Tribunal decisions

The decision

IAC-AH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02045/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 1 June 2022
On the 21 July 2022

Before

UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE KAMARA

Between

PG
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Mackenzie, counsel instructed by JCWI
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. In a decision promulgated on 15 July 2021, Upper Tribunal Judge Hanson set aside the decision of the First-tier Tribunal allowing the appellant’s appeal against the Secretary of State’s decision, dated 17 February 2020, that he fell to be excluded from the protection of the Refugee Convention under Article 1F(a).
2. This is the continuation hearing which has been transferred to a new constitution of the Upper Tribunal, at the request of those representing the appellant, to consider further the issue of whether the appellant is excluded from the protection of the Refugee Convention.
Anonymity
3. An anonymity direction was made previously and is reiterated below owing to the appellant’s serious mental health issues as well as the nature of his protection claim.
Background
4. The background to the appellant’s protection claim is set out in full in his lengthy interview records and detailed witness statements and can be summarised as follows. He is of Tamil ethnicity and was born in Batticaloa District in the Eastern Province of Sri Lanka. His father was a Grama Sevaka, a public servant appointed by the central government to carry out administrative duties. The appellant’s uncle assisted the LTTE and owing to that support, was killed, in 1987. The appellant’s family were displaced to Batticaloa town where he remained until he was forcibly recruited by the LTTE in 1999. The appellant began LTTE training but, after sustaining an injury, was assigned to the Intelligence Unit. During 2000, the appellant’s LTTE handler, ‘K1’ arranged for him to work in Colombo for a mobile telephone company in called Giri Communications. At K1’s behest, the appellant began working for Dialog Telecommunications, in 2005. While employed at Dialog Telecommunications, the appellant was required to assist the LTTE on five occasions between December 2006 and around the end of 2007 or beginning of 2008. Specifically, he was asked to obtain 55 pre-paid SIM cards in false names; to provide information about when army personnel had returned home on leave; to trace the whereabouts of the personal secretaries of the former President, Mahinda Rajapaksa, and the former Defence Secretary, Gotabaya Rajapaksa in order to find out when they would arrive at a certain event; to trace the whereabouts of Douglas Devananda, the leader of the EPDP, and to undertake surveillance on specific checkpoints.
5. The appellant left Sri Lanka for the first time in 2010, for Dubai but cut short his trip after his father was abducted by the LTTE with the aim of forcing the appellant’s return. Upon his return, the appellant was made to agree that he would continue to help the LTTE before his father was released. The appellant was asked to provide a satellite telephone by another LTTE member K2 as well as to provide further information and services by K1. He ultimately left Sri Lanka in August 2011 for the United Kingdom, as a dependent upon his wife’s Tier 4 visa.
6. The appellant’s father was kidnapped by the Karun group in July 2014 and released after a ransom was paid. In August 2014, armed men including K2 came to the family home in search of the appellant and took his father away. The appellant’s father was released from an army camp during 2018, with reporting requirements, having been interrogated about the appellant and tortured. The appellant applied for asylum in August 2014. After hearing about the ill-treatment of his father, the appellant attempted to take his life via an overdose. He has since been treated for anxiety and depression. Lastly, the appellant became involved in Tamil diaspora activities from late 2016 onwards and joined the Transnational Government of Tamil Eelam (TGTE) shortly thereafter.
The Secretary of State’s decision of 17 February 2020
7. In a decision dated 17 February 2020, the respondent accepted the appellant’s account of his involvement with the LTTE, stating at paragraph 121, “You have given a consistent and credible account of your time with the LTTE. It is therefore accepted that you were a member of the LTTE for 10 years and worked for them passing intelligence information undercover in a telecommunications company.”
8. The respondent did not accept that the appellant did not want to join the LTTE for the following reasons. He had remained with them throughout the war, made no attempts to dissociate himself from them, he had spoken of his support for an independent state for Tamils during his asylum interviews and had joined the TGTE.
9. The main reason given for refusing the appellant’s claim was that he was excluded from the protection of the Refugee Convention by virtue of Article 1F(a) because he had passed information to the LTTE to enable them to carry out extra judicial attacks and killings. At paragraph 127, the respondent considered that there were serious reasons for believing that the appellant had ‘acted with both knowledge and intent and contributed to the overall aims of the LTTE which were systematic and widespread.’
10. At paragraph 129 of the decision, the respondent concludes that “it is considered that you aided and abetted the commission of crimes against humanity in Sri Lanka during the time that you were working at the dialogue telecommunications company and you were passing information to the LTTE to enable them to carry out extra judicial political assassinations.‘
