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  • UPPER TRIBUNAL JUDGE HANSON a finding could be made that the grounds for exclusion laid down in Article and of the Directive applied, it must be possible to attribute to the person concerned a share of the responsibility for the acts committed by the organisation in question while that person was a member. That individual responsibility must be assessed in the light of both objective and subjective criteria. To that end the competent authority must assess the true role played by the person concerned in the perpetration of the acts in question; his position within the organisation; the extent of the knowledge he had, or was deemed to have, of its activities; any pressure to which he was exposed; or other factors likely to have influenced his conduct. The fact that a person had been a member of an organisation which, because of its involvement in terrorist acts, was on the list forming the Annex to Common Position and that that person had actively supported the armed struggle waged by that organisation did not automatically constitute a serious non-political crime or acts contrary to the purposes and principles of the United Nations. The grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who were deemed to be undeserving of the protection which that status entailed and of preventing that status from enabling those who had committed certain serious crimes to escape criminal liability. Accordingly it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. Exclusion from refugee status on one of the grounds laid down in Article or was linked to the seriousness of the acts committed, which must be of such a degree that the person concerned could not legitimately claim the protection attaching to refugee status. It was important to note that the exclusion of a person from refugee status did not imply the adoption of a position on the separate question of whether that person could be deported. In AA complicity Arts and ICC Statute) Iran UKUT the Tribunal held that: In establishing for the purposes of Art of the Refugee Convention that an individual was complicit under Art of the Rome Statute of the International Criminal Court Statute") in crimes against humanity perpetrated by others in an organisation, it was necessary to consider all the circumstances of the appellant's involvement in that organisation in order to determine whether what the appellant did made a significant contribution to the organisation's ability to carry out crimes against humanity: R the application of JS) Lanka) v SSHD UKSC also Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D Imm AR However, in establishing this form of complicity liability under international criminal law it was not necessary to establish that the appellant's acts formed of" a crime against humanity committed by others in the sense that the appellant's acts were of such a character as, in themselves, to fall within one or more of the categories of acts which if committed as part of a widespread or systematic attack directed against any civilian population were capable of amounting to a crime against humanity under Art of the ICC Statute. The starting point is clearly the need to make clear findings regarding the factual matrix and what exactly Mr Salim is found to have done and whether this is sufficient to amount to a war crime or crime against humanity. Judge Lloyd in paragraph of her determination notes that the Home Office accepted Mr Salim's account of his Janjaweed activities and specifically states that she does too. The Secretary of State accepted that the appellant was a paid-up member of the Janjaweed for over three years and notes at paragraph that the evidence indicates he failed to leave the Janjaweed at the earliest opportunity and voluntarily participated in war crimes/crimes against humanity with this group and accordingly there was serious reasons for considering that he had committed war crimes/crimes against humanity both individually and as part of a joint criminal enterprise as a member of the Janjaweed. This is clearly the Secretary of State's position which Judge Lloyd indicated she accepted. In paragraph of her determination she found it was not disputed that the appellant participated in Janjaweed battles with rebels in raids on villages where there were civilians, women and children who were killed and that their villages were destroyed. In paragraph Judge Lloyd accepts that the appellant was in the militia which made many attacks on Darfurian villages between before Upper Tribunal Judge Hanson sitting at Birmingham with a time estimate of three hours. An Arabic interpreter shall be provided by the Tribunal. Signed....................................................... Upper Tribunal Judge HansonDated the May In his original witness statement dated December Mr Salim states that he was born on July and lived in the village of AL Sheikh in Katum, Northern Darfur Region. He claims to have worked as a shepherd and that members of his tribe were mostly engaged in raising livestock. He stated since the war started in Darfur, in his tribe was named as Janjaweed. All members of his tribe had guns and belong to the Janjaweed Arab militia. Mr Salim stated that when the conflict started their tribal leader approached government officials and agreed that members of the tribe would participate in the fighting on condition that the government paid a salary for every individual fighter and provided them with weapons. The government agreed. It is alleged that men older than eighteen were recruited and were told they needed to participate in the war to protect their tribe and their land. They received equipment and an income. Mr Salim claims one of the tribe's representatives came to the place where he was staying with his livestock where there were seventy other shepherds. They were forced to sign on as fighters for the Janjaweed. Mr Salim stated that some objected but were told if they did not fight the Chief would be called whose authority they had to respect. They all agreed to go and receive training. They were taken to a training camp in Northern Darfur and received twenty days training in weapons and physical military training. After twenty days they started to take part in the fighting. Mr Salim stated they used to receive orders to go and attack different places. In paragraph he recalls his first attack on a place he