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Leave to enter - Refugee - Asylum

SK (Zimbabwe) v Secretary of State for the Home Department: Court of Appeal, Civil Division: 19 June 2012


The claimant was a citizen of Zimbabwe. She joined the Zanu PF youth militia in 2001. She took part in two farm invasions. In those, she carried a stick, and beat farm workers, including women. Others set fire to the houses of farm workers, and farm buildings. The groups ensured that the occupants of the farms were evicted. Following her rape by another member of the Zanu PF militia, she left the country.  

In 2002, she arrived in the UK and claimed for asylum in 2008. The secretary of state decided to remove her as an illegal entrant. Her appeal to the Asylum and Immigration Tribunal was unsuccessful. She appealed to the Upper Tribunal (Immigration and Asylum Chamber) (the Upper Tribunal). In the Upper Tribunal, her appeal against the secretary of state to remove her succeeded on human rights grounds but failed on refugee status grounds. It found that she had been excluded from the protection of the United Nations Convention relating to the Status of Refugees 1951 (the Refugee Convention) because her acts in Zimbabwe had, by virtue of being classed as 'other inhumane acts', fallen within the meaning of 'crime against humanity' pursuant to article 7(1)(k) of the Rome Statute of the International Criminal Court 1998 (the Rome Statute). She appealed to the Court of Appeal.

The claimant submitted that the Upper Tribunal: (i) had erred in holding that the farm invasions were inhumane acts ‘of a similar character’ to persecution; and (ii) had misdirected itself as to the meaning and/or effect of the requirement of ‘great suffering, or serious injury to body or to mental or physical health’ pursuant to article 7(1)(k) of the Rome Statute, in that its findings of fact had not permitted the conclusion that the requirement had been met. The appeal would be dismissed.

(1) The critical feature of the requirement of 'similar character' was that 'other inhumane acts' had to be, by their nature and the gravity of their consequences, of comparable character to the other enumerated crimes. They plainly did not have to share the elements of those other crimes. If they did have to be so, they could not be 'other' inhumane acts. The critical epithet was 'similar', not 'identical' or 'same'. As violence goes, other inhumane acts would necessarily fall short of killing, for that was a separately listed crime under the title of 'murder'.

However, it was clearly contemplated that violence short of killing or an intention to kill might fall within article 7(1)(k). Similarly, it was contemplated that violence might lead to serious consequences other than bodily injury, such as 'great suffering' or injury to 'health', mental or physical. What constituted 'other inhumane acts' of similar character was a matter of evidence and judgment, and might depend on all the circumstances of case. The requirement of sufficient seriousness was the inescapable lesson of almost every aspect of the definition in question. The crime had to have, in its context, its intention, and/or in its consequences, an aspect which went beyond the nature of the merely domestic crime, and called for international sanctions.

There was likely to be a strong affinity between the crimes of 'other inhumane acts' and 'persecution' (see [61], [69] of the judgment).

On the findings of the Upper Tribunal, there had been no shortage of individual 'other inhumane acts'. On those findings, there was a strong affinity between the 'other inhumane acts' found by it and the crime of persecution. Accordingly, the Upper Tribunal had been justified in its findings (see [69], [80] of the judgment). ‘Other inhumane acts’, within the meaning of the Rome Statute, or their equivalent, had been charged or found proved in circumstances short of murder or mutilation to the victims of the crimes (see [85] of the judgment).

Where the conduct in question, which had been admitted by the claimant, involved direct participation in severe beatings and joint enterprise responsibility in the two farm invasions as a whole, where the Upper Tribunal had found established to its satisfaction all the ingredients of ‘other inhumane acts’, and the test was not the establishment of criminal guilt but the lower standard of ‘serious reasons for considering’, it was not possible by the use of legal materials to show that the Upper Tribunal’s findings and conclusions were not open in law or ought to be rejected as insufficiently or improperly grounded.

On the contrary, while those legal materials showed still worse acts, they fully justified the conclusion in the case that, pursuant to the Refugee Convention, the claimant was to be excluded from refugee status (see [86], [88], [89] of the judgment). Prosecutor v Akayesu (1998) ICTR-96-4-T considered; Prosecutor v Kayishema and Ruzindana (1999) ICTR-95-1-T considered; Prosecutor v Kupreskic (2000) IT-95-6-T considered; Prosecutor v Blaskic (2000) ICTY, IT-95-14-T considered; Prosecutor v Krstic (2001) ICTY IT-98-33-T considered; Prosecutor v Krnojelac (2002) ICTY, IT-97-25-T considered; Prosecutor v Vasiljevic (2002) ICTY IT-98-32-T considered; Prosecutor v Galic (2003) ICTY IT-98-29-T considered; Prosecutor v Katanga and Chui (2008) ICC-01/04-01/07 considered; R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2010] 3 All ER 881 considered; Prosecutor v Mbarushimana (2010) ICC-01/04-01/10 considered; Prosecutor v Muthaura (2012) ICC-01/09-02/11 considered.

Richard Hermer QC and Alison Pickup (instructed by Howe & Co) for the claimant; Charles Bourne (instructed by the Treasury Solicitor) for the secretary of state.

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