SK v The Secretary of State for the Home Department

For exclusion under Article 1F(a) of the Refugee Convention, Article 7.1 of the Rome Statute provides the usual working definition of a crime against humanity. Where conduct does not fall within an expressly listed category, the Tribunal must determine whether it is an inhumane act of a similar character, intentionally causing great suffering or serious physical or mental injury.

The assessment must address the crime’s purpose, intent and effect, and the individual’s knowing and intentional participation. A participant in a joint enterprise need not independently make a substantial contribution as a separate legal requirement. Active and intentional participation in mob violence committed to achieve the criminal purpose will ordinarily itself amount to a substantial contribution and found personal responsibility.

The appellant, a Zimbabwean national, appealed against the refusal of asylum and proposed removal. Her appeal had succeeded under Article 3 of the ECHR, but her asylum claim was dismissed because she was excluded by Article 1F of the Refugee Convention for participating in violent farm invasions.

An Immigration Judge found that she had beaten farm workers during two invasions, although she had not killed anyone, set homes on fire, or held a leading role. Reconsideration was ordered because the earlier decision had not addressed whether those acts were of similar character to the acts listed in Article 7.1 of the Rome Statute. The reconsideration was confined to that question, while the earlier findings on participation and coercion remained in place.

The central issues were whether the invasions were crimes against humanity under Article 7.1(k), and whether the appellant’s role created individual criminal responsibility.

1. The appeal was dismissed. The two farm invasions were crimes against humanity, and the appellant’s active participation excluded her from refugee status under Article 1F(a) of the Refugee Convention.

2. Article 7.1 of the Rome Statute was the appropriate working definition. The invasions formed part of widespread and systematic attacks on civilian farmers and farm workers. They were deliberate regime policy directed at suppressing perceived political opposition, dispossessing farmers, and benefiting regime supporters.

3. The acts fell within Article 7.1(k). Their intended and actual effect was to inflict great suffering and serious physical or mental injury by violent beatings, burning homes, looting property and driving people from their homes and work. They were inhumane acts of a similar character to persecutory acts under Article 7.1(h). The Tribunal rejected an artificial or narrow compartmentalisation of the conduct.

4. Individual responsibility may arise from personal participation, including joint-enterprise participation, or from a substantial contribution made with the necessary knowledge and intent. A joint-enterprise participant need not additionally prove that their own contribution was substantial. The exclusion clause may not extend to conduct properly characterised as trivial or insubstantial, but mere passivity is insufficient in any event.

5. Intent, rather than an asserted personal motive, was the relevant mental element. The appellant was a voluntary, though reluctant, active participant in beatings intended to drive workers permanently from the farms. She was not merely present and had beaten a woman severely to demonstrate loyalty. Her conduct was sufficient on a joint-enterprise basis and, if required, constituted a substantial contribution to the crime.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, dismissed the appellant’s appeal and upheld exclusion under Article 1F(a) of the Refugee Convention: [2010] UKUT 327 (IAC).
• Immigration Judge: Allowed the human-rights appeal on Article 3 grounds, but dismissed the asylum appeal on the basis of exclusion under Article 1F. The decision was reconsidered after an error of law was identified on the Article 7.1(k) issue.