11. Considering the appellant’s Article 3 claim, the Secretary of State did not accept that the appellant was of any adverse interest to the Sri Lankan authorities owing to inconsistencies in his account as well as his ability to leave safely. As for his sur place activities, the respondent did not accept that the appellant had a significant role in the TGTE. In addition, the respondent concluded that the appellant was also excluded from a grant of Humanitarian Protection under paragraph 339c of the Rules and was ineligible for a grant of leave on Article 8 grounds.
12. A supplementary decision letter dated 26 February 2020, rejected the appellant’s Article 3 claim made on the grounds of his mental health.
The decision of the First-tier Tribunal
13. The appeal hearing before the First-tier Tribunal was focused on the refugee Convention, Humanitarian Protection and Article 3 ECHR on health grounds. The appellant did not give evidence and the appeal proceeded by way of submissions alone. Both representatives also addressed the issue of whether the appellant was subject to duress by the LTTE. In a decision promulgated on 28 August 2020, allowing the appeal, the First-tier Tribunal found that the appellant was not involved in the commission of war crimes and that Article 1F did not apply. Considering the Refugee Convention, the judge found that the appellant fell into a risk category identified in GJ, in that he was an individual with a significant role in diaspora activities. The judge did not consider either the issue of duress or the appellant’s discrete Article 3 medical claim.
The grounds of appeal to the Upper Tribunal
14. The Secretary of State, in her grounds of appeal to the Upper Tribunal, argued that the issue before the First-tier Tribunal was whether the appellant knew the acts to which he contributed ‘would cause incidental loss of life or injury to civilians in the ordinary course of events.’ The respondent referred to Articles 8(2)(b)(iv) and 30(2)(b) of the Rome Statute, as well as paragraphs 45-67 of the reasons for refusal letter which set out incidents relating to LTTE activities in Colombo between 2007 and 2009, arguing that the judge’s finding that the appellant did not have the requisite mens rea was unsustainable given her acceptance that he was aware that he was providing information regarding potential targets for the LTTE. Permission to appeal was granted on the basis sought.
15. Following a hearing before Upper Tribunal Judge Hanson on 6 July 2021, the decision of the First-tier Tribunal relating to the exclusion issue was set aside for the reasons set out in the grounds. It was noted that there was no challenge to the judge’s finding that the appellant was entitled to international protection owing to his TGTE profile.
Directions
16. The parties attended a Case Management Review Hearing (CMRH) on 6 October 2021and agreed that the outstanding questions for determination are whether the appellant is excluded from the protection of the Refugee Convention by virtue of Article 1F and specifically:
(i) Was the appellant aware that the information he provided to the LTTE in the course of his work as an intelligence officer would be used in attacks that would, in the ordinary course of events, cause incidental loss of life or injury to civilians, which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated?
(ii) If so, can the appellant avoid exclusion on the basis that he was acting under duress?
17. In addition, it was ordered that the First-tier Tribunal’s findings of fact stand as unchallenged, specifically, the appellant was a foot soldier in the LTTE, that he had no direct knowledge of or complicity in any actual attacks carried out or attempted on behalf of the LTTE and all the information provided by the appellant to the LTTE was in relation to potential military and political targets.
18. Further directions were made following a further CMRH on 22 March 2022, which addressed the service of an agreed bundle, an authorities bundle as well as skeleton arguments. In particular, the respondent was directed to serve a skeleton argument no later than 21 days before the full hearing, albeit she only did so on 25 May 2022. The respondent’s authorities bundle, regarding which there were no directions, was served on 31 May 2022 and she did not contribute to the agreed bundle. Instead, the respondent served a 471-page paper bundle on the day of the hearing.
The hearing
19. There was a small delay to the start of the hearing owing to the respondent’s failure to serve her bundle on the appellant.
20. The appellant was present at the beginning of the hearing. We did not expect him to give evidence on account of the evidence of Dr Dhumad, set out in his reports dated 6 August 2021 and 21 March 2022. Twice, during the day’s proceedings, the appellant became visibly upset and left the hearing in obvious distress.
21. Dr Suthaharan Nadarajah, a Senior Lecturer in International Relations in the department of Politics and International Studies at the School of Oriental and African Studies attended the hearing and was tendered for cross-examination. A note of the questions posed by Ms Cunha as well as during the brief re-examination and the answers he gave are set out in our notes of the proceedings which we have considered in reaching our decision. The questioning of Dr Nadarajah did not result in any evidence which differed from that in his detailed report.