names as Mangory in Western Kutum. He stated he followed the orders of the commander and destroyed the village completely. He claimed he was forced to do that as he was serving in the military and could not object to orders from the authorities. He continued to attack the rebels and villages on a constant basis. At the end of Mr Salim took part in an attack on a village called Alboos in West Kutum, North Darfur. Most of the residents of the village were from the Fur a black African tribe. Thousands of Janjaweed fighters took part in the attack during which the village was completely destroyed and many people killed. Mr Salim claimed he saw many women and older people killed and burned during the attack. At paragraph he stated he still continued in the Janjaweed as he could not object to the government who supported them. He remained involved with the group for more than two years and claimed he could not stop because the orders came directly from the government; although he claimed he was sad and hated to attack innocent people and wanted to run away. In August he decided to flee the country and on the of that month he was with a group of fighters patrolling an area. During the night the group settled for a rest and he told another fighter, a relative, that he was going to escape which he did. He hid in the mountains for two days after which he went to his parents. After telling his parents he needed money he hid again returning to his parent's house only to collect the money, after which he found an agent who helped him to leave the area. He was eventually able to travel to Libya where he was introduced to another agent who helped him enter Italy by boat after which he travelled to France and then onto the United Kingdom. In his oral evidence to the Upper Tribunal Mr Salim claimed that a further statement dated September contains the truth. In this statement, prepared in response to the reasons for refusal letter, Mr Salim claimed that he was forced to participate in the Janjaweed against his will as if he had not it would have a detrimental effect upon his family. He claimed that if he did not fight the government would have killed his family. Mr Salim further claimed he was forced to join and left as soon as he had the opportunity to do so, whist on patrol. He claimed that by escaping in this way his family could not be blamed for what he had done although he claimed they were interrogated about his escape. Mr Salim was asked about the income he earned as a shepherd in relation to which his answers were somewhat vague. He was asked why he was reluctant to join Janjaweed which he stated was because they forced him into joining. He did not want to kill people although he then claimed he did not know before he joined that he was required to kill civilians. Mr Salim claimed he was forced to join by force and that the recruiters visited his village many times before he joined. He claimed it was difficult to escape from them and that they were never given a chance to flee before he was forced to join the Janjaweed. Questions were asked about the income received and his claim at paragraph of his witness statement to receive between
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  • UPPER TRIBUNAL JUDGE HANSON a finding could be made that the grounds for exclusion laid down in Article and of the Directive applied, it must be possible to attribute to the person concerned a share of the responsibility for the acts committed by the organisation in question while that person was a member. That individual responsibility must be assessed in the light of both objective and subjective criteria. To that end the competent authority must assess the true role played by the person concerned in the perpetration of the acts in question; his position within the organisation; the extent of the knowledge he had, or was deemed to have, of its activities; any pressure to which he was exposed; or other factors likely to have influenced his conduct. The fact that a person had been a member of an organisation which, because of its involvement in terrorist acts, was on the list forming the Annex to Common Position and that that person had actively supported the armed struggle waged by that organisation did not automatically constitute a serious non-political crime or acts contrary to the purposes and principles of the United Nations. The grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who were deemed to be undeserving of the protection which that status entailed and of preventing that status from enabling those who had committed certain serious crimes to escape criminal liability. Accordingly it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. Exclusion from refugee status on one of the grounds laid down in Article or was linked to the seriousness of the acts committed, which must be of such a degree that the person concerned could not legitimately claim the protection attaching to refugee status. It was important to note that the exclusion of a person from refugee status did not imply the adoption of a position on the separate question of whether that person could be deported. In AA complicity Arts and ICC Statute) Iran UKUT the Tribunal held that: In establishing for the purposes of Art of the Refugee Convention that an individual was complicit under Art of the Rome Statute of the International Criminal Court Statute") in crimes against humanity perpetrated by others in an organisation, it was necessary to consider all the circumstances of the appellant's involvement in that organisation in order to determine whether what the appellant did made a significant contribution to the organisation's ability to carry out crimes against humanity: R the application of JS) Lanka) v SSHD UKSC also Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D Imm AR However, in establishing this form of complicity liability under international criminal law it was not necessary to establish that the appellant's acts formed of" a crime against humanity committed by others in the sense that the appellant's acts were of such a character as, in themselves, to fall within one or more of the categories of acts which if committed as part of a widespread or systematic attack directed against any civilian population were capable of amounting to a crime against humanity under Art of the ICC Statute. The starting point is clearly the need to make clear findings regarding