Issue 175 - 23rd March 2010

Tuesday 23 March 2010

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NEWS

The Home Office have announced new changes in the immigration rules to come into effect on 6th April 2010. Changes to the immigration rules include changes to Tier I and Tier 2 rules and to rules relating to asylum seekers which will include changes to prevent asylum seekers from humanitarian protection if there are serious reasons for considering that they have engaged in undesirable behaviour. See https://www.bia.homeoffice.gov.uk

A 69 page report "fast tracked unfairness: Detention and Denial of women asylum seekers in UK" documents how the UK asylum system is failing women. See http://www.hrw.org/node/88671

CASE LAW

In JS (Sri Lanka), R on the application of v Secretary of State for the Home Department [2010] UKSC 15 the Supreme Court set out the correct approach to Article 1F(a) of the 1951 Convention. The main issues which were considered was the correct interpretation of 1(F)(A) of 1951 Convention and what beyond mere membership of an organisation was enough for the disqualifying provision to apply ii) the correctness of approach by the Tribunal in Gurung.v Secretary of State for the Home Department [2003] Imm AR 115. Article 1F(a) disqualifies those from refugee protection if there are serious reasons for considering that he has committed a crime against peace, a war crime or crime against humanity. Article 1F(a) disqualifies those who have personally committed war crimes but also those who have participated in crimes ie those who have performed advance acts in support of terrorist crimes including .those who make provide physical, logistical support including support that controls funds that enable modern terrorist groups to operate may be disqualified. This is consistent with Article 12(3) of the Qualification Directive.

It was common ground that i) the true interpretation of Article 1F (a) was to be found in international rather than domestic law ii) that because of the serious consequences of the exclusion the article must be interpreted restrictively and used cautiously and iii) that more than mere membership of an organisation is necessary to bring a person within the article's disqualifying provision [paragraph 2]. What the Court decided is assuming that there will be people 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 regarded as a war criminal

The respondent is a Sri Lankan Tamil who joined the LTTE as a child aged 10 and held various roles and was as an adult second in command of the combat unit of the intelligence division of LTTE.. The SSHD took the view that because the respondent was a voluntary member of a terrorist organisation that voluntary membership presumed active knowledge and participation of crimes. The respondent was excluded from refugee protection. [paragraphs 4-5]

The Tribunal in Gurung focused on the nature of the organisation and found that on the one end of the continuum there could be support for an organisation that had developed political aims and embraced a democratic mode of government protecting human rights but for a short time created an armed struggle in response to atrocities committed by a dictatorial government. An immigration judge should be extremely slow to conclude that mere membership raises any real issue under Article 1Funless the person has played a leading role in crimes undertaken by the armed wing

On the other end of this continuum if an organisation has little or no political agenda and focuses only on terrorism and terrorist acts for the pursuance of authoritarian power without human rights. Any individual who knowingly joins such an organisation will have difficulty in showing that she or he is not complicit in the acts of such an organisation. The Tribunal found that if an individual was transporting explosives for LTTE combatants in circumstances where he must have known that there were to be used for that may well be a serious Article 1F issue.

The Supreme Court found that the Tribunal was in error in Gurung because the LTTE was not "predominantly terrorist in character" [paragraph 27]. The Supreme Court also found that there was no question of presuming as in Gurung did that the respondent's voluntary membership of the LTTE amounted to complicity of the crimes in question nor was his "command responsibility" within the organisation a basis for regarding him responsible for war crimes [paragraph 27]. Military action against government forces is not a war crime and does not incur any liability under Article 28 of the Rome Statute of the International Criminal Court. The Supreme Court disapproving of Gurung held that there can be no criminal complicity presumed from voluntary membership of an organisation which was or has become one whose aims, methods and activities are predominantly terrorist in character "very little more will be necessary". The Supreme Court identified this as dangerous doctrine because it led SSHD to believe that voluntary membership of such a group gives rise to a presumption of personal and knowing participation and diverts attention from a close examination of the facts of focusing on the role that an individual has played and whether they have participated in relevant activity and why such a person should be excluded.

The relevant factors for consideration i) the nature and size of the organisation and particularly the part of it with which the asylum seeker was most directly concerned ii) whether and if so by whom the organisation was proscribed iii) how the asylum seeker came to be recruited iv) the length of time he remained in the organisation and what if any opportunities he had to leave it v) his position, rank and standing and influence in the organisation vi) his knowledge of the organisations war crime activities and vii) his own personal involvement and role in the organisation including whatever contribution he made towards the commission of war crimes.The Immigration Appeal Tribunal had also been wrong in Gurung to introduce the idea of a "continuum" for war crime cases. Whether an organisation is promoting democracy or authoritarian government is not relevant to the issue of whether someone is guilty of war crimes. The reality was that there were too many variable factors in a case to make it helpful to try to place it at some point along a continuum, The nature of the organisation itself is only one of the relevant factors and it was best to avoid looking for a presumption of individual liability. [29-32] Gurung disapproved. The appeal was dismissed and The secretary of state was directed to redetermine S's asylum application, directing himself in accordance with the Supreme Court's Judgment [paragraph 40]. See http://www.bailii.org/uk/cases/UKSC/2010/15.html

R (on the application of O) v Secretary of State for the Home Department [2010] QBD (Admin) (Dobbs J) 15.3.2010 (unreported)

The claimant was a failed asylum seeker who applied for judicial review to challenge the lawfulness of his continued detention by the SSHD pending his removal to Guinea. O was in administrative detention for 30 months. The Court held that it was appropriate to release a failed asylum seeker with conditions as the grounds relied upon by SSHD to justify his detention pending removal were unsupported by evidence and some assertions relied upon were inaccurate. In particular, the SSHD had indicated that O had never reported to the police station when there was evidence that he had reported regularly save for two occasions. The SSHD's assertion that he was at high risk of reoffending was not supported by the pre sentence report which stated that he was at low risk of reoffending and posed a medium not high risk to the public. The Court decided that the period of unlawful detention would be determined at a later hearing.

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