22. We heard oral submissions from both representatives which can be summarised as follows. Ms Cunha relied on the decision letter, her skeleton argument as well as the respondent’s authorities bundle which addressed the issues of complicity and duress.
23. Ms Cunha made the following points. There was no case law on Article 8 (2)(iv) of the Rome Statute however the 1997 judgment in Prosecutor v Edemovic, ICTY, Case NO. IT-96-22-A was relevant. The Secretary of State had the burden of demonstrating that the LTTE were perpetrating war crimes and that they were disproportionate. The respondent was prepared to accept that in the context of a ceasefire were a fighter to attack a general even if the general was off duty, this would not necessarily make it a war crime.
24. An indiscriminate attack on civilians even if the target was a general was not protected under international human rights law. The Secretary of State’s view was that the LTTE were responsible for suicide bombings which often targeted civilians and this demonstrated that war crimes were committed. Statistics and reports which were available in the respondent’s bundle confirmed that civilians were the targets as opposed to military personnel. While there was no evidence that the LTTE were responsible for the attacks, Dr Nadarajah said that it was more likely than not that they would have been. There were serious grounds for considering that the LTTE committed a war crime. A report in the background material entitled Sri Lanka Untold Story referred to the motivation of the LTTE to wage war and its ruthlessness to gain a separate state. A report of a suicide bombing before the appellant’s recruitment went to his knowledge of the movement in 1999. The appellant had happily shared details about his father with LTTE cadres and voluntarily joined. That he was committed to the cause and continues to be, is evidenced by his membership of TGTE. Further incidents from 2005 until 2007, showed that civilian casualties went up massively which did not demonstrate proportionality. Nearly as many military personnel were killed as civilians. The crimes committed were not proportionate. The appellant had aided and abetted the LTTE and should be excluded from protection. He was trained for nearly 6 years which coincided with the ceasefire during which his skills were being matured and he acquired knowledge necessary to assist the LTTE later. During his time in Giri Communications he was a dormant intelligence officer, and it was in his brief that he would work in Dialogue Telecommunications in the future to assist the LTTE to achieve its aims
25. Ms Cunha argued that the appellant knew in the ordinary course of events that there would be victims of indiscriminate violence owing to the information he passed on. In his interview when the appellant spoke of one target being a Tamil general, he indicated that he did not feel comfortable giving those details to his LTTE commander which showed that he must have been aware of what could happen and, even then, he was concerned not about risk to civilians but to a fellow Tamil. This demonstrated how ingrained the LTTE ideology was and that he endorsed it and it demonstrates that he had intent. The appellant was a technician passing on information and the objective evidence showed that he must have had more involvement than he claimed. The appellant was motivated by a continuing belief in the LTTE and willingly provided intelligence regarding senior members of government, even if he did not know that this would lead to the death of innocent civilians.
26. On the issue of duress, Ms Cunha made the following points, in summary. Duress was not a defence for someone who has committed a crime against humanity. The respondent did not, in any event, accept that the appellant’s family would be harmed. It was not accepted that if the LTTE were interested in the appellant they would have allowed him to leave for Dubai. His immigration history undermined his claim to be at risk from the LTTE. The threshold for duress was incredibly high and the appellant did not meet that threshold. Reliance was placed on the judgement in Sivakumar v Canada [1994] 1 CF 433 as well as an extract from Hathaway said to support the respondent’s case that the killings were systemic. The appellant was not at imminent risk as he was with the LTTE for ten years without incident.
27. For his part, Mr Mackenzie closely followed the structure of his skeleton argument and incorporated a summary of the component parts of Article 8 (2) (b) (iv) of the Rome Statute. He made the following points. The panel only had to consider the appellant’s defence if he committed a crime to start with. There was no previous case law in an asylum context nor the International Criminal Court. Article 8 (2) (b) (iv) contained an intentionally demanding test and the respondent had been unable to meet any of the elements.