the factual matrix and what exactly Mr Salim is found to have done and whether this is sufficient to amount to a war crime or crime against humanity. Judge Lloyd in paragraph of her determination notes that the Home Office accepted Mr Salim's account of his Janjaweed activities and specifically states that she does too. The Secretary of State accepted that the appellant was a paid-up member of the Janjaweed for over three years and notes at paragraph that the evidence indicates he failed to leave the Janjaweed at the earliest opportunity and voluntarily participated in war crimes/crimes against humanity with this group and accordingly there was serious reasons for considering that he had committed war crimes/crimes against humanity both individually and as part of a joint criminal enterprise as a member of the Janjaweed. This is clearly the Secretary of State's position which Judge Lloyd indicated she accepted. In paragraph of her determination she found it was not disputed that the appellant participated in Janjaweed battles with rebels in raids on villages where there were civilians, women and children who were killed and that their villages were destroyed. In paragraph Judge Lloyd accepts that the appellant was in the militia which made many attacks on Darfurian villages between before Upper Tribunal Judge Hanson sitting at Birmingham with a time estimate of three hours. An Arabic interpreter shall be provided by the Tribunal. Signed....................................................... Upper Tribunal Judge HansonDated the May In his original witness statement dated December Mr Salim states that he was born on July and lived in the village of AL Sheikh in Katum, Northern Darfur Region. He claims to have worked as a shepherd and that members of his tribe were mostly engaged in raising livestock. He stated since the war started in Darfur, in his tribe was named as Janjaweed. All members of his tribe had guns and belong to the Janjaweed Arab militia. Mr Salim stated that when the conflict started their tribal leader approached government officials and agreed that members of the tribe would participate in the fighting on condition that the government paid a salary for every individual fighter and provided them with weapons. The government agreed. It is alleged that men older than eighteen were recruited and were told they needed to participate in the war to protect their tribe and their land. They received equipment and an income. Mr Salim claims one of the tribe's representatives came to the place where he was staying with his livestock where there were seventy other shepherds. They were forced to sign on as fighters for the Janjaweed. Mr Salim stated that some objected but were told if they did not fight the Chief would be called whose authority they had to respect. They all agreed to go and receive training. They were taken to a training camp in Northern Darfur and received twenty days training in weapons and physical military training. After twenty days they started to take part in the fighting. Mr Salim stated they used to receive orders to go and attack different places. In paragraph he recalls his first attack on a place he names as Mangory in Western Kutum. He stated he followed the orders of the commander and destroyed the village completely. He claimed he was forced to do that as he was serving in the military and could not object to orders from the authorities. He continued to attack the rebels and villages on a constant basis. At the end of Mr Salim took part in an attack on a village called Alboos in West Kutum, North Darfur. Most of the residents of the village were from the Fur a black African tribe. Thousands of Janjaweed fighters took part in the attack during which the village was completely destroyed and many people killed. Mr Salim claimed he saw many women and older people killed and burned during the attack. At paragraph he stated he still continued in the Janjaweed as he could not object to the government who supported them. He remained involved with the group for more than two years and claimed he could not stop because the orders came directly from the government; although he claimed he was sad and hated to attack innocent people and wanted to run away. In August he decided to flee the country and on the of that month he was with a group of fighters patrolling an area. During the night the group settled for a rest and he told another fighter, a relative, that he was going to escape which he did. He hid in the mountains for two days after which he went to his parents. After telling his parents he needed money he hid again returning to his parent's house only to collect the money, after which he found an agent who helped him to leave the area. He was eventually able to travel to Libya where he was introduced to another agent who helped him enter Italy by boat after which he travelled to France and then onto the United Kingdom. In his oral evidence to the Upper Tribunal Mr Salim claimed that a further statement dated September contains the truth. In this statement, prepared in response to the reasons for refusal letter, Mr Salim claimed that he was forced to participate in the Janjaweed against his will as if he had not it would have a detrimental effect upon his family. He claimed that if he did not fight the government would have killed his family. Mr Salim further claimed he was forced to join and left as soon as he had the opportunity to do so, whist on patrol. He claimed that by escaping in this way his family could not be blamed for what he had done although he claimed they were interrogated about his escape. Mr Salim was asked about the income he earned as a shepherd in relation to which his answers were somewhat vague. He was asked why he was reluctant to join Janjaweed which he stated was because they forced him into joining. He did not want to kill people although he then claimed he did not know before he joined that he was required to kill civilians. Mr Salim claimed he was forced to join by force and that the recruiters visited his village many times before he joined. He claimed it was difficult to escape from them and that they were never given a chance to flee before he was forced to join the Janjaweed. Questions were asked about the income received and his claim at paragraph of his witness statement to receive between
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AA094382011 (unreported)

