R v Secretary of State for the Home Department (LTTE Refugee case)


The respondent was 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 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. For about two years 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. In February 2007 he arrived in the UK and applied for asylum.

The respondent’s application (and a subsidiary application for humanitarian protection based on the fear of mistreatment if returned) was refused in September 2007 solely by reference to article 1F(a) of the Refugee Convention.

 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.

But the Court of Appeal quashed the appellant’s decision [2009] EWCA Civ 364; [2010] 2 WLR 17.

It reasoned that in 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.

The Court of Appeal concluded that the Secretary of State failed to address few 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 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. 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.

 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)). The Suprerme Court in  the present appeal had to determine the true interpretation and application of this disqualifying provision.

Who are to be regarded as having committed such a crime 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?

The Supreme Court referred to the Court of Appeal’s judgment in KJ (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 292, a case concerning a Tamil whose surveying and reconnaissance work in support of LTTE military operations  enabled those more accurately to target the Sri Lankan forces. Although the appellant was never involved in any conflict causing injury or death to civilians, the AIT nevertheless held him disqualified from refugee protection by reference to article 1F(c) – it was common ground that “acts contrary to the purposes and principles of the United Nations” included acts of terrorism such as the deliberate killing of civilians – holding “the appellant must have known the type of organisation he was joining, its purpose and the extent to which the organization was prepared to go to meet its aims.” Stanley Burnton LJ, allowing the appeal held that the LTTE, during the period when the appellant was a member, pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the Government of Sri Lanka. The application of article 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organization a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations.

Coming to the issues of the present case:

Should the Secretary of State’s decision be quashed?

The Court held that the Secretary of State’s reasoning in the decision letter was insupportable. It could not be said of the LTTE – nor even, on the available evidence, of its Intelligence Division – that as an organisation it was predominantly terrorist in character or an extremist international terrorist group. There was accordingly no question of presuming that the respondent’s voluntary membership of this organisation amounted to personal and knowing participation, or at least acquiescence, amounting to complicity in the crimes in question. Nor was the respondent’s command responsibility within the organisation a basis for regarding him as responsible for war crimes.

Regarding the correct approach to be followed for  article 1F, it held that though article 1F disqualifies not merely those who personally commit war crimes but also those who instigate or otherwise participate in the commission of crimes. But Article 12(3) does not enlarge the application of article 1F; it merely gives expression to what is already well understood in international law. The Court stated that an accused can be disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.

Thus the Court dismissed the appeal and varied the order below to provide that in re-determining the respondent’s asylum application, the Secretary of State should direct himself in accordance with the Court’s judgments, not those of the Court of Appeal.