28. In attempting to undermine the appellant’s account, the respondent was making submissions which were not open to her because the respondent had accepted the extent of the appellant’s activities, the findings of fact of the First-tier Tribunal were not appealed and the Upper Tribunal’s directions stated that those findings stand. It was not open to the respondent to suggest that the appellant was more involved than he admitted. It was accepted that the issue of the appellant’s claimed forcible recruitment was a matter in dispute. The appellant was asked to do very little by the LTTE. For the first 6 years he did nothing and thereafter he undertook a handful of tasks over the course of two years. Despite his favourable position in a leading mobile telephone company, he was very low level and a far from experienced operative. The respondent did submit the appellant meant to cause deaths, but they would have occurred in the ordinary course of events. The respondent was unable to show that the appellant contributed to any specific attack so was inviting the panel to draw inferences from his position in the LTTE. Neither Dr Nadarajah’s evidence nor his expertise was challenged by the respondent. In short, the report notes that the appellant was an outsider, of low rank and there were a range of reasons why he was asked to undertake the tasks he did. Dr Nadarajah had also emphasised the importance of the need-to-know principle, the use of compartmentalisation and the iron discipline of the LTTE. The 2008 report of Dr Smith relied upon by the respondent made similar observations.
29. Mr Mackenzie argued that the Secretary of State was relying on specific incidents in Colombo to illustrate what the appellant must have known even though he was not implicated in them. He went through each incident relied upon by the respondent in detail, addressing the target and the number and categories of casualties. Commenting on the table of casualties in the respondent’s bundle, he submitted that it was obviously not evidence of people killed by the LTTE because the 10,000 civilians who died in 2009 were victims of the Sri Lankan Army and the 2,262 civilians who died in 2019 were victims of the Easter attack carried out by an Islamist group. Only seven of the incidents identified by the respondent involved a suicide bomber. Dr Nadarajah found three more and his opinion was that the military advantage would be very high.
30. The authorities relied upon by the respondent were of limited to no relevance. The Canadian case was expressly disapproved of in JS (Sri Lanka) [2010] UKSC 15 and the facts of Edemovic had no connection to the appellant’s situation. The Rome Statute states that it is not enough that civilian deaths occurred, they must be clearly excessive.
31. There is little direct authority on what this means which made it difficult to prosecute someone like the appellant who was in the background. It is only commanders who would know what the overall military advantage is as set out in the academic material in the appellant’s authorities bundle. It was conceded that there were some incidents which took place in Colombo at the time the appellant was active for the LTTE, some of which involved civilian casualties. It was not accepted that the incidental loss of life to civilians was clearly excessive in relation to the high military advantage involved. The Secretary of State had no answer to these matters, which involved an exacting standard, and she had not argued that the targets identified to the appellant by his LTTE handler were not legitimate. All the suicide bombings mentioned in the background material were aimed at military targets, with the exception of two occasions when the bombs went off prematurely owing to errors.
32. On the question of duress, the appellant’s evidence was clear, that he believed that his parents would be harmed. He had said it repeatedly in interview and in his witness statements. He was found to be credible and Dr Nadarajah’s report corroborates his account. There was no need to look at aged cases to know that duress was a defence to war crimes as the relevant test was set out in AB (Article 1F(a) – defence – duress) Iran [2016] UKUT 00376 (IAC). It was irrelevant that the appellant was involved in the TGTE which is a peaceful organisation. The appellant can support a separate state without supporting violence.
33. Midway through Mr Mackenzie’s submissions, Ms Cunha stated that she had limited time to prepare, and she wished to submit a document which she needed time to locate. On the understanding that this would assist the panel, we agreed that she could submit it within 7 days of the hearing and that the appellant would have a further seven days to respond, if necessary.
34. At the end of the hearing, we reserved our decision.
35. As of 28 June 2022, no further document from Ms Cunha had arrived and we decided to proceed to determine this appeal.
36. In coming to our decision, we have taken account of all the evidence before us as well as the submissions made, both oral and written.
Discussion
37. The Secretary of State issued a certificate, pursuant to section 55 of the Immigration, Asylum and Nationality Act 2006, that the appellant is not entitled to the protection of Article 33(1) of the 1951 Convention because Article 1(F)(a) applies to him.
38. Article 1F(a) of the 1951 Convention says as follows:
‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;’
39. It is uncontroversial that the burden of proof is upon the respondent to demonstrate that the appellant is excluded from the protection of the 1951 Convention under Article 1F, applying Al-Sirri [2009] EWCA Civ 222. As far as the explanation of duress, which is put forward by the appellant, once the burden of raising a defence has been crossed, which it clearly has in this case, the overall burden remains upon the Secretary of State to establish that there are serious reasons for considering that the appellant did not act under duress, applying AB (Iran).
40. In terms of the standard of proof, the evidential burden is on the Secretary of State to a lower threshold than that required for a criminal conviction, applying JS (Sri Lanka). Nonetheless, it was emphasised in Al-Sirri [2012] UKSC 54 that Article 1F must be interpreted restrictively and applied with caution, at [75].

