UK - Supreme Court, 17 March 2010, JS (Sri Lanka) v Secretary of State for the Home Department, [2010] UKSC 15

Facts:

The applicant was a member of the LTTE.  The Secretary of State had concluded that there were serious reasons for considering that he had committed war crimes, and refused to grant him asylum, granting 6 months discretionary leave to enter. The applicant applied for Judicial Review of the decision.

The applicant had joined the LTTE, aged 10 and, almost immediately afterwards, joined the Intelligence Division performing multiple roles including being involved in military operations against the Sri Lankan army. After his 18th birthday, he led a unit that transported military equipment through the jungle along with other members of the ‘Intelligence Division’ who would be sent in plain clothes into Colombo. He became a trusted bodyguard of the leader of the ‘Intelligence Division’ before being deployed in plain clothes to Colombo. After he heard that his identity had been uncovered, he fled to the UK and claimed asylum.

Decision & reasoning:

The Supreme Court held that mere membership of the LTTE or its ‘Intelligence Division’ was not sufficient to establish that there were serious reasons for considering that the applicant had committed a war crime. His application for asylum should therefore be reconsidered.

The starting point for interpreting the terms crimes against humanity and war crimes should be Articles 7 and 8 of the Rome Statute of the International Criminal Court.  Articles 25 and 30 of the Rome Statute define the circumstances in which individual criminal responsibility for these crimes is established.

Article 12(3) of the Qualification Directive provides that Article 12(2)(a) (which replicates the terms of Article 1F(a))  "applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein." The Supreme Court approved the German Federal Administrative Court’s interpretation of this provision in BVerwG 10C 48.07. That Court had held that:  “the person seeking protection need not have committed the serious non-political crime himself, but he must be personally responsible for it. This must in general be assumed if a person has committed the crime personally, or made a substantial contribution to its commission, in the knowledge that his or her act or omission would facilitate the criminal conduct... Thus this principle covers not only active terrorists and participants in the criminal sense, but also persons who perform advance acts in support of terrorist activities. . .”

The Supreme Court held that “one needs...to concentrate on the actual role played by the particular persons, taking all material aspects of that role into account so as to decide whether the required degree of participation is established”. The Court identified a non-exhaustive list of relevant factors to consider in making this assessment.  They were:

“(i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned; (ii) whether and, if so, by whom the organisation was proscribed; (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it; (v) his position, rank, standing and influence in the organisation; (vi) his knowledge of the organisation's war crimes activities, and; (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes”

Outcome:

Secretary of State’s appeal was dismissed. The Secretary of State was ordered to reconsider the applicant’s asylum claim.

Observations/comments:

The Supreme Court expressly disapproved two aspects of the guidance given in the case of Gurung.  First, there should not be a presumption that there were serious reasons for considering that those who are members of an organisation “whose aims, methods and activities are predominantly terrorist in character” were complicit in war crimes.  The nature of the organisation that the applicant was a member of was only one factor that had to be considered. Secondly, it was unhelpful to consider that there was a continuum of war crimes, particular with reference to the aims and aspirations of any organisation.  “War crimes are war crimes however benevolent and estimable may be the long-term aims of those concerned. And actions which would not otherwise constitute war crimes do not become so merely because they are taken pursuant to policies abhorrent to western liberal democracies”.

Lord Brown held, obiter, although the burden of proof on the state to show that there were serious reasons for considering that  an applicant should be excluded under Article 1(F)(a), the standard of proof is “lower than that applicable in actual war crimes trials. Lord Brown held that "serious reasons for considering" obviously imports a higher test for exclusion than would, say, an expression like "reasonable grounds for suspecting". "Considering" approximates rather to "believing" than to "suspecting".”  He approved the approach of Sedley LJ in Yasser Al-Sirri v Secretary of State for the Home Department [2009] EWCA Civ 222: "[the phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says."

This decision pre-dated the CJEU’s ruling in Abdulla et al. (C-175/08).

Other sources:

ICTY Statute

UNHCR Guidelines On International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees.

Addressing Security Concerns without Undermining Refugee Protection: UNHCR's Perspective of 29 November 2001