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

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD BROWN,LORD HOPE,LORD RODGER,LORD WALKER,LORD KERR
Judgment Date17 March 2010
Neutral Citation[2010] UKSC 15
Date17 March 2010

[2010] UKSC 15

THE SUPREME COURT

Hilary Term

On appeal from: [2009] EWCA Civ 364

before

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lord Brown

Lord Kerr

R (on the application of JS)
(Sri Lanka) (Respondent)
and
Secretary of State for the Home Department
(Appellant)

Appellant

Tim Eicke

Jasbir Dhillon

(Instructed by Treasury Solicitors)

Respondent

Rabinder Singh QC

Shivani Jegarajah

Michelle Butler

(Instructed by K Ravi Solicitors)

LORD BROWN
1

The Refugee Convention was drafted for a world scarred by long years of war crimes and other like atrocities. There remain, alas, all too many countries where such crimes continue. Sometimes those committing them flee abroad and claim asylum. It is not intended that the Convention will help them. However clearly in need of protection from persecution an asylum seeker may be, he is not to be recognised as a refugee where "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". So states article 1F(a) of the Convention (and, for good measure, article 12(2)(a) of the Qualification Directive (2004/83/EC) – this being implemented into domestic law by Regulations 2 and 7(1) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525)). It is the Court's central task on the present appeal to determine the true interpretation and application of this disqualifying provision. Who are to be regarded as having committed such a crime ("war criminals" as I shall generally refer to them) within the meaning of article 1F(a)? More particularly, assuming that there are those within an organisation who clearly are committing war crimes, what more than membership of such an organisation must be established before an individual is himself personally to be regarded as a war criminal?

2

It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article's disqualifying provisions. The question is, I repeat, what more?

3

As need hardly be stated, only if the decision-maker in respect of a particular application for asylum correctly identifies and answers this question will he be in a position to decide, in all but the clearest cases, whether "there are serious reasons for considering" the asylum-seeker to be disqualified as a war criminal under article 1F(a).

4

The particular context within which the question arises on the present appeal can be comparatively briefly stated. A substantially fuller description of the facts can be found in the judgment below. The respondent is a 28 year old Sri Lankan Tamil. In 1992, at the age of 10, he became a member of the Liberation Tigers of Tamil Eelam ("LTTE"), the following year joining the LTTE's Intelligence Division. At 16 he became team leader of a nine-man combat unit, at 17 the leader of a 45-man platoon, on each occasion engaging in military operations against the Sri Lankan army, and on each being wounded. At 18 he was appointed to lead a mobile unit responsible for transporting military equipment and other members of the Intelligence Division through jungles to a point where armed members of the Division could be sent in plain clothes to Colombo. He continued to do this for some three years from September 2000 until early 2004 except for some two and a half months (from late April to early July 2002) when he was appointed one of the chief security guards to Pottu Amman, the Intelligence Division's leader, whom he accompanied as a trusted aide on visits to the LTTE District Leader, Colonel Karuna, and other prominent LTTE members. From early 2004 to September 2006 he served as second in command of the combat unit of the Intelligence Division. In October 2006 he was sent incognito (in plain clothes and under an assumed name) to Colombo to await further instructions. In December 2006 he learned that his presence in Colombo had been discovered and arrangements were made for him to leave the country. On 7 February 2007 he arrived in the UK and two days later applied for asylum.

5

The respondent's application (and a subsidiary application for humanitarian protection based on the fear of mistreatment if returned) was refused on 14 September 2007 solely by reference to article 1F(a). The core of the appellant Secretary of State's reasoning appears in paragraphs 34 and 35 of the decision letter:

"34 … [I]t is considered that you continued [during the six-year period from the respondent's 18 th birthday until he left the intelligence wing of the LTTE] 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 systemic 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."

6

By virtue of section 83 of the Nationality, Immigration and Asylum Act 2002, the appellant's decision was unappealable: the respondent had been granted only six months' leave to enter. The respondent therefore sought judicial review. Leave was eventually granted and an order made for the substantive challenge to be heard by the Court of Appeal. On 30 April 2009, following a single day's hearing on 25 February, the Court of Appeal quashed the appellant's decision: [2009] EWCA Civ 364; [2010] 2 WLR 17. Toulson LJ gave the sole reasoned judgment with which Waller LJ, Vice President of the Court of Appeal Civil Division, and Scott Baker LJ simply agreed.

7

In his lengthy and (right or wrong) impressive judgment, Toulson LJ disapproved certain aspects of the guidance given in the starred tribunal case of Gurung (on which the Secretary of State had relied), criticized parts of the UNHCR's approach, and reached the following main conclusions:

Para 119:

"…[I]n order for there to be joint enterprise liability:

(1) there has to have been a common design which amounted to or involved the commission of a crime provided for in the statute;

(2) the defendant must have participated in the furtherance of the joint criminal purpose in a way that made a significant contribution to the crime's commission; and

(3) that participation must have been with the intention of furthering the perpetration of one of the crimes provided for in the statute."

Para 123:

"… I conclude that the Secretary of State failed to address the critical questions. Given that it was the design of some members of the LTTE to carry out international crimes in pursuit of the organisation's political ends, [the Secretary of State] acted on a wrongful presumption in para 34 of the decision letter that the claimant, as a member of the LTTE, was therefore guilty of personal and knowing participation in such crimes, instead of considering whether there was evidence affording serious reason for considering that he was party to that design, that he had participated in a way that made a significant contribution to the commission of such crimes and that he had done so with the intention of furthering the perpetration of such crimes. The fact that he was a bodyguard of the head of the intelligence wing … shows that he was trusted to perform that role, but not that he made a significant contribution to the commission of international crimes or that he acted as that person's bodyguard with the intention of furthering the perpetration of international crimes. Reference was made by the Secretary of State … to his command responsibilities in a combat unit, but there was no evidence of international crimes committed by the men under his command for which he might incur liability under article 28. His own engagement in non-criminal military activity was not of itself a reason for suspecting him of being guilty of international crimes."

8

That reference to article 28 is to the Rome Statute of the International Criminal Court ("the ICC Statute") which Toulson LJ (at para 115) had said, correctly in my view, should now be the starting point for considering whether an applicant is disqualified from asylum by virtue of article 1F(a) and upon which Toulson LJ had already drawn in stating his view (at para 119, set out above) of the constituents of joint enterprise liability.

9

It is convenient to go at once to the ICC Statute, ratified as it now is by more than a hundred States and standing as now surely it does as the most comprehensive and authoritative statement of international thinking on the principles that govern liability for the most serious international crimes (which alone could justify the denial of asylum to those otherwise in need of it).

10

Although (by article 5) the ICC Statute confers on the Court (established by article 1) jurisdiction also with respect to "the crime of genocide" and (once...

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