We are, it is clear, attempting to discern the autonomous meaning of the words “serious reasons for considering”. We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions:

(1) “Serious reasons” is stronger than “reasonable grounds”.
(2) The evidence from which those reasons are derived must be “clear and credible” or “strong”.
(3) “Considering” is stronger than “suspecting”. In our view it is also stronger than “believing”. It requires the considered judgment of the decisionmaker.
(4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law.

(5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious Page 29 124 Page 30 reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decisionmaker is to apply the words of the Convention (and the Directive) in the particular case.
41. The lack of reference to the Rome Statute of the International Criminal Court in the decision of the First-tier Tribunal was the basis for the Secretary of State’s appeal to the Upper Tribunal and we have considered its provisions with care.
42. The respondent relies on Article 25(3) of the ICC Statute, in relation to criminal responsibility which states as follows, the sections in bold representing the focus of the Secretary of State’s arguments:

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
43. Article 30 of the ICC Statute address the issue of mens rea in the following manner:

Mental element
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.
44. The definition of a war crime is set out in Article 8 of the ICC Statute, with the respondent relying on the violations referred to in Article 8 (2)(b)(iv):

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
45. The footnotes to Article 9 (Elements of Crime) of the ICC, provide guidance in interpreting Article 8 (2)(b)(iv) in the following manner:

36 The expression “concrete and direct overall military advantage” refers to a military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack. The fact that this crime admits the possibility of lawful incidental injury and collateral damage does not in any way justify any violation of the law applicable in armed conflict. It does not address justifications for war or other rules related to jus ad bellum. It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict.

37 As opposed to the general rule set forth in paragraph 4 of the General Introduction, this knowledge element requires that the perpetrator make the value judgement as described therein. An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time.
46. Both representatives referred to the dearth of domestic or international legal authority on Article 8(2)(b)(iv). Helpful academic analysis was provided by Cryer, Robinson & Vasiliev in Introduction to International Criminal Law and Procedure, with respect to the proportionality principle in identifying whether the anticipated harm is excessive in relation to the anticipated military advantage. That principle, described by Cryer as ‘profoundly difficult’ to apply, was considered in R(Campaign Against the Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020 at [25]:

The “principle of proportionality” prohibits an attack launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the concrete and direct overall military advantage anticipated: see Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court. The “principle of proportionality” does, however, permit belligerents to carry out proportionate attacks against military objectives, even when it is anticipated that civilian deaths or injuries will inevitably occur as a result.
47. The academic material provided in the authorities bundle makes the case that each case must be decided on its own facts. We accept that there is further difficulty in applying the proportionality principle in a case such as that of the appellant, where it is accepted that he is a foot soldier rather than a person with command responsibility.
48. We were assisted by a highly detailed expert opinion from Dr Nadarajah. He was asked to comment on the issues in this case within his area of knowledge and expertise. We note that following extensive questioning Ms Cunha, put forward no criticism of Dr Nadarahjah’s expertise nor of his opinion. We found his written evidence and oral testimony to be detailed, helpful and fully sourced. We conclude that his evidence is reliable and place substantial weight upon it.

