POAC, the Lord Alton standard, and the PMOI analogy

The statutory architecture

The LTTE was added to Schedule 2 of the Terrorism Act 2000 by the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001, laid on 29 March 2001 by the then Home Secretary. Proscription requires the Secretary of State to believe the organisation is "concerned in terrorism" within s.3(5) — committing, participating in, preparing for, promoting, or encouraging terrorism (including its unlawful glorification under s.3(5A)–(5B), inserted by the Terrorism Act 2006).

An application for deproscription is made under s.4 to the Secretary of State. Refusal may be appealed to the Proscribed Organisations Appeal Commission (POAC), a closed-material-procedure tribunal under s.5. Onward appeal lies to the Court of Appeal on a point of law under s.6.

The standard — Lord Alton [2008]

The standard of review is judicial-review principles applied with heightened intensity where fundamental rights are engaged. In Lord Alton of Liverpool & Others v SSHD [2008] EWCA Civ 443; [2008] 1 WLR 2341, the Court of Appeal directed at §43 that the question whether an organisation is currently concerned in terrorism is "essentially a question of fact". [cite]

The PMOI precedent — POAC 2007 / CA 2008

The People's Mojahedin Organisation of Iran (PMOI/MEK) is the only organisation ever successfully deproscribed in UK history through POAC. POAC ruled in favour of deproscription on 30 November 2007 (Lord Alton, PC/02/2006), finding the Home Secretary had no reasonable grounds to believe the PMOI remained concerned in terrorism — crucially because the organisation had verifiably decommissioned its armed wing and was subject to ongoing OSCE and UN monitoring at Camp Ashraf. The Court of Appeal upheld POAC's approach in [2008] EWCA Civ 443; the Home Secretary deproscribed PMOI on 24 June 2008. [cite]

Where the PMOI analogy breaks

The PMOI succeeded because a third party — the OSCE / UN presence at Camp Ashraf — could verify disarmament. For the LTTE, no equivalent verification body exists, and JTAC's continuing assessment (upheld in POAC 2024) is that the post-2009 international network survived independently of any Sri Lanka–based command. The PMOI route therefore is not available unless and until such a verification architecture exists. This is a structural, not a polemical, observation.

POAC PC/06/2022 — Arumugam v SSHD (21 June 2024)

Following the procedural relief in POAC 1 (PC/04/2019, Elisabeth Laing J), the Home Secretary took a fresh maintenance decision on 31 August 2021. [cite] The TGTE appealed again; Mr Justice Jay's open judgment of 21 June 2024 dismissed all four grounds:

• Ground 1 — no longer an "organisation". Dismissed. The s.121 definition is deliberately broad; JTAC's "cellular structure" theory accepted as a reasonable interpretation, though POAC noted at §115 that "at first blush" it was no more than an assertion.
• Ground 2 — no reasonable grounds. Dismissed. POAC accepted JTAC's evidential anchors of the 4 July 2020 suicide IED death of a former LTTE intelligence operative on Black Tigers' Day, and the 2 December 2020 claymore-mine cache found with a former LTTE member.
• Ground 3 — discretion. Dismissed.
• Ground 4 — ECHR proportionality. Dismissed. Proscription remained a justified, proportionate interference.

POAC expressly noted, however, that the Ministerial Submission had overstated the number of states proscribing LTTE and misstated other matters, though these errors were not material to the outcome. [cite]

The asylum incoherence — KK and RS [2021] UKUT 130

The Upper Tribunal in KK and RS distinguished between LTTE membership and non-violent Tamil separatist political activity, recognising that Tamil pro-Eelam advocacy is not in itself equivalent to terrorism — but that the Government of Sri Lanka makes no such distinction. The result is a perverse coupling in which UK proscription, applied without granular care, can reinforce the GoSL conflation it does not endorse. [cite]