The Secretary of State for the Home Department v BK (Afghanistan)

An earlier immigration determination is the starting point for a later tribunal and is authoritative as to the appellant’s status when made. It is not binding or determinative. The later tribunal must decide the new appeal conscientiously and may depart from an earlier factual finding where reliable material casts serious doubt on its foundation.

This flexibility is grounded in fairness rather than res judicata or issue estoppel. The tribunal must consider both the unfairness of relitigating an unchallenged finding and its duty to decide the case before it correctly. Where continuing leave is cancelled for false information, the Secretary of State must prove by cogent evidence, on the civil standard, that the information was both factually false and dishonest.

BK, an Afghan national with indefinite leave to remain, had previously been refused asylum. The 2004 asylum determination recorded that he had tortured and killed people while serving with the Taliban. When he later denied involvement in war crimes and terrorism on immigration and citizenship forms, the Secretary of State cancelled his indefinite leave on the ground that it had been obtained through deception.

The Upper Tribunal treated the 2004 determination as its starting point but found that its most serious factual findings were unsupported by the presenting officer’s contemporaneous notes. It accepted that BK had participated under duress in beating and forcibly recruiting people, but found that he had neither tortured nor killed anyone and had not answered the forms dishonestly. It allowed his appeal against cancellation and, alternatively, under article 8.

The Secretary of State appealed, principally contending that the Upper Tribunal had impermissibly departed from the earlier findings and had misapplied the law of dishonesty.

1. Appeal dismissed. The Upper Tribunal was entitled to depart from the 2004 factual finding that BK had tortured and killed people. Its decision allowing his appeal against cancellation of indefinite leave was confirmed.

2. The principles in Devaseelan require the earlier determination to be the starting point and recognise it as the authoritative assessment of the appellant’s status at that time. They do not make it binding or determinative. Their basis is fairness, not res judicata or issue estoppel. Every tribunal retains the fundamental obligation to determine the new appeal conscientiously on its own merits.

3. A later tribunal’s power to reconsider an earlier finding is not confined to events occurring after the first determination or facts that were irrelevant to it. The tribunal must consider the reasons advanced for treating the earlier finding as unreliable. It must also remain alive to the unfairness of requiring the successful party to relitigate an unappealed issue.

4. Here, the presenting officer’s notes and BK’s credible evidence raised serious doubts about the source of the earlier finding. The notes contained no admission of torture and no clear admission that BK had carried out an order to kill. The earlier hearing had followed no asylum interview or witness statement, the severity of BK’s conduct had not determined the asylum claim, and the illegible words in the notes could not fairly sustain findings of war crimes and bad character. The Upper Tribunal therefore made no error in reassessing the evidence or in accepting BK’s account.

5. Under paragraph 2A of Schedule 2 to the Immigration Act 1971, the Secretary of State had to prove by cogent evidence, on the civil standard, that BK’s answers were factually false and dishonest. The Upper Tribunal permissibly found that his admitted conduct, committed under duress, did not make his answers false. It also considered his genuine understanding, the Secretary of State’s prior knowledge, and extensive evidence of his subsequent good character. Its finding that he had not used deception disclosed no legal error.

6. The challenge to the alternative article 8 decision was abandoned because KO (Nigeria) [2018] UKSC 53 rendered it unsustainable. The entitlement to indefinite leave accordingly revived.

1. Court of Appeal (Civil Division): Dismissed the Secretary of State’s appeal and confirmed the Upper Tribunal’s decision allowing BK’s appeal against cancellation of indefinite leave to remain: [2019] EWCA Civ 1358.

2. Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s determination and remade the decision, allowing BK’s appeal on all grounds. It found that deception had not been proved and, alternatively, that removal would unjustifiably interfere with family life under article 8.

3. First-tier Tribunal: Dismissed BK’s appeal against cancellation of indefinite leave. The Upper Tribunal subsequently set that determination aside because the judge had misstated the burden of proof.