The anonymous protagonist in Secretary of State for the Home Department v BK (Afghanistan) [2019] EWCA Civ 1358 fled Afghanistan for the UK in 2002. He claimed that he had been press-ganged into recruiting for the Taliban, admitting that the role included beating up unwilling villagers. Rejecting his bid for asylum in 2004, an immigration judge found that BK “followed the instructions of his commander and harassed, arrested, detained, tortured and killed people”.

BK eventually settled in the UK anyway, having married a British woman. But the 2004 judgment floated up again when he came to apply for British citizenship years later, and the Home Office cancelled his indefinite leave to remain in 2014. This decision was taken on the basis that BK hadn’t revealed his complicity in war crimes during his settlement and citizenship applications: hence his indefinite leave was “obtained as a result of false information given by him or his failure to disclose material facts” (paragraph 2A, Schedule 2, Immigration Act 1971).

The Upper Tribunal allowed BK’s appeal against the cancellation of his indefinite leave to remain. It effectively revisited the 2004 decision, pointing out BK had never admitted to anything worse than assaulting people under duress, and that the material before the judge did not support the finding that he had tortured or killed anybody.

In the Court of Appeal, the Home Office attacked the tribunal’s reopening of previous finding of fact as contrary to the rule in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702. 

Lady Justice Rose backed BK, but stressed that the circumstances were exceptional. There was no asylum interview before the 2004 hearing where the allegations of war crimes could have been explored, and not much evidence in general for the 2004 judge to go on:

this was an unusual case which was not covered by any of the paragraphs of the Devaseelan guidance. A conscientious tribunal would not have been acting fairly if they had decided that BK had tortured and killed people and hence had committed war crimes and was a person of bad character and hence that his answers to the terrorist activity questions were inaccurate, all on the strength of a few words in the [Presenting Officer’s] Notes which were at best bordering on illegible.

The Court of Appeal then went on to consider whether BK had been dishonest in answering the questions about past terrorism/war crimes. The Home Office argued that “in the light of the 2004 Decision findings, the only possible truthful answer these questions was yes”. But Rose LJ brushed this aside: now that it was established that the 2004 decision was wrong to find that BK had committed war crimes, he could hardly be faulted for denying it.