R (on the application of JS) (Sri Lanka) v Secretary of State for the Home Department

Exclusion from refugee protection for a war crime requires personal responsibility. Membership of an organisation which commits war crimes creates no presumption of complicity.

There must be serious reasons for considering that the applicant voluntarily contributed in a significant way to the organisation’s ability to pursue a purpose involving war crimes, while aware that the assistance would further that purpose. Liability extends beyond direct perpetrators and domestic joint enterprise principles. It may encompass substantial physical, logistical or other assistance.

The assessment must examine the applicant’s actual role and all material circumstances. Organisational character, recruitment, opportunity to leave, rank, duration, knowledge and personal contribution may be relevant, but no fixed or exhaustive checklist replaces the individualised inquiry.

The respondent, a Sri Lankan Tamil, joined the LTTE as a child and later held combat, transport, security and intelligence roles. After arriving in the United Kingdom, he claimed asylum. The Secretary of State refused the claim solely under article 1F(a) of the Refugee Convention, reasoning that his voluntary membership and command responsibility established complicity in the LTTE’s war crimes.

Because section 83 of the Nationality, Immigration and Asylum Act 2002 prevented a statutory appeal, the respondent sought judicial review. The Court of Appeal quashed the refusal and remitted the claim for redetermination: [2009] EWCA Civ 364; [2010] 2 WLR 17.

The central issue was what must be proved, beyond membership of an organisation which commits war crimes, before an asylum seeker is personally responsible and excluded under article 1F(a).

1. Appeal dismissed unanimously; order varied. Lord Brown delivered the leading judgment. Lord Hope endorsed his test, and Lords Rodger, Walker and Kerr agreed. The Secretary of State’s refusal was lawfully quashed, but redetermination was to be governed by the Supreme Court’s judgments rather than the Court of Appeal’s formulation.

2. Article 1F(a) of the Refugee Convention has an autonomous international meaning. It must be interpreted restrictively and applied cautiously. The Rome Statute of the International Criminal Court is the appropriate starting point for identifying both the relevant international crime and the principles of individual responsibility.

3. Per Lord Brown, an applicant is excluded where there are serious reasons for considering that the applicant voluntarily contributed in a significant way to an organisation’s ability to pursue its purpose of committing war crimes, while aware that the assistance would further that purpose. Lord Hope identified significant contribution and actual furtherance of the criminal purpose as the essential elements fixing personal responsibility. Direct commission of an identifiable crime is unnecessary.

4. Articles 25 and 30 of the Rome Statute of the International Criminal Court, article 12(3) of the Qualification Directive (2004/83/EC) and article 7(1) of the ICTY Statute recognise liability for ordering, instigating, aiding, abetting, assisting or intentionally contributing to international crimes. These principles are wider than domestic joint enterprise liability. Awareness that a consequence will occur in the ordinary course of events supplies the requisite knowledge and intent.

5. The approach in Gurung v Secretary of State for the Home Department [2002] UKIAT 04870 was disapproved insofar as it suggested that very little beyond voluntary membership of a predominantly terrorist organisation was required, or that complicity could be presumed. Its proposed continuum was also misleading. The inquiry must instead examine the individual’s actual role and all material facts. Relevant considerations may include the organisation’s nature and size, proscription, recruitment, opportunity to leave, rank, duration of membership, knowledge and personal contribution.

6. The refusal letter was insupportable. Neither the LTTE nor its Intelligence Division had been shown to be predominantly terrorist in character. Command of a combat unit did not establish responsibility under article 28, and military action against government forces was not itself a war crime. The respondent’s logistical role might present a serious exclusion issue, but it required a properly reasoned, individualised assessment.

7. The phrase “serious reasons for considering” establishes a standard above mere suspicion, although below the standard governing a criminal trial for war crimes. The Convention’s language should not be replaced by an elaborate paraphrase.

1. United Kingdom Supreme Court: In R (on the application of JS) (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15, the court unanimously dismissed the Secretary of State’s appeal but varied the order so that redetermination would follow the Supreme Court’s judgments.
2. Court of Appeal: The court quashed the Secretary of State’s refusal and remitted the asylum claim for redetermination: [2009] EWCA Civ 364; [2010] 2 WLR 17.
3. Secretary of State: The asylum and humanitarian-protection applications were refused solely under article 1F(a) of the Refugee Convention. Judicial review was pursued because section 83 of the Nationality, Immigration and Asylum Act 2002 precluded a statutory appeal.