The asylum seeker was accused of complicity in war crimes in Sri Lanka. He had worked as an intelligence officer but his cover had been broken and he fled to the UK. It was said that he was excluded from protection as an asylum seeker.
Held:The Home Secretary’s appeal failed. Article 28 is to the Rome Statute of the International Criminal Court should now be the starting point for considering whether an applicant is disqualified from asylum by virtue of article 1F(a), adopting also the constituents of criminal liability set out by Toulson LJ in the CA. On the facts the Home Secretary’s judgement could not be supported. The organisation was not predominantly terrorist as had been described, but the nature of the organisation itself is only one of the relevant factors in play and it is best to avoid looking for a ‘presumption’ of individual liability, ‘rebuttable’ or not, and ‘Whether the organisation in question is promoting government which would be ‘authoritarian in character’ or is intent on establishing ‘a parliamentary, democratic mode of government’ is quite simply nothing to the point in deciding whether or not somebody is guilty of war crimes. 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.’
The language of the international statute in referring to modes of complicity in war crimes was wider than were similar provisions in domestic criminal codes: ‘article 1F disqualifies those who make ‘a substantial contribution to’ the crime, knowing that their acts or omissions will facilitate it.’
Date: 17-Mar-2010
Judges: Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
Statutes: Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525), Qualification Directive (2004/83/EC) 12(2)(a), Convention relating to the Status of Refugees done at Geneva on 28 July 1951 1F(a), Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the, Rome Statute of the International Criminal Court 28
Links: Bailii, Bailii Summary, SC Summary, SC, WLRD,
References: [2010] UKSC 15, UKSC 2009/0121, [2010] WLR (D) 79, [2010] 2 WLR 766
Cases Cited:
- IG (Indra Gurung) (Exclusion, Risk, Maoists) Nepal CG (Starred), IAT, Criticised, (Bailii, [2002] UKIAT 04870, [2003] INLR 133, [2003] Imm AR 115)
- JS (Sri Lanka), Regina (on the Application of) -v- Secretary Of State for the Home Department, CA, Appeal from, (Bailii, [2009] EWCA Civ 364, Times, [2009] 3 All ER 588, [2010] 2 WLR 17)
- Al-Sirri -v- Secretary of State for the Home Department and Another, CA, Cited, (Bailii, [2009] EWCA Civ 222)
- KJ (Sri Lanka) -v- Secretary of State for the Home Department, CA, Cited, (Bailii, [2009] EWCA Civ 292)
