The Supreme Court handed down judgment in the case of R (JS) (Sri Lanka) v Secretary of State for the Home Department [2010] UKSC 15 on the 17th March 2010. The principal point at issue concerned the requirements necessary, in addition to membership of an organisation, in order for an individual to be disqualified from recognition under the Refugee Convention.

The relevant article, article 1F(a) prohibits recognition as a refugee where amongst other crimes, there are “serious reasons” for believing that the individual has committed a war crime. This was further defined in the Qualification Directive (2004/83/EC) and in UK domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525).

The appeal concerned a twenty eight year old Sri Lankan Tamil who had operated in and been promoted within the Liberation Tigers of Tamil Elam (LTTE), and who arriving in the UK applied for asylum. Rejecting the application, the Secretary of State relied on article 1F(a) and the case of Gurung v Secretary of State for the Home Department [2002] UKIAT 04870. Disapproving elements of the case of Gurung, the Court of Appeal in a judicial review hearing quashed the decision.

The Supreme Court on appeal by the Secretary of State considered that the Court of Appeal had been correct in quashing the decision, as the reasons given by the appellant in its decision letter were insupportable.

Disapproving the guidance in Gurung of the existence of a subset of organisations, membership of which leads to a presumption of criminal complicity, the court instead argued in favour of focusing primarily on the actions of the individual and set out relevant determining factors.

Outlining the correct approach to article 1F, the court noted that the Qualification Directive does not seek to expand the article. Further, the ways of attracting criminal liability are wider than the bases of joint criminal enterprise present in domestic law. The court criticised the Court of Appeal for its apparent confinement of article 1F to these bases. Determining the requisite mens rea, the court referred to Article 30 of the ICC Statute and also the definition in the decision of the ICTY in the case of Prosecutor v Tadic 112 ILR 1.

Dismissing the appeal, the appellant was ordered to reconsider the respondent’s application, in accordance with the Supreme Court’s judgments rather than those of the Court of Appeal.