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In Secretary of State for the Home Department v BK (Afghanistan) v [2019] EWCA Civ 1358 the Court of Appeal upheld the determination of the Upper Tribunal allowing the Appellant’s appeal, relying on the principle of fairness as underpinning the application of the Devaseelan principles (the correct approach where there has been a previous determination). Often, the parties to an appeal where there has been a previous determination will want to depart from the findings of fact and law previously made. Such a situation has been governed by the very detailed and specific guidance given by the IAT in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, [2003] Imm AR 1.

However, in circumstances where the SSHD submitted that the guidance in Devaseelan did not apply to the evidence that the UT had relied upon to depart from the previous findings of fact in this case, the Court of Appeal held that the UT was right because the approach was fair.

The Devaseelan guidance is set out at §32 of the judgment:

(1) The first adjudicator’s determination should always be the starting-point. It is the authoritative assessment of the appellant’s status at the time it was made. In principle issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first adjudicator’s determination can always be taken into account by the second adjudicator.
(3) Facts happening before the first adjudicator’s determination but having no relevance to the issues before him can always be taken into account by the second adjudicator.
(4) Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection.
(5) Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution.
(6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator’s determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant’s failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.
(8) The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.

The case advanced by the SSHD was that the circumstances of this case did not fall within the parameters of the Devaseelan guidance.

She argued that there was a material misdirection when the UT stated that they were entitled to depart from the findings in the 2004 decision only in certain circumstances for example when new evidence had emerged: see [48]. That was a misdirection because, Mr Malik argues, the Devaseelan guidelines make clear that the new evidence must normally be either evidence which post-dates the earlier determination or evidence of facts which were not material to the earlier determination. There is no recognition of this in the Upper Tribunal’s judgment. There was no new evidence fitting into either of those categories.

However, the Court rejected these submissions. The Court reminded itself of what was said by Judge LJ in Djebbar v SSHD [2004] EWCA Civ 804:

  1. Perhaps the most important feature of the guidance is that the fundamental obligation of every special adjudicator independently to decide each new application on its own individual merits was preserved.

  2. … The great value of the guidance is that it invests the decision-making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator’s ability to make the findings which he conscientiously believes to be right. It therefore admirably fulfils its intended purpose.

It found that the Devaseelan guidance was rooted in the principle of fairness, and that the UT had not erred in law in allowing this appeal despite the circumstances not coming squarely within the specific guidance given in Devaseelan.

This would seem to indicate a refined application of the Devaseelan principles that is not confined to simply applying the specific guidance set out by the IAT in that case. The Court’s approach permits stepping outside of the parameters of the Devaseelan guidance and allows/ requires an overall assessment of fairness- that, the Court held, being the guiding principle upon which the Devaseelan guidance is based.

Background:

The Appellant, a national of Afghanistan, 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 Asylum and Immigration Tribunal (the predecessor to the First-tier Tribunal) and attended the hearing in October 2004 as a litigant in person.

The Adjudicator accepted that BK had a good reason for not attending the interview. She then set out BK’s oral evidence regarding his early life and 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 key finding made by the AIT which later on would be the basis for the Home Office to reject his subsequent application for British Citizenship was:

“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.”

The AIT found against BK and dismissed his appeal. The determination, and in particular the finding of fact at paragraph 40, was not challenged by BK, and he was removed to Afghanistan.

He subsequently re-entered the UK with entry clearance as the spouse of a British Citizen in 2007 and was thereafter granted indefinite leave to remain (ILR) in 2008. It is the answers he gave in response to the entry clearance application that were the cause of the dispute between BK and the Home Office. In particular the answers he gave to the following questions within the application:

“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?”

 The Home Office sought to rely on the unchallenged finding of fact at paragraph 40 of the previous FtT determination (that he had tortured or killed people as part of his involvement with the Taliban).

In the application for British Citizenship BK was asked similar questions to which he answered ‘no’. That application was refused by the Home Office on the grounds 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 (paragraph 40 of the FtT determination). Further, the refusal letter stated he had committed crimes against humanity. Thus, the Home Office were not satisfied that BK was a person of “good character” for the purposes of Section 41A of the British Nationality Act 1981. The application was refused, but no action was taken at this stage to revoke BK’s ILR.

He subsequently divorced his British Citizen wife in 2011 (with whom he had one child). He returned to Afghanistan, remarried and made an application for entry clearance for his wife (bearing in mind he still retained ILR at this point and so could sponsor his wife). His new wife remained in Afghanistan whilst the application for entry clearance was pending. In the interim he returned to Afghanistan for the birth of his daughter. Upon return to the UK in September 2013 he was questioned by immigration officers and his ILR was suspended pursuant to Schedule 2A of the Immigration Act 1971. He was granted temporary admission pending further investigation.

