BSD, R (on the application of) v The Secretary of State for the Home Department

Kirsty Brimelow KC:

1. The Claimant brings a renewed application for permission to apply for judicial review, pursuant to CPR 54.12.

2. Permission to apply for judicial review was refused by HHJ Coe KC sitting as a Judge of the High Court in a decision sealed on 6 October 2025.

3. The Defendant’s application rests on the common ground that by statute pursuant to s.6 British Nationality Act 1981 (“ BNA 1981 ”) the onus was on BSD to positively demonstrate good character so that the Secretary of State (“SSHD”) could be satisfied of good character as a mandatory pre-requisite to the grant of British Citizenship.

4. The SSHD has no discretion to waive the good character requirement.

5. BSD has previously been found to have been excluded from refugee status under Article 1(F) Refugee Convention because he committed war crimes and/or crimes against humanity because he was personally involved in torturing detainees in the course of his employment by KhAD between 1980 and 1992.

6. SSHD asserts he cannot now rely on Article 33(1) Rome Statute defence because he is excluded from the Refugee Convention as a matter of judicial decision binding on SSHD and he must ask for that decision to be set aside using the application process.

7. It is argued that the Claimant cannot reasonably argue that the Defendant should have gone behind the earlier judicial decision. Further, it is submitted that BSD cannot in any event reasonably argue that the decision was irrational when it involved weighing up the factors for and against good character. The Impugned Decision

8. The Claimant seeks permission to challenge the Defendant’s decision dated 15 August 2024 refusing the Claimant’s naturalisation application, following a request for reconsideration. Background

9. BSD was born in 1964 in Afghanistan. From 1980 until 1992 BSD worked up through the ranks to a senior officer in Khadamat -e Aetla’at-e Dawlati (KhAD), the former intelligence service and internal security agency of Afghanistan, during the period of the Soviet backed People’s Democratic Party of Afghanistan (PDPA) government.

10. BSD claimed asylum in the UK in April 1999. In his asylum interview BSD confirmed that his role in KhAD was an integral part of his claim for asylum. He admitted to inflicting violence and torture on detainees. He had fled to the UK following the fall of the PDPA and suffering torture himself, by the Taliban and the Mujahideen.

11. BSD’s asylum application was considered under Article 1F of the 1951 UN Convention relating to the status of refugees and refused.

12. On 27/08/2007 C appealed that decision. The appeal concluded that the First -tier Tribunal (FTT) decision to exclude BSD from the Refugee Convention protection under Article 1F was correct. The appeal was dismissed under humanitarian protection grounds but allowed under human rights grounds pursuant to Articles 2,3 and 8 ECHR.

13. The FTT Immigration stated “I am entirely satisfied that the appellant was responsible for torturing people, as part of his activities for KhAD. I consider those activities comprise a crime against humanity, and/or a war crime and that consequently, the appellant should be excluded from Refugee Convention protection, with reference to article 1F (a)”.

14. On 03/01/2008 BSD appealed the FTT decision and the appeal was heard by a Senior Immigration Judge who agreed with FTT Immigration Judge’s findings that the Claimant’s activities for KhAD constituted a crime against humanity and/or war crimes and his exclusion from the Refugee Convention under Article 1F was correct. He reasoned that the FTT Immigration Judge did not make a material error of law.

15. In May 2009, BSD made an application to extend his leave to remain. The application remained pending for more than six years, until July 2015. The SSHD granted BSD settlement status/permanent residence or Indefinite Leave to Remain. The Claimant himself points to this being an exceptional decision, in support of his Claim.

16. In February 2020, BSD applied for naturalisation. It took approximately 2 years before a decision was received and the refusal was on 14/02/2022. On 03/03/2022 an application for reconsideration was submitted. This application included an expert psychologist’s report, where BSD levels of suggestibility were considered and he scored in the top 5% of the population for compliance. Reference was made to him having been manipulated and indoctrinated as a 17-year-old, including being sent to Russia for six months, so that he was loyal to the PDPA The SSHD sent a holding reply to the application on 19/08/2022.

