JS (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: 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.’
Lord Brown recorded that: ‘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.’

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 15, UKSC 2009/0121, [2010] WLR (D) 79, [2010] 2 WLR 766, [2011] 1 AC 184
Bailii, Bailii Summary, SC Summary, SC, WLRD
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
England and Wales
CriticisedIG (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. . .
Appeal fromJS (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 . .
CitedAl-Sirri v Secretary of State for the Home Department and Another CA 18-Mar-2009
The applicant appealed against rejection of his asylum claim on the basis of his alleged involvement in acts of terrorism. He had been set to face trial but the charges were dropped for insufficient evidence.
Held: Sedley LJ considered the . .
CitedKJ (Sri Lanka) v Secretary of State for the Home Department CA 2-Apr-2009
The asylum claimant was a Tamil whose surveying and reconnaissance work in support of LTTE military operations enabled that group more accurately to target the Sri Lankan forces. The appellant was never involved in any conflict causing injury or . .

Cited by:
CitedAl-Sirri v Secretary of State for The Home Department SC 21-Nov-2012
The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .
CitedVB and Others v Westminster Magistrates SC 5-Nov-2014
Extraditions to follow normal open justice rules
Application was made by Rwanda for the extradition of four individuals to face crimes said to have been committed during their civil war. Witnesses were prepared to give evidence but only in private and not being seen by the representatives of . .

Lists of cited by and citing cases may be incomplete.

Immigration, International

Updated: 01 November 2021; Ref: scu.403312