UK - Upper Tribunal, 15 September 2010, SK (Article 1F(a) - exclusion) Zimbabwe [2010] UKUT 327 (IAC)

Country of Decision:
Country of Applicant:
Date of Decision:
[2010] UKUT 327 (IAC)
Court Name:
Upper Tribunal
National / Other Legislative Provisions:
Rome Statute of the ICC
Rome Statute of the ICC - Art 7
Rome Statute of the ICC - Art 25
UK - Refugee or Person in Need of International Protection (Qualification) Regulations 2006
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The Tribunal considered whether a woman who had been involved in invasions of white-owned farms at the behest of the ruling party in Zimbabwe was excluded under Article 1F(a) of the 1951 Refugee Convention. The Tribunal held, first of all, that Article 7(1) of the Statute of the International Criminal Court is usually regarded as providing the best working definition of a crime against humanity for the purposes of Article 1F(a) of the 1951 Refugee Convention. Secondly, it held that where the act or crime does not involve the specifically listed forms of acts or crimes, in order to consider that a crime against humanity had occurred, the Tribunal must consider if the acts participated in by the appellant were of a “similar character” to those specified in Article 7(1)(a) to (j) of the Statute. In so doing, the Tribunal must consider the specific purpose of the crime, its intent and effect, the participation of an appellant in the crime and if needs be whether the appellant made a substantial contribution to the crime.


The applicant was a Zimbabwean woman who had participated in at least 2 invasions of white-owned farms in Zimbabwe as part of a ZANU PF militia. She admitted to having severely beaten farm workers during the invasions, although she had not personally killed anyone. She had been encouraged to join the militia by her uncle, who had taken her in after she was orphaned. She was sexually abused whilst she was with the militia. She was refused asylum and appealed. The Immigration Judge held that she was entitled to protection as a result of Article 3 ECHR but was excluded from the 1951 Refugee Convention and Subsidiary Protection on the grounds that there were serious reasons for considering that she had committed a crime against humanity. She appealed on the basis that she should not have been so excluded.

Decision & Reasoning: 

The Upper Tribunal dismissed the appeal and held that the applicant should be excluded from the protection of the 1951 Refugee Convention and Subsidiary Protection.

The applicant argued that she should not be excluded because she should not be considered to have committed a crime against humanity because she did not meet the requirement of “substantial involvement” in the crime.  She was part of the mob rather than being a ringleader, or part of the hard core of the group. Further, it was argued that her motivation for being involved was fear and a desire to protect herself, rather than to drive white farmers and their workers from their land.

The Tribunal held that the farm invasions in which the applicant participated were crimes against humanity.  It based its analysis of Article 7 of the Statute of the International Criminal Court. It held that the invasions were part of a widespread and systematic attack on white farmers and their workers who were part of the civilian population.  The Tribunal considered that they were inhumane acts iintentionally causing great suffering, or serious injury to body or to mental or physical health. Further they were acts that were similar in character to ”persecution” as defined in Article 7(1)(h) of the Statute of the International Criminal Court. Consequently, they met the test set out in Article 7(1)(k) of the Statute.

The Tribunal further held that the applicant’s level of participation in the acts were sufficient to meet the requirements for knowledge and intent found in Article 30 of the Statute of the International Criminal Court. Her plea of duress had been rejected and the issue was one of her intent in committing the acts rather than her motivation. The Tribunal held that there was no legal requirement of substantial involvement as the applicant had argued, but if there was, the applicant’s evidence about her involvement was sufficient to meet that requirement.


Appeal dismissed.