17. After pursuit by the Claimant, including with a pre-action protocol letter, the SSHD provided its decision two years and five months after the application for reconsideration, on 15/08/2024, and refused the application. Legal Framework Good Character

18. The material statutory provisions are contained in section 6(1) of and schedule 1 to the British Nationality Act 1981 . There is no statutory duty on the SSHD to grant nationality, only a power to do so, if the applicant satisfied the SSHD as to their ‘good character’ and the SSHD “thinks fit”.

19. The requirement to demonstrate good character for these purposes is derived from paragraph 1(1) of schedule 1 which inter alia provides: “… the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it … (b) that he is of good character.”

20. There is no statutory definition of the requirement of “good character” in paragraph 1(1) of Schedule 1 to the 1981 Act . However, Naturalisation as a British Citizen: the Caseworker Guidance published 25 September 2019 applies.

21. The Court of Appeal in R v SSHD ex p Al Fayed (No 2) [2001] Imm AR 134 considered that good character cannot be defined as a single standard and referred to the decision making of the SSHD and Wednesbury unreasonableness: “It is important to emphasise that the decision to be taken, though, like many such decisions, one which could seriously affect the rights of the applicant, was an administrative decision, reviewable by the courts only if the decision-maker in some way misdirected himself or, having correctly directed himself, gave a decision which no reasonable decision-maker could have given in the circumstances.” OM v SSHD [2016] EWHC 1588 (Admin) at [8] OPH 386 5 [§10].

22. In Tanvir Babar v Secretary of State for the Home Department [2018] EWCA Civ 329 at [33] citing MS (India) v Secretary of State for the Home Department [2017] EWCA Civ 1190 ; [2018] 1 WLR 389 OPH 387 6 12 in the context of the lower character test for leave to remain, the Court of Appeal confirmed that the Secretary of State has a wide-ranging discretion as to good character assessment, as well as a public interest duty to uphold high standards of conduct.

23. The burden is on the Claimant to satisfy the Secretary of State that he is of good character and the Court of Appeal has emphasised the test is a demanding one where a high standard is applied.

24. The grant of British citizenship under section 6(1) of the 1981 Act is not a fundamental human right: R v Secretary of State for the Home Department, ex p. Al Fayed [2001] Imm AR 134, [93] (Kennedy LJ); R (AHK and others) v Secretary of State for the Home Department [2009] EWCA Civ 287 , [10]. The individual has a right to have an application considered fairly under the statutory scheme. It is open to the Secretary of State, within the requirement of rationality, to adopt a high standard of good character, and one higher than other reasonable decision-makers might have adopted: ex p. Al Fayed at [41] (Nourse LJ).

25. The question to be asked is whether the decision as to the standard of good conduct and its applicability to the applicant was one that could be reasonably to adopted in the circumstances.

26. It is established that this means that the proper approach of the courts in considering the standard of good character adopted by the Secretary of State and the application of the concept in a particular case is to ask whether the standard and its application were such as could reasonably be adopted in the circumstances.

27. The Court of Appeal in SK (Sri Lanka) held that the High Court Judge had fallen into error by effectively placing the onus on the Secretary of State to justify why nationality had not been granted, which was contrary to the statutory test: “It is for the applicant to satisfy the Secretary of State that he is of good character. It is not for the Secretary of State to establish that the applicant personally committed a war crime such that he could be tried before the International Criminal Court” (paragraph 37)

28. For completeness, as this is relied upon by BSD, Article 33 of the Rome Statute provides the following in relation to superior orders and prescription of law: 1. the fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

29. Article 31(1)(a) of the Rome Statute provides: 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct: (a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;

30. The Claimant raises that indoctrination of a child and his recruitment and training in the Soviet Union can amount to suffering of a mental defect at that time.

