New Judgment: R (JS (Sri Lanka)) v Secretary of State for the Home Department  UKSC 15
17 Wednesday Mar 2010
On appeal from:  EWCA Civ 364.
Concerned the application for asylum by a former member of the Liberation Tigers of Tamil Eelam. The Court unanimously dismissed the Secretary of State’s appeal. It could not be said of the LTTE that as an organisation was “predominantly terrorist in character” and so the Secretary of State had acted on a wrongful presumption that the respondent was guilty of personal and knowing participation in war crimes. Gurung  UKIAT 04870 (starred) should not be afforded the same standing as it had previously enjoyed – it was unhelpful to attempt to carve out from amongst organisations engaging in terrorism a sub-category of those “whose aims, methods and activities are predominantly terrorist in character”, and to suggest membership gives rise to a presumption of criminal complicity. It was preferable to focus on the determining factors in any case, namely the nature of the organisation, whether the organisation was proscribed (and by whom), how the asylum-seeker was recruited, length of time in the organisation, his position, rank and influence, his own knowledge of and involvement in war crimes. The second major criticism of Gurung was its introduction of the idea of a “continuum” in relation to the types of organisations and their political aims, for war crimes cases.
The Court also considered the true interpretation of Article 1F(a) of the Refugee Convention, and the extent to which complicity in the commission of war crimes and crimes against humanity amount to a basis for the exclusion of an individual from the application of the Refugee Convention.