R (JS (Sri Lanka)) v Home Secretary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Scott Baker,Lord Justice Waller,Vice President of the Court of Appeal Civil Division |
| Judgment Date | 17 March 2010 |
| Neutral Citation | [2009] EWCA Civ 364 |
| Docket Number | Case No: C4/2008/1229 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2010 |
[2009] EWCA Civ 364
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
IN THE MATTER OF A JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of the Court of Appeal Civil Division
Lord Justice Scott Baker and
Lord Justice Toulson
Case No: C4/2008/1229
Shivani Jegarajah (instructed by Messrs K Ravi) for the Claimant
Jasbir Dhillon (instructed by Treasury Solicitor) for the Defendant
Hearing date: 25 February 2009
Introduction
The central issue in this case concerns the proper interpretation and application of article 1F(a) of the Refugee Convention. This provides:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”
The case comes on appeal from a judgment of Blair J dismissing the claimant's application for permission to apply for judicial review of a decision of the defendant dated 14 September 2007. Leave to appeal was given by Tuckey LJ. Subsequently a direction was given by Laws LJ that Tuckey LJ's order should stand as a grant of permission to seek judicial review and that the substantive application should proceed in this Court.
Paragraph 36 of the decision letter stated:
“It is…considered that you have been complicit in war crimes and crimes against humanity. Accordingly, pursuant to article 1F(a) it is considered that you are excluded from the protection of the Refugee Convention and that you are also excluded from the protection of Humanitarian Protection.”
The claimant challenges the basis on which the defendant arrived at that conclusion.
The facts
The claimant is a citizen of Sri Lanka and is Tamil.
He arrived at Heathrow Airport from Sri Lanka on 7 February 2007, travelling on a false passport, and claimed asylum 2 days later. He had a screening interview on 9 February 2007 and a substantive asylum interview on 19 February 2007. For the purposes of his judicial review application he made a witness statement dated 16 June 2008.
His claim for asylum was based on his fear that if returned he would face mistreatment due to his race and membership of the Liberation Tigers of Tamil Eelam (“LTTE”). He also claimed humanitarian protection based on his fear that, if returned, he would face a real risk of unlawful killing and torture or inhuman or degrading treatment or punishment.
The defendant accepted the credibility of the claimant's description of his involvement with the LTTE.
He joined the LTTE at the age of 10. He was trained in the use of small weapons and attended classes on the history of the LTTE. He was then sent to a military school in Jaffna.
On 28 December 1993 the claimant joined the Intelligence Division of the LTTE. He received lessons in intelligence and further military training.
Between 1997 and 2000 he took part in various military operations against the Sri Lankan army. In March 2000 he was fighting as a platoon leader in charge of 45 soldiers trying to protect the LTTE's supply lines to the coast when he was injured. He required medical treatment for 6 months. He reached his 18 th birthday in September 2000.
After his recuperation he was moved to a mobile unit responsible for supplying arms by foot from Vanni to Vavuniya. He continued doing this job until April 2002.
In February 2002 a ceasefire was agreed between the LTTE and the Sri Lankan government.
The leader of the Intelligence Division was Pottu Amman. At the end of April 2002 the claimant went with him to Batticaloa as one of his chief security guards. In July 2002 he returned to the mobile unit in Vanni. At this stage he was able to travel freely because of the ceasefire and visited his family, whilst still based with the mobile unit in Vanni. In September 2002 the LTTE was de-proscribed by the Sri Lankan government and peace talks began between them.
From 2004 to September 2006 he served as second in command of the Intelligence Division's combat unit. During this period training classes were conducted in order to prevent a change in the attitude of fighters during the period of peace.
In October 2006 he was sent to Colombo where he was told to wait for further instructions. He stayed with a family to whom he paid rent, but the family had no idea of his LTTE involvement. While he was there one of the members of the family had a birthday and various photographs were taken. To avoid arousing suspicion, he allowed himself to be photographed with the family.
In December 2006 he moved to the home of a work colleague in Mount Lavinia. In January 2007 there was a festival known as Thai Pongal. The claimant rang the family he had previously been staying with to give them his best wishes for the festival. They told him that members of the Sri Lankan government's Intelligence Division had searched their home, made enquiries about him and taken photographs of him at the birthday party. Two days later the officers had returned and informed the family that the claimant was a member of the LTTE. They also knew his LTTE name. At this point the claimant spoke to his father and arrangements were made for him to leave Sri Lanka.
The Defendant's decision letter
After summarising in some detail the claimant's account of his involvement with the LTTE, the decision letter cited various extracts from independent reports regarding the LTTE's activities in recent years. These included:
“The US State Department Report 2006 (USSD), Sri Lanka, released on 6 March 2007 noted that “The LTTE routinely used excessive force in the war, including attacks targeting civilians. Since the peace process began in 2001, the LTTE has engaged in targeted killings, kidnapping, high-jackings of truck shipments and forcible recruitment, including of children.”
“The USSD 2006 reported that “During the year the LTTE continued to detain civilians, often holding them for ransom…”
“As noted in the Amnesty Intentional report “Sri Lanka – A climate of fear in the East”, published on 3 February 2006: “Amnesty International has received regular reports of abductions of adults by the LTTE following the 2004 split. Most of those abducted have reportedly been Tamil civilians whom the LTTE suspects of working against it or whom it wishes to interrogate…”
“The USSD 2006 noted that the LTTE engaged in torture.”
“As noted in the International Crisis Group document “Sri Lanka's Human Rights Crisis Asia Report No 135” 14 June 2007: “The LTTE has from its inception used assassination of its Tamil opponents as a way of suppressing rival nationalist movements. It also has a long history of assassinations and attempted assassinations against political and military leaders…”
The decision letter continued:
“31. In the light of the above country objective evidence it is considered that the LTTE and the intelligence wing of the LTTE have, over an extended period of time, including between 2000 and 2006 when you were both an adult and an active member of the LTTE, been responsible for a wide range [of] war crimes and crimes against humanity.
32. From the evidence provided by you in your claim it is considered that you have shown that you were a long-term voluntary member of the LTTE who served in the intelligence wing of the LTTE in a variety of roles. The fact that you were appointed to be the bodyguard for Pottu Amman, the head of the intelligence wing, provides evidence of how highly trusted you were within the LTTE.
33. It is noted that although you joined the LTTE in 1993 at the age of 10 you nevertheless continued operations with the LTTE from your 18 th birthday in September 2000 until you left Sri Lanka in February 2007. It is considered that if you were acting against your will as a member of the LTTE you would have had opportunities to leave the organisation during this latter 6 year period.
34. However, it is considered that you continued to operate within the LTTE and even gained promotions. This shows that you were a voluntary member of the LTTE. In this regard the case of Gurung [2002] UKIAT 04870 (starred) has been considered in which it was determined that voluntary membership of an extremist group could be presumed to amount to personal and knowing participation, or at least acquiescence, amounting to complicity in the crimes in question.
35. Accordingly, it is concluded that your own evidence shows voluntary membership and command responsibility within an organisation that has been responsible for widespread and systematic war crimes and crimes against humanity. From the evidence you have provided it is considered that there are serious reasons for considering that you were aware of and fully understood the methods employed by the LTTE.”
This reasoning provided the basis for the conclusion in paragraph 36 (set out in para 2 above) that the claimant was considered to have been complicit in war crimes and crimes against humanity, and that he was therefore ineligible for protection under the Refugee Convention or for humanitarian protection.
The judgment on the judicial review permission application
Blair J recorded that Ms Jegarajah, who represented the claimant both before him and before this court, essentially advanced a twofold argument. First, it was not enough to say that he was a member of the...
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