The Secretary of State for the Home Department v BK (Afghanistan)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rose,Baker LJ,Floyd LJ |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1358 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/2728 |
| Date | 30 July 2019 |
[2019] EWCA Civ 1358
Lord Justice Floyd
Lord Justice Baker
and
Lady Justice Rose DBE
Case No: C5/2016/2728
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
The Hon Lord Burns (sitting as an Upper Tribunal Judge) and
Upper Tribunal Judge Bruce
Appeal No IA/20209/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Zane Malik (instructed by Government Legal Department) for the Appellant
Stephen Knafler QC and Patrick Lewis (instructed by Duncan Lewis Solicitors for the Respondent)
Hearing date: 3 July 2019
Approved Judgment
The Secretary of State for the Home Department brings this appeal against the decision of the Upper Tribunal (Immigration and Asylum Chamber) (The Hon Lord Burns, sitting as an Upper Tribunal Judge, and UTJ Bruce) dated 8 April 2016. Permission to appeal was granted by Arden LJ on 25 April 2017. The appeal was then stayed pending the hand down of the Supreme Court's judgment in KO (Nigeria) v SSHD [2018] UKSC 53, [2018] WLR 5273.
The dismissal of BK's asylum application
The Appellant (BK) is a national of Afghanistan who was born on 1 January 1977. He arrived in the United Kingdom in 2002 and sought asylum. He failed to attend an interview and his claim was rejected on the grounds of non-compliance. He lodged an appeal with the Adjudicator (the predecessor to the First-tier Tribunal) and attended the hearing in October 2004 as a litigant in person. The Adjudicator, Mrs P Hands, found first that BK had had a good excuse for not attending the interview. She then 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. In response to the Adjudicator's question about why he was frightened to return to Afghanistan, she records he said he was aware that “a lot of the people he had to be cruel to when he was with the Taliban” are now in power and “they will be seeking revenge”. She recorded him saying “He would personally beat people when he was instructed to do so. These people will remember him and be looking out for him to seek their revenge”.
The Adjudicator then summarised the SSHD's case that BK's claim was based on having worked for the Taliban and that because of this he now fears those who are in power in Kabul: “He was ordered to go and kill specific people by his commander”. Later she recorded:
“21 He explained that he could not remember the names of any of the people who ordered him about. He would be taken by car to a house and shown the people he was to kidnap or kill. He was never given the names of these people.
22 Finally, he explained that he was petrified because now he thinks of all the inhuman things he did then it is little wonder that people would want to exact their revenge.”
The Adjudicator set out the relevant country background material. This included that rank and file members of the Taliban should stay away from the villages of their origin but that a significant number of people who had been forced to be loyal to the Taliban would not face any problem and were being integrated into Afghan society.
The Adjudicator then set out her findings of fact. She said:
“40. The Appellant's own story is one of being the persecutor rather than the persecuted. He followed the instructions of his commander and harassed, arrested, detained, tortured and killed people. He returned to his home and did not suffer any adverse reaction from his fellow villagers.”
She concluded that there was no likelihood that BK would suffer persecution at the hands of the state or by any non-state agents should he return to Afghanistan. He was unable to say “who the important people were that he captured or tortured on behalf of his commander”. She therefore dismissed his claim for asylum.
I shall refer to Adjudicator Hands' decision as the ‘2004 Decision’. BK did not challenge that decision and in January 2007 he was removed from the United Kingdom to Afghanistan.
Once back in Afghanistan he applied for entry clearance as the spouse of a person present and settled here, namely his British wife, CH whom he had married in 2007. That application was successful and he re-entered the United Kingdom on 2 August 2007. BK then made an application to the SSHD for indefinite leave to remain. It is the answers that BK gave in the application form for that leave that form part of the dispute between the parties to this appeal. The application form asked the following questions (‘the terrorist activity questions’) to each of which BK answered “No”:
“8.3 In times of either peace or war have you or any of your dependents who are applying with you ever been involved, or suspected of involvement, in War Crimes, crimes against humanity or genocide?
8.4 Have you or any dependents who are applying with you ever been involved in, supported or encouraged terrorist activities in any country?
8.5 Have you or any dependents who are applying with you ever been a member of, or given support to, an organisation which has been concerned in terrorism?
8.6 Have you or any dependents who are applying with you ever, by any means or medium, expressed views that justify or glorify terrorist violence or that may encourage others to terrorist acts or other serious criminal acts?
8.7 Have you or any dependents who are applying with you ever engaged in any other activities which might indicate that you may not be considered to be persons of good character?”
On 22 September 2009 BK was granted indefinite leave to remain.
BK subsequently made an application for British citizenship. The application form included the terrorist activity questions and BK again answered ‘no’ to each of those questions. His application for citizenship was refused by letter dated 20 December 2011. The grounds for refusing citizenship were that the evidence he had given in his asylum appeal was that he had served with the Taliban and been responsible for war crimes namely murder, torture, wilfully causing great suffering and serious injury to body or health. In addition the refusal letter said he had committed crimes against humanity. The Secretary of State was not satisfied therefore 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 action at that stage to curtail or cancel BK's leave to remain in the United Kingdom.
After BK and CH had started their relationship, CH fell pregnant with twins but unfortunately she had a miscarriage at 18 weeks. She and BK later had a son, born in August 2007 to whom I shall refer as C. BK and CH were divorced in 2011. In 2012 BK went back to Afghanistan on a visit and was married there to an Afghani woman on 2 November 2012. He then returned to the United Kingdom and sponsored an application made by his new wife for entry clearance. In September 2013 he went back to Afghanistan for the birth of his daughter and on 24 September 2013 he flew back to Heathrow. On arrival he was questioned by an Immigration Officer and his indefinite leave to remain was suspended pursuant to Schedule 2 of the Immigration Act 1971. The Officer granted him temporary admission pending further investigation.
The cancellation of BK's indefinite leave to remain
As a result of the investigation triggered when BK entered the country on 24 September 2013, the SSHD cancelled BK's indefinite leave to remain and formally refused him leave to enter the United Kingdom. The letter notifying him of this decision was dated 17 April 2014 (‘the IDL Letter’). The IDL Letter quoted from the 2004 Decision of Adjudicator Hands and concluded that as BK had represented himself throughout the appeal hearing, the Adjudicator had reached her findings based on the evidence presented by him at the appeal. It stated that BK had employed deception or had failed to disclose material facts on three occasions; first, in his application for indefinite leave to remain in July 2009, secondly in his application for British citizenship and thirdly in an interview on 20 March 2014 during the course of the SSHD's investigation. The deception was said to arise from the contrast between the evidence recorded by Adjudicator Hands at the hearing of BK's asylum appeal in October 2004 and his denials in the answers he gave to the terrorist activity questions. The IDL Letter set out the legal definition of war crimes and crimes against humanity and said that the Secretary of State was satisfied that the activities that BK had described to Adjudicator Hands met those criteria. The letter says:
“30. It is believed the reasons for answering no to the questions posed … were not born out of a genuine lack of understanding of the application form but relates to a blatant attempt on your part to deceive the Home Office by knowingly failing to disclose material facts, namely; that you had harassed, arrested, detained, tortured and killed people as part of your role whilst a member of the Taliban.”
She cancelled his indefinite leave to remain pursuant to Schedule 2(8) of the Immigration Act 1971. The SSHD went on to reject BK's claims under the immigration rules based on his right to family life and private life. 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. The FTT (Judge Denson) dismissed the appeal. Judge Denson's decision was set aside by UTJ Bruce on the grounds that the he had misstated the proper burden of...
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