Cancellation of ILR:

 In April 2014 (7 months later) the Home Office took the decision to revoke BK’s ILR and formally refuse leave to enter. The Home Office relied on paragraph 40 of the 2004 determination. The decision stated that BK had used deception or failed to disclose material facts on three occasions; (1) Application for ILR in 2009 (2) Application for British Citizenship (3) interview in March 2014 during the investigation by the Home Office. The letter stated:

“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.”

 BK’s Article 8 ECHR claims were rejected on the basis that the interests of the state outweighed any family/private life that BK had accrued in the United Kingdom. BK appealed that decision which was dismissed by the FtT. BK’s appeal against the determination of the FtT was successful as the FtT had misdirected themselves on the standard of proof, and a rehearing was ordered by the UT.

 Proceedings before the Upper Tribunal:

During the rehearing, evidence was called regarding the strong parental relationship BK shared with his son from his first marriage. It was also the first time that BK addressed the findings made in the 2004 determination. He asserted that he had never killed or tortured any person(s) and that his activities with the Taliban had been purely due to duress. His evidence was that he had not given evidence to the FtT about killing or torturing and that this may have been misinterpreted when translated as his English was very poor at the time. He therefore, did not believe his answers to the questions in subsequent applications were wrong.

The 2004 determination was the starting point for the UT’s assessment of the evidence pursuant to Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702, [2003] Imm AR 1. However, the UT also had a note from the Presenting Officer at the 2004 hearing owing to a subject access request. Those notes were largely in chorus with the evidence given to the UT by BK and nothing was recorded regarding BK having stated that he had engaged in killing or torture for the Taliban.

The UT held that the note was an accurate record of proceedings and further observed that if such evidence (of killing and torture) had been given the AIT would have had to consider excluding BK from asylum protection under Article 1F of the Refugee Convention 1951, which it did not. It was also noted that having been a litigant in person he was not afforded an opportunity to be re-examined by his counsel/representative. The UT was therefore not satisfied that BK had killed or tortured anyone.

The UT went on to accept that he had not deliberately inflicted pain on anyone in detention and that BK had complied with the Taliban out of fear for himself and his family. The UT observed that BK had fully disclosed in all applications that he had a failed asylum claim, but it was only after 9 years and 5 separate opportunities that the Home Office decided to act on the 2004 determination (two of the previous opportunities was when he was granted entry clearance in 2007 and subsequently ILR in 2009). The UT stressed that the failure to act did not mean the Home Office could not rely on those adverse facts but the passage of time and the background was “helpful in giving some context to [BK’s} evidence about his state of mind when he answered the questions in the way he did.”

The UT also placed reliance on that fact that BK was not fluent in English during his 2004 hearing and that this may have been a factor which meant he was not able to appreciate the “nuances” of the application questions.

The Appeal to the Court of Appeal: was the UT right to dispose of the 2004 determination?

The Home Office appealed against the UT’s decision on the basis that the 2004 determination should have stood as a finding of fact due to guidelines provided in the case of Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702:

  1. We consider that the proper approach lies between that advocated by Mr Lewis and that advocated by Miss Giovanetti, but considerably nearer to the latter. The first Adjudicator’s determination stands (unchallenged, or not successfully challenged) as an assessment of the claim the Appellant was then making, at the time of that determination. It is not binding on the second Adjudicator; but, on the other hand, the second Adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first Adjudicator it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing before the second Adjudicator may be quite different from what might have been expected from a reading of the first determination only. But it is not the second Adjudicator’s role to consider arguments intended to undermine the first Adjudicator’s determination.

The Devaseelan guidance is set out at §32 of the judgment:

(1) The first adjudicator’s determination should always be the starting-point. It is the authoritative assessment of the appellant’s status at the time it was made. In principle issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first adjudicator’s determination can always be taken into account by the second adjudicator.
(3) Facts happening before the first adjudicator’s determination but having no relevance to the issues before him can always be taken into account by the second adjudicator.
(4) Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection.
(5) Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution.
(6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator’s determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant’s failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.
(8) The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.

The case advanced by the SSHD was that the circumstances of this case did not fall within the parameters of the Devaseelan guidance:

He argued that there was a material misdirection when the UT stated that they were entitled to depart from the findings in the 2004 Decision only in certain circumstances for example when new evidence had emerged: see [48]. That was a misdirection because, Mr Malik argues, the Devaseelan guidelines make clear that the new evidence must normally be either evidence which post-dates the earlier determination or evidence of facts which were not material to the earlier determination. There is no recognition of this in the Upper Tribunal’s judgment. There was no new evidence fitting into either of those categories.