Smart Summary

Factual and Procedural Background

This opinion concerns an appeal against a determination made by First-tier Tribunal Judge Lloyd following a hearing in Birmingham on 12th October 2011, where the appellant's asylum and human rights appeal was allowed. The appellant, a citizen of Sudan, challenged the Secretary of State's decision to remove him on grounds that such removal would breach the Refugee Convention and Articles 2, 3 & 8 of the European Convention on Human Rights (ECHR). The Secretary of State sought permission to appeal, which was granted, on the basis that the Immigration Judge had made errors of law, including failure to resolve conflicts in the evidence and misapplication of precedent.

The appellant was found to have been a member of the Janjaweed militia in Darfur, involved in attacks on villages and civilians. The Secretary of State asserted that the appellant should be excluded from refugee status due to participation in war crimes and crimes against humanity. The original decision was challenged on the grounds of factual contradictions and legal misdirection, particularly regarding the appellant's mens rea (intent) and the defence of duress.

The Upper Tribunal Judge Hanson found that Judge Lloyd had made material errors of law, including contradictory findings and inadequate consideration of duress, and set aside her decision. Directions were given for further evidence and a rehearing was scheduled.

Legal Issues Presented

  1. Whether the First-tier Tribunal Judge erred in law by failing to resolve conflicts within the evidence regarding the appellant's participation in war crimes and crimes against humanity.
  2. Whether the Judge misapplied the legal principles established by the Supreme Court in R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15 concerning exclusion under Article 1F of the Refugee Convention.
  3. Whether the appellant’s mens rea for war crimes or crimes against humanity was properly assessed, including the legal implications of knowledge and intent in relation to participation in a common plan.
  4. Whether the defence of duress was appropriately considered and applied in the appellant’s case.
  5. The proper application and interpretation of exclusion provisions under Regulation 7 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006.

Arguments of the Parties

Secretary of State's Arguments

  • The Immigration Judge failed to resolve conflicts in the evidence, particularly contradictions between the appellant's media interviews admitting to killings and his oral denials.
  • The Judge made a material misdirection by misapplying the Court of Appeal decision in JS (Sri Lanka), requiring reconsideration of the factual matrix and criminal culpability standards.
  • The appellant was a paid-up member of the Janjaweed militia for over three years, voluntarily participating in war crimes and crimes against humanity.
  • The appellant’s credibility was undermined by inconsistent evidence, and exclusion from refugee status was justified under Article 1F of the Refugee Convention.
  • The defence of duress was not established as the appellant was not under imminent threat nor was his freedom of will so constrained as to negate criminal responsibility.

