KJ (Sri Lanka) v Secretary of State for the Home Department

Exclusion from refugee status under article 1F(c) requires serious reasons for considering that the individual bears personal responsibility for acts contrary to the purposes and principles of the United Nations. Membership of, or knowledge about, an organisation which combines terrorism with conventional military action does not suffice. Participation in military action against government armed forces is not itself such an act.

On reconsideration of an immigration appeal, findings unaffected by an identified error of law ordinarily remain binding. Where procedural unfairness vitiated the original hearing as a whole, however, all findings may be reconsidered. In assessing risk from the LTTE, a deserter who merely left the organisation must be distinguished from a defector who aligned himself with its opponents.

The appellant, a Sri Lankan Tamil and former LTTE member, claimed that he would face persecution from both government forces and the LTTE. Following several tribunal proceedings and an earlier consent order for reconsideration, the Asylum and Immigration Tribunal rejected his accounts of detention by both sides. It nevertheless found that he faced a real risk from the LTTE, but excluded him from refugee status and humanitarian protection because of his alleged complicity in acts contrary to United Nations purposes and principles.

The appellant challenged the reopening of earlier favourable findings, his exclusion under article 1F(c), and the rejection of risk from government forces. The Secretary of State appealed against the finding of risk from the LTTE. The principal issues concerned the scope of reconsideration, the personal responsibility required for exclusion, and the distinction between LTTE deserters and defectors.

1. The appellant’s appeal was allowed on exclusion under article 1F(c), but dismissed on the challenges concerning reconsideration and risk from government forces. The Secretary of State’s appeal concerning risk from the LTTE was allowed, and that issue was remitted to a freshly constituted tribunal.

2. The principle in DK (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1747 preserves findings unaffected by an identified error of law. It did not preserve the adjudicator’s favourable findings here. The wrongful refusal of an adjournment meant that the original hearing should not have taken place, so every finding was affected by procedural unfairness. The earlier adjudicator had also made mixed credibility findings, and the later reconsiderations had proceeded without the appellant asserting that selected favourable findings were binding.

3. Article 1F requires personal guilt. The evidential threshold is serious reasons for considering that the person committed the relevant crime or act, and the strength of those reasons must correspond to the gravity of the allegation. Mere membership of an organisation which commits prohibited acts is insufficient. A person who knowingly plans, finances, conspires in, aids or abets a specified act may, however, bear personal responsibility.

4. Terrorism, including the deliberate killing or injury of civilians for political ends, is contrary to United Nations purposes and principles. Conventional military action by an independence movement against government armed forces is not, without more, within article 1F(c). Where an organisation undertakes both kinds of activity, a foot soldier who participated only in military operations and not in terrorism is not excluded merely because he knew of the organisation’s terrorism. Seniority may support an inference of wider agreement and participation.

5. The Tribunal had elided knowledge with complicity. Its findings established only that the appellant participated in military operations against government forces. They disclosed no serious reasons for considering that he was personally guilty of terrorist or other prohibited acts. His exclusion therefore could not stand.

6. Although one reason for rejecting the appellant’s account of army detention was defective, the Tribunal was entitled to reject his evidence about the alleged bribe. That independently supported its rejection of the detention account and its conclusion that government forces presented no real risk.

7. The Tribunal wrongly conflated an LTTE deserter with a defector. The applicable country guidance identified defectors who had aligned themselves with the government or other opponents as potentially at risk, not people who had merely left the LTTE. Since the appellant’s account of detention and suspected defection had been rejected, there was no basis for treating him as a defector or traitor.

1. Court of Appeal (Civil Division): Allowed the appellant’s appeal on exclusion under article 1F(c), dismissed his remaining grounds, allowed the Secretary of State’s appeal, and remitted the assessment of risk from the LTTE to a freshly constituted tribunal: [2009] EWCA Civ 292.
2. Asylum and Immigration Tribunal, 20 November 2007: Reconsidered all issues afresh. It rejected the appellant’s accounts of detention, found no risk from government forces, found a real risk from the LTTE, and excluded him from refugee status and humanitarian protection.
3. Court of Appeal, 2 March 2007: By consent, allowed an earlier appeal and remitted the claim for reconsideration because of arguable errors concerning photographic and expert evidence.
4. Asylum and Immigration Tribunal, July 2006: Rejected the asylum and human rights claims after reconsidering all core issues, including credibility.
5. Asylum and Immigration Tribunal, January–February 2006: Held that the adjudicator had erred in refusing an adjournment and directed reconsideration of all core issues, including credibility.
6. Adjudicator, December 2004: Refused an adjournment, made mixed credibility findings, and dismissed the asylum and human rights appeals. The refusal caused procedural unfairness which vitiated the hearing.