However, the Court rejected these submissions. The Court first reminded itself of what was said by Judge LJ in Djebbar v SSHD [2004] EWCA Civ 804:

  1. Perhaps the most important feature of the guidance is that the fundamental obligation of every special adjudicator independently to decide each new application on its own individual merits was preserved.

  2. … The great value of the guidance is that it invests the decision-making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator’s ability to make the findings which he conscientiously believes to be right. It therefore admirably fulfils its intended purpose.

The Court of Appeal then rejected the SSHD’s submissions in no uncertain terms:

  1. 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. A tribunal must be alive to the unfairness to the opposing party of having to relitigate a point on which they have previously succeeded particularly where the point was not then challenged on appeal.

  1. Mr Malik complains that the only new items available to the Upper Tribunal were the PO Notes and the oral evidence of BK which they found to be truthful. That is not the full picture. I agree with Mr Knafler that the content of the PO Notes coupled with BK’s strenuous and credible insistence that he had never told Adjudicator Hands that he had killed or tortured anyone raised a number of serious question marks over the validity of the earlier finding. 

  1. In my judgment those procedural features of the 2004 Decision coupled with the difficulty of identifying the evidence on which the Adjudicator’s finding was based, entitled the Upper Tribunal, once they had recognised that the 2004 Decision was the starting point, to depart from that starting point and make their own assessment of the evidence before them.
  1. The position might well have been different if the Adjudicator’s finding had been based on admissions made in the asylum interview, or in a witness statement or in the course of the hearing. It would also have been different if conflicting evidence had been placed before the Adjudicator and she had decided that she preferred the evidence demonstrating a greater severity of BK’s involvement. As it was, 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 PO Notes which were at best bordering on illegible.

This would seem to indicate a refined application of the Devaseelan principles that is not confined to simply applying the specific guidance set out by the IAT in that case. The Court’s approach permits stepping outside of the very specific parameters of the Devaseelan guidance and allows, or perhaps requires, an overall assessment of fairness- fairness being, the Court held, the guiding principle upon which the Devaseelan guidance is based.

The Court of Appeal’s approach in BK is rooted in fairness. This is a welcome development of the Devaseelan approach. While the test in Devaseelan is of course still relevant, and the starting point for considering a previous determination, it is not the end point. The overall principle is that the outcome must be fair- to both parties of course. Thus, in BK, the Court of Appeal endorsed the UT’s approach which went outside of the parameters of the guidance given in Devaseelan on the basis that this was fair in all of the circumstances.

Conclusion:

The circumstances in this case are unusual. BK had decided to abandon his attempts to seek refuge in the UK, and thus appealing against the 2004 determination was understandably of little importance to him at that time. However, what this case shows is that while the FtT is the lowest rung of the immigration and asylum statutory appeal structure, it is an extremely important one. This is where findings of fact are primarily made, and all cases ultimately depend heavily on the facts.  It is thus of vital importance that proper care and attention is paid to ensuring that the best evidence available is put before the FtT; and that the findings of fact made by the FtT are carefully considered before deciding whether to challenge a determination. Even where an appellant is successful, adverse findings of fact can be made that have consequences going forwards. Careful thought should thus be given to the findings of fact made by the FtT, whether the appeal is allowed or dismissed.

Practical issues re accuracy when considering a determination:

  1. It is important to keep a note of the evidence given and submissions made to the FtT Judge.
  2. Check that the factual background to the claim is accurately recorded in the determination.
  3. Check that any oral evidence has been recorded accurately in the determination.
  4. Even where there is an error, if the outcome is that the appeal has been allowed, careful consideration needs to be given to the benefits of putting any errors right as compared to the potential pitfall that the determination is set aside and thus the outcome is again uncertain. Paragraph 31 of the FtT Procedure Rules might be of assistance where the error is slight, and likely to be readily accepted by the FtT and the SSHD. However, more substantial errors are likely to require more than just reliance upon the “accidental slips or omissions” provision.
  5. Paragraph 32 could potentially assist, but the circumstances in which that paragraph applies are limited. Further, it would result in the determination being set aside, although there is no reason why the re-determination could not be undertaken by the same Judge. But the risk would in any event remain that the outcome could be very different.
  6. Thus, if there are any errors, this is a matter that must not simply be dismissed on the basis that the appeal has been allowed. Careful thought and reflection is advisable. The choices that an appellant will have will not be easy ones, but at least a considered choice will have been made. Further, a detailed note in the legal representative’s file to the effect that this matter has been recognised and discussed will assist if there are future complications. A letter to the SSHD setting out the errors might also be very useful. All of this would be relevant evidence in any future adverse decision based on the errors in the determination.
Sheraaz Hingora

Sheraaz Hingora is a Barrister specialising in Family law, Immigration, Human Rights and unlawful detention matters at Clarendon Park Chambers.

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