J appealed against the dismissal of his application for permission to apply for judicial review of the Secretary of State’s decision that he was ineligible for protection under the Convention relating to the Status of Refugees 1951 (United Nations). J was a Tamil and a citizen of Sri Lanka who had claimed asylum in the United Kingdom. He was a long-term voluntary member of the Liberation Tigers of Tamil Eelam (LTTE), having served in the intelligence wing.

J claimed that, if returned to Sri Lanka, he would face mistreatment because of his race and his membership of the LTTE. The Secretary of State found that the LTTE was responsible for war crimes and crimes against humanity. She found that J had been a highly-trusted member of that organisation and therefore had been complicit in its crimes. She thus considered him ineligible for humanitarian protection and protection under the Convention. The issue to be determined was whether her reasoning was sound.

J’s appeal was allowed. The Court of Appeal considered that the starting point for the decision-maker was the Rome Statute of the International Criminal Court. The Secretary of State had to identify the type of crime, as defined in articles 7 and 8, and then consider whether there were serious reasons for regarding the applicant as guilty of such a crime. In order for him to have committed the crime on the basis of joint enterprise liability, there had to be a common design amounting to or involving the commission of a crime provided for in the statute. The applicant must have participated in the furtherance of the joint criminal purpose making a significant contribution to the commission of the crime, and that participation had to have been with the intention of furthering one of the crimes provided for in the statute – Prosecutor v Tadic (ICTY) was considered.

Guidance given by the Immigration Appeal Tribunal in Gurung v Secretary of State for the Home Department [2003] Imm. A.R. 115, for determining whether there were serious reasons for considering a person guilty of such a crime was disapproved, since the Tribunal neither examined nor explored the principles of liability set out in the Rome Statute of the International Criminal Court art.25, the Statute of the International Criminal Tribunal for the former Yugoslavia art.7(1) and the decision in Tadic. Moreover, its approach to liability was potentially wider than that taken in those statutes and the cases under those statutes. It was clear that mere membership of an organisation committed to the use of violence to achieve its political goals was not enough to make a person guilty of an international crime. The Tribunal in Gurung had said that if the organisation was one whose aims, methods and activities were predominantly terrorist, very little more would be necessary; but it did not identify what more was necessary. The authorities showed that it could not be participation in activities that did not involve or promote the commission of international crimes.

While it was the purpose of some members of the LTTE to commit international crimes in pursuit of their organisation’s political ends, the Secretary of State had wrongly presumed that J, as a member of the LTTE, was guilty of personal participation in those crimes. She should have instead considered 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 the crimes, and that he had done so with the intention of furthering the perpetration of them. Although his position in the organisation showed that he was trusted to perform his role, neither a significant contribution nor an intention to further the purpose of those members of the LTTE was shown.