Appellant's Arguments

  • The appellant disputed the Secretary of State’s reliance on the media interviews, denying admissions of killing civilians.
  • He claimed forced participation in the Janjaweed under duress, fearing harm to his family if he refused to fight.
  • The appellant asserted he left the militia at the earliest opportunity and did not intend to commit war crimes or crimes against humanity.
  • His oral evidence explained his lack of intent and reluctance to participate in violence, contrasting with the Secretary of State’s assertions.
  • Legal submissions emphasized that the correct authority on exclusion was the Supreme Court decision in JS (Sri Lanka) [2010] UKSC 15, not the Court of Appeal’s earlier ruling.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
R (on the application of JS (Sri Lanka)) v SSHD [2010] UKSC 15 Defines the standard for exclusion under Article 1F of the Refugee Convention; establishes that "serious reasons for considering" a person falls within exclusion grounds is a lower standard than proof beyond reasonable doubt; clarifies mens rea requirements for complicity in international crimes. The Court found the First-tier Tribunal Judge erred by misapplying JS (Sri Lanka), failing to properly assess the appellant’s knowledge and intent, and not adequately considering the factual matrix and mens rea.
Yasser Al-Sirri v SSHD [2009] EWCA Civ 222 Clarifies the standard of proof for exclusion as above mere suspicion but below criminal conviction. Approved by the Supreme Court in JS (Sri Lanka) and used to assess the appellant’s liability for exclusion.
Gurung v SSHD [2002] UKIAT 04870 Previous guidance on determining serious reasons for considering a person guilty of international crimes. Rejected by the Supreme Court in JS (Sri Lanka) as deflecting from key factors such as organisation size and individual involvement.
Bundesrepublik Deutschland v B and D (Cases C-57/09 and C-101/09) CJEU (Grand Chamber) Establishes that refugee exclusion for membership in terrorist organisations requires individual assessment of responsibility based on objective and subjective criteria. Applied to emphasize the need for individual assessment of the appellant’s role and knowledge within the Janjaweed militia.
AA (Art 1F(a) - complicity - Arts 7 and 25 ICC Statute) Iran [2011] UKUT 00339 (IAC) Elaborates on complicity under international criminal law, requiring significant contribution to an organisation’s ability to commit crimes against humanity. Used to guide assessment of the appellant’s participation and involvement in crimes against humanity.
MT (Article 1F (a) - aiding and abetting) Zimbabwe [2012] UKUT 00015 (IAC) Defines the defence of duress under international criminal law; sets out the four components necessary for duress to be a valid defence. The Court found the First-tier Tribunal Judge’s analysis of duress inadequate and rejected the appellant’s duress defence based on these principles.

Court's Reasoning and Analysis

The Court began by identifying a material error of law in the First-tier Tribunal Judge’s determination, notably the failure to properly resolve contradictions in the appellant’s evidence regarding his participation in war crimes and crimes against humanity. The Judge accepted the appellant’s admissions to the media but contradicted this with findings that he lacked the necessary intent, which the Court found inconsistent.

The Court emphasized that under the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, particularly Regulation 7, exclusion applies to persons who instigate or participate in serious non-political crimes, including war crimes and crimes against humanity.

Applying the Supreme Court’s ruling in JS (Sri Lanka), the Court clarified that exclusion requires only "serious reasons for considering" a person falls within the exclusion grounds, a standard lower than criminal conviction but above mere suspicion. The Court highlighted the need for clear findings on the factual matrix, including the appellant’s role, knowledge, rank, and duration within the organisation.

The Court found that the appellant’s admitted participation in Janjaweed attacks on villages constituted acts falling within Article 7(1)(k) of the Rome Statute (other inhumane acts causing great suffering or serious injury). The appellant had the necessary mens rea, knowing that his actions would facilitate crimes against humanity.

The Court rejected the appellant’s duress defence, finding no credible evidence that his freedom of will was so constrained as to negate responsibility. The appellant’s conflicting claims about forced recruitment and loyalty to his tribal chief undermined the duress argument.

Consequently, the Court concluded that the appellant was lawfully excluded from refugee status under Article 1F(a) of the Refugee Convention due to his participation in crimes against humanity as a member of the Janjaweed militia.

Holding and Implications

The Court's final decision is DISMISSED the appellant’s appeal.

The First-tier Tribunal Judge’s determination was set aside due to material errors of law relating to the assessment of evidence, mens rea, and duress. The Upper Tribunal remade the decision, upholding the Secretary of State’s exclusion of the appellant from refugee protection under Article 1F(a) of the Refugee Convention for participation in war crimes and crimes against humanity.

This decision directly affects the appellant by affirming the lawfulness of his exclusion and removal. No new legal precedent was established beyond the application and clarification of existing authority, particularly the Supreme Court’s ruling in JS (Sri Lanka).

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AA094382011 (unreported)

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AA094382011 (unreported)
(Sep 19, 2012)