R (JS (Sri Lanka)) v Secretary of State for the Home Department

The appeal was brought by the Secretary of State for the Home Department against a decision of the Court of Appeal which quashed a decision to refuse asylum to the respondent, a 28 year old Sri Lankan Tamil who had joined the Liberation Tigers of Tamil Eelam (LTTE) at 12 years of age and subsequently held a number of positions within the LTTE’s Intelligence Division. The Secretary of State’s decision to refuse asylum was based solely on the respondent’s membership of the LTTE and his command responsibilities within the organisation, which the Secretary of State found sufficient to establish that the respondent was a war criminal. The Court of Appeal found this reasoning to be flawed, holding that the Secretary of State had failed to properly consider whether the respondent had played a significant role in the LTTE’s commission of war crimes, and whether he had done so with the requisite mens rea. The Court of Appeal further held that the correct approach to determining whether an asylum seeker is disqualified from refugee protection by virtue of article 1F(a) of the Refugee Convention was to consider whether the asylum seeker had made a substantial contribution to the commission of war crimes by the organisation of which he was a member, with knowledge that his acts would facilitate the commission of such crimes. The Court of Appeal’s judgment was affirmed by the Supreme Court, which held that article 1F(a) of the Refugee Convention disqualifies not only those who personally commit war crimes but also those who make a substantial contribution to their commission, with knowledge that their acts will facilitate such crimes. The Supreme Court further held that the Court of Appeal’s judgment had erred by requiring the Secretary of State to establish that the respondent had participated in the commission of specific war crimes by the LTTE. Instead, the correct approach was to focus on the respondent’s actual role in the LTTE and whether he had played a significant part in the commission of war crimes by the organisation, with the requisite knowledge. The appeal was dismissed but the case was remitted to the Secretary of State for redetermination in accordance with the Supreme Court’s judgment.