JS (Sri Lanka), Regina (on the Application of) v Secretary Of State for the Home Department: CA 30 Apr 2009

Joint Enterprise Liability – War Crimes accusation

The applicant appealed against an order for his removal. He was accused of complicity in war crimes.
Held: To find an asylum seeker to be subject to the Rome statute so as to exclude him from protection it had to be shown that there had been a common intention to carry out acts which would amount to war crimes, and that the person had participated in the furtherance of that common intention. The Home Secretary had failed to address the necessary issues, and the decision must be quashed.
Toulson LJ said: ‘[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.’ and
‘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.’

Lord Justice Waller, Lord Justice Scott Baker and Lord Justice Toulson
[2009] EWCA Civ 364, Times 11-May-2009, [2009] 3 All ER 588, [2010] 2 WLR 17
England and Wales
CitedIG (Indra Gurung) (Exclusion, Risk, Maoists) Nepal CG (Starred) IAT 14-Oct-2002
The Tribunal gave guidance to adjudicators on the proper approach to the Refugee Convention’s Exclusion Clauses at Art 1F. The claimant had been a film star but was said to have become involved in a Maoist movement said to be involved in terrorism. . .

Cited by:
Appeal fromJS (Sri Lanka), Regina (on The Application of) v Secretary of State for The Home Department SC 17-Mar-2010
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: . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 11 November 2021; Ref: scu.341791