31. The Court of Appeal dismissed the judicial review appeal in DA (Iran) v SSHD [2014] EWCA 654 notwithstanding that DA argued that as a conscript to the Iranian prison service he had no choice in relation to whether he guarded prisoners who were subject to torture. DA emphasised that he was not involved in the torture, did not agree with it and was himself a ‘victim’ of the regime. Also, DA claimed to have suffered from psychological illness at the time and subsequently as a result of the adverse treatment he received, yet the Court upheld the SSHD’s decision that DA was properly refused nationality on good character grounds. DA relied on having lived an exemplary life in the UK to offset his past behaviour, but the Court considered that living a usual or normal life in the UK did not make any material difference.

32. Finally, the standard of good character given by paragraph 1.2 of Annex D and paragraph 2.1 of the War Crimes Guidance is a high one. The onus is on the applicant to satisfy the Secretary of State that he is of good character, and it is declared that there will be serious doubts which may prevent him from doing so if he has “supported” a group “whose main purpose or mode of operation consisted in the committing of [war crimes etc], even if that support did not make any direct contribution [to the war crimes]”. Judicial Review

33. The burden is on the Claimant to show that the Secretary of State was irrational or erred in law in considering the application. It is not to commence a review of the merits but the lawfulness and rationality of the decision maker in making the impugned decision. The courts’ function and limitations in judicial review proceedings is clearly summarised in the judgment of R(Westech College) [2011] EWHC 1484 (Admin) , albeit the application is in the context of an immigration claim, referring back to the judgment of Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QB in passages which were expressly approved on appeal in that case by Lord Phillips MR [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal that on a judicial review application “… The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth …. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests”. The Claim

34. BSD renewed application seeks permission on three grounds of claim on judicial review which argue that the impugned decision was Wednesbury unreasonable because of (i) An allegation of failure to consider the Article 33 defence under the Rome Statute in relation to the conduct that led to BSD’s exclusion under Article 1 F of the Refugee Convention or alternatively, Article 31 should have been considered in the context of indoctrination amounting to “mental defect” (ii) An allegation of failure to consider the applicability of Article 20 of the ICCPR to BSD’s conduct that led to his exclusion under Article 1 F of the Refugee Convention; and (iii) An allegation of failure to attribute “due weight” to the evidence of BSD’s remorse and rehabilitation and conduct in work and raising three exemplary children who have become professionals in their work.

35. Ms. Anderson, on behalf of the SSHD submit that the arguments of the Claimant sought to engage the court in a further appeal, outside the well- defined limits of a judicial review. She relies on there being a binding judicial finding by the FTT after considering evidence that excluded BSD from the Refugee Convention under Article 1F and that an attempt to rely on any defence at that stage would be going behind that finding. It is noted in argument that BSD did not seek to run a Rome Statute defence in his statutory appeal against the exclusion decision. Mr. Bazini, for the Claimant points the difficulty of attempting to re-open appeal of the judicial finding due to a potential application being 17 years out of time. He made a similar argument in relation to an application to judicially review the FTT decision.

36. Further, I was addressed by both parties in relation to the international defences under both Articles 31 and 33. In summary, BSD would have needed to demonstrate to the FTT that there was a threat of grave imminent and irremediable peril if he resisted (see the International Law Commission (ILC) UN GAOR Supp.No.10: UN doc. A/42/10/ (1987) at 18, as referred to in paragraph 26 of [2012] UKUT 236). The SSHD, whilst not accepting that the matter could be re-litigated, did consider BSD’s submissions in relation to Article 33, including the argument that BSD was not engaged in crimes against humanity as the torture was carried out on military opponents, those suspected to be part of the Taliban or Mujahideen, rather than civilians. However, the SSHD reasoned that KhAD had a broader role in suppression of opposition than had been recognised by BSD in its arguments, including civilians, and BSD was part of the structure that enabled torture against civilians. Judgment

37. In considering the argument of BSD that the FTT did not make a finding in relation to Article 33 or 31, BSD did not raise the defence. The FTT did make a finding that BSD was involved in crimes against humanity/war crimes. The arguments by BSD that his actions of torture did not include civilians and so should be classified as a war crime rather than a crime against humanity do not address the fact of the evidence considered by the SSHD.

