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New Supreme Court judgement: exclusion clauses


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Judgment is out in JS (Sri Lanka), an appeal to the Supreme Court from KJ (Sri Lanka) in the Court of Appeal. Judgment here, summary here. The Secretary of State’s appeal was dismissed and the Court of Appeal judgment largely upheld, other than in respect of too tightly defining liability for exclusion under Article 1F of the Refugee Convention. Gurung is held to be unhelpful and simplistic in key respects, encouraging over-use of the exclusion clauses.

This passage provides some useful pointers:

It could not be said of the LTTE – nor even, on the available evidence, of its Intelligence Division – that as an organisation it was (it seems inappropriate in the light of recent events in Sri Lanka to continue speaking of the LTTE in the present tense) “predominantly terrorist in character” (Gurung para 105) or “an extremist international terrorist group” (para 18 of the UNHCR’s Perspective, quoted in the same para 105). There was accordingly no question of presuming (consistently with Gurung) that the respondent’s voluntary membership of this organisation “amount[ed] to personal and knowing participation, or at least acquiescence, amounting to complicity in the crimes in question” – as para 34 of the decision letter stated. Nor was the respondent’s “command responsibility” within the organisation a basis for regarding him as responsible for war crimes. As Toulson LJ pointed out (para 123 of his judgment), the respondent’s command was of a combat unit and there was never any suggestion here of article 28 liability. Nor, of course, as Stanley Burnton J noted in KJ (Sri Lanka), is military action against government forces to be regarded as a war crime.

More to follow if/when I have time. Well done Shivani and the rest of the successful team.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


2 Responses

  1. Despite having our appeal dismissed, we are fairly well pleased with this judgment.

    The individual case was not really what concerned us, it was the CofA’s interpretation of the exclusion clause which was troubling.

    They had essentially done away with the well established principle of complicity in international crimes. The Supreme Court have thankfully restored it, albeit not in as broad terms as Gurung.

    I think your lot and our lot can agree that when someone has knowingly and purposefully contributed to terrorism or genocide, then they should be excluded, even if they did not personally detonate the explosives or wield the machete.

  2. What a great judgement this is! This will certainly help a whole lot of asylum seekers and most especially people with ELR who ILR has been refused based on the troubled Article 1f