49. We remind ourselves of the preserved findings of fact as found by the First-tier Tribunal and confirmed in the Upper Tribunal directions set out above. The appellant was a foot soldier in the LTTE with no direct knowledge or complicity in any actual attacks carried out or attempted on behalf of the LTTE and all the information he provided was in relation to potential military and political targets.
50. It is conceded on behalf of the appellant that around sixteen incidents involving a suicide bomber, as set out between paragraphs 76 and 95 of the Secretary of State’s decision letter, took place in Colombo at the time the appellant was assisting the LTTE.
51. It was further conceded on the appellant’s behalf that there were civilian casualties involved in some of these incidents. It was not accepted that the incidents for which the LTTE were responsible caused incidental injury which was clearly excessive in relation to the concrete and direct overall military advantage anticipated and that even had this been the case the appellant would not have known this and if he did, he was acting under duress.
52. To assess the appellant’s culpability, we begin with a closer examination of his activities on behalf of the LTTE connected to his employment at a telecoms company. He was asked to provide 55 SIM cards, to provide information about Mahinda and Gotabaya Rajapaksa, Douglas Devananda, the location of various army officers and to undertake surveillance at army camps and checkpoints. It was not contended on the respondent’s behalf that the targets were illegitimate.
53. The Secretary of State does not argue that any attacks were carried out on the targets owing to the information provided by the appellant. Nor does she contend that any attacks were planned on those targets owing to information provided by the appellant. We accept the evidence of Dr Nadarajah that it could not be assumed that the information the appellant provided would be used to plan an attack of some sort. He explains, in compelling detail, that the use of the need-to-know principle and compartmentalisation of the LTTE meant that the appellant’s account of not knowing what the information he provided would be used for was ‘entirely plausible.’ We have considered the opinion put forward by the appellant when he was interviewed, that he thought the LTTE might send a suicide bomber to an army installation he observed. We accept, having considered his detailed witness statement which explains that the appellant was merely speculating at this point. Furthermore, in the light of Dr Nadarajah’s knowledge of the structure of the LTTE, we find that the appellant was most unlikely to know the reasons behind his LTTE handler’s requests for information. Put simply, there is no evidence before us that any attacks were planned or took place owing to the information provided to the LTTE by the appellant.
54. Given the Secretary of State’s inability to show that the intelligence provided by the appellant led to planned or actual attacks by the LTTE, we could end our consideration here. Nonetheless, we examine the other elements of a crime for completeness. The respondent has not established the overall military advantage anticipated by the LTTE from any hypothetical attacks on the legitimate military targets. We accept that the appellant, given his lowly position in the LTTE, would be unable to know what the military advantage was or whether any resulting civilian casualties would be clearly excessive. Ms Cunha suggested that the information provided by the appellant would have been used for a suicide bomb which would have involved civilian casualties. There was no evidence before us to suggest that suicide bombings by the LTTE were common. The evidence referred to in the decision letter listed seven suicide bombings likely to have been carried out by the LTTE. Dr Nadarajah identified a further three, all of which he described as being targeted at high value military or political targets.
55. In considering the level of attacks as well as whether civilian casualties were clearly excessive, we have noted and accept Dr Nadarajah’s description of each of the attacks as well as his unchallenged opinion that the LTTE took care to reduce civilian casualties as well as that the worst civilian casualties took place when something occurred to prevent the suicide bomber from reaching their intended target. Ms Cunha did not draw our attention to any evidence to support the Secretary of State’s position in relation to the likely level of civilian casualties which might occur, in the ordinary course of events, following a suicide bombing attack. It follows, that the respondent was unable to show that there was a tendency by the LTTE to use suicide bombers and that any resulting casualties were clearly excessive.
56. Even had the elements of war crimes existed, we find that the appellant lacked mens rea. On this point, we consider the appellant’s belief, as set out in his witness statement of 18 July 2020, that Sri Lankan government falsely attributed attacks to the LTTE. Dr Nadarajah provides support for this view in his opinion, with reference to official statements made by the LTTE to this effect. There is simply no evidence that the appellant was aware that the information he gave to the LTTE would be used in attacks which, in the ordinary course of events, would cause incidental loss of life or injury to civilians which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated.
57. It follows that we find that the respondent has been unable to establish that the appellant is criminally responsible, as set out in Article 25(3) of the ICC Statute
58. On the issue of duress, we note what the appellant has to say. That is, he provided information to the LTTE because he was faced with threats to kill his parents. However, given our findings above, there is no need for us to consider the question of duress.
59. We conclude that the appellant is not excluded from the protection of the Refugee Convention.

Notice of Decision

The appeal is allowed on asylum grounds.

Direction Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

Signed: T Kamara Date: 28 June 2022
Upper Tribunal Judge Kamara

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed: T Kamara Date: 28 June 2022
Upper Tribunal Judge Kamara

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email