of whether the finding of fact should be carried forward in that way, the tribunal is only entitled to look at material which either post-dates the earlier tribunal's decision or which was not relevant to the earlier tribunal's determination. To restrict the second tribunal in that way would be inconsistent with the recognition in the case law that every tribunal must conscientiously decide the case in front of them. The basis for the guidance is not estoppel or res judicata but fairness.
The Court then went on to find that UT had not made an error of law in reaching a different conclusion to the Adjudicator in 2004 on the basis of the evidence before them.
In terms of good character, the Court noted at paragraph 54 (possibly with reference to the Conservative leadership contest that was in progress at that time):
The Upper Tribunal had plenty of evidence before them as to BK's excellent character in more recent years. Many people - even those putting themselves forward for the highest public office – are challenged to explain earlier misconduct including criminal conduct. They do so on the basis that that misconduct was committed at other times and in other places. Experience shows that people are "considered to be persons of good character" if their subsequent conduct demonstrates that the earlier faults were atypical and not indicative of some deep-seated malevolence. That was what the Upper Tribunal found here and in my judgment they were entitled to make that finding.
This case confirms that the basis of the Devaseelan principles is fairness and every Tribunal must decide the case on the evidence in front of them. It was possible, on the particular facts of this case, to persuade the UT in 2016 to come to a different conclusion about BK committing war crimes to the Adjudicator in 2004, 12 years previously.
BK was represented by Immigration and Public Law solicitor Stefan Vnuk of Duncan Lewis Solicitors. Counsel instructed in the matter were Stephen Knafler QC of Landmark Chambers and Patrick Lewis of Garden Court Chambers.