38. As well as taking into account the ruling of the FTT, as upheld on appeal, the SSHD considered the facts from BSD’s asylum interview in the UK on 09 April 1999, when BSD accepted his complicity in torture. In summary, BSD stated that he worked for KhAD between January 1980 and 1992 and he rose through the ranks to the position of Dagarman and assumed responsibility for 120 members of staff.

39. BSD claimed to have been directly involved in inflicting torture to try and gain confessions from detainees. He received orders to do this from the Head of KhAD. He listed his methods of torture as including beatings, electrocutions, and the denial of clothing to hurt, undermine and embarrass his prisoners. He also used gymnastics as a form of torture to induce exhaustion in individuals and then ensured that his victims were sleep deprived. He confirmed that after his investigations were complete, he would refer the tortured people to a higher department to see if they wished to authorise their executions.

40. No evidence was presented to support an argument that BSD acted on orders due to “grave, imminent and irremediable peril” ( ILC ) if he resisted. Further, SSHD considered that BSD’s initial recruitment, when he was 17 years’ old, was to a clerical role. His undertaking of torture was some five years later, as he rose through the ranks of KhAD, including after spending time outside Afghanistan, in India.

41. When considering the definition of Crimes against Humanity, pursuant to Article 7 of the Rome Stature, regardless of whether BSD’s actions were directed at the Taliban and Mujahideen as opposed to civilians, he was a high-ranking member of KhAD, a body that also suppressed parts of the civilian population. Regardless of the findings of the FTT, which the SSHD was entitled to consider, it is a strong argument that BSD enabled KhAD’s violent outcomes in areas where he was not directly involved, including crimes against humanity. The SSHD is entitled to adopt a high standard when considering good character in the context of international crimes, including crimes against humanity, war crimes and torture. Torture itself is jus cogens and all States have a legal interest in its prohibition.

42. The Claimant also points to the SSHD not having given sufficient weight to the reasons for his engagement in torture, namely indoctrination, and also he relies upon his honesty and openness in accepting what he has done, his remorse and his exemplary life over 24 years living in the United Kingdom, including a family life where his three children have gone into professions.

43. These are similar arguments as were made in Barbar, albeit in relation to the lower threshold for character, conduct and associations in the leave to remain application context. The Court of Appeal, in considering Mr. Barbar’s blameless residence in the UK and good work record held that: “ If these considerations were sufficient to claim ILR for all those excluded from the Refugee Convention, it would significantly undermine the important public interest in the UK acting in accordance with its international obligations and maintaining its international reputation .”

44. It might be thought that there is a point of redemption after 32 years and BSD may consider that he has received that redemption through being able to live a full life in the United Kingdom. He acknowledged in his witness statement that he had been given a second chance. However, in determining statutory good character, the SSHD considered all material relevant to the application, attesting to BSD’s impeccable character since entering the UK, together with an expert report from a Clinical psychologist. Whilst abiding by the law is a minimum requirement, the SSHD concluded that there were not any strong countervailing factors in BSD’s conduct that outweighed the severity of his actions for KhAD in Afghanistan. In reaching this decision the SSHD had regard to the detail of the torture and willingness of BSD to carry out such acts. They also considered BSD’s 12-year work for KhAD and his movement up the ranks.

45. The SSHD is entitled to conclude, as it did, that BSD did not meet the good character requirement due to BSD’s long-term work for KhAD and participation in torture of prisoners and onward forwarding of those people for extra-judicial killing. The burden is on the Claimant to satisfy the SSHD in its application. It failed to do so and to the extent that it is difficult to see how the SSHD could have reached a different conclusion when applying public interest considerations to the protections of international law, including its commitment to upholding international law in relation to crimes against humanity and violation of human rights. There is public interest in not appearing to disregard heinous acts, whilst also properly considering progress and change advanced by the applicant.

46. There are no errors of law or irrationality in the reasoning of the decision maker and the refusal of the renewed application for British Citizenship is a decision within the broad statutory discretion of the Secretary of State.

47. The renewed application for permission to judicially review the decision is refused.

48. The costs of the Acknowledgment of Service ordered by HHJ Coe at paragraph 2 of the order, sealed on 6 October 2025, will be reinstated. There is no order for costs of the renewal hearing.