There has been a rush of cases in recent weeks on the subject of the Refugee Convention exclusion clauses. The exclusion clauses basically exclude some people from refugee status. In reality, human rights law has evolved to prevent removal if there is a well founded fear in such cases, but there are other benefits to refugee status for which make it worth fighting.

Shivani Jegarajah, a fellow tenant at Renaissance Chambers and a brilliant advocate, has been prominent in the Court of Appeal of late, and two of the big decisions on the exclusion clauses are ones in which she acted. By the by, she also has another big Sri Lankan Court of Appeal judgment pending after a successful hearing last week. More to follow once the judgment is available.

The first case is KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292. The Appellant had been a member of and fought for the LTTE but had then fallen foul of the organisation and fled to the UK. He had not been involved with terrorist activities or attacks on civilians. The Asylum and Immigration Tribunal decided that as an active member of an organisation that carried out acts contrary to the purpose and principles of the United Nations, he was excluded from refugee status.

But, of course, one man’s terrorist is another man’s freedom fighter. Lord Justice Stanley Burnton notes that the LTTE is not just a terrorist organisation, although it certainly has carried out terrorist attacks. An active member of an organisation that only carries out terrorist activities will probably be excluded, he finds, but in cases where the organisation engages in a conventional military struggle and other activities, a more careful examination of the personal guilt of that person is required.

The second case is R (on the application of JS (Sri Lanka)) v SSHD [2009] EWCA Civ 364. The claimant had again been an active member and combatant with the LTTE and became second in command of their Intelligence Division’s combat unit. Lord Justice Toulson explores the principles of criminal liability and complicity in international criminal instruments and concludes that the tribunal has been far too readily excluding people from refugee status. He specifically disapproves the earlier ‘starred’ decision in Gurung [2002] UKIAT 04870, by Dr Hugo Storey. Specifically, he finds that acquiescence is insufficient and he finds that the continuum approach in Gurung is wrong as it is simplistic and distracts from the critical question of ‘whether the evidence provides serious reasons for considering the applicant to have committed the actus reus of an international crime with the requisite mens rea’.

Both cases, and another recent case on the PKK in Turkey, MH (Syria) v SSHD [2009] EWCA Civ 226, suggest the Home Office and the tribunal have been following too expansive an approach to the exclusion clauses.