R (Bashir and Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Foskett J,Jackson,Briggs,Irwin LJJ |
| Judgment Date | 25 May 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 May 2017 |
England, High Court, Queens Bench Division.
Court of Appeal.
(Foskett J)
(Jackson, Briggs and Irwin LJJ)
Treaties — Application — Colonies and dependent territories — Convention relating to the Status of Refugees, 1951 — United Kingdom signing and ratifying Refugee Convention — United Kingdom extending Refugee Convention to Colony of Cyprus — Cyprus gaining independence in 1960 — United Kingdom retaining sovereignty over Sovereign Base Areas (“SBAs”) in Cyprus following independence — Whether Refugee Convention applying to SBAs in Cyprus as matter of public international law — Whether Refugee Convention continuing to apply following independence — Bancoult (No 2) — Whether SBAs constituting new political entity — Treaty of Establishment of the Republic of Cyprus, 1960 — Cyprus Act 1960 — Whether Refugee Convention applying to SBAs from their inception — United Kingdom obligations under international law — Whether claimants entitled to live in United Kingdom — Validity of Secretary of State's decision to refuse claimants admittance
Territory — Colonies — Cyprus — British Colony until independence in 1960 — Treaty of Establishment of the Republic of Cyprus, 1960 — Cyprus Act 1960 — United Kingdom retaining sovereignty over Sovereign Base Areas in Cyprus — Exclusion of SBAs from territory of Republic of Cyprus — Whether Refugee Convention extending to SBAs — Whether Refugee Convention continuing to apply following independence — Bancoult (No 2) — Whether SBAs constituting new political entity — Whether Refugee Convention applying to SBAs from their inception — Factual and legal position of SBAs — Continuing public international law obligations — Obligations of United Kingdom — Whether claimants entitled to live in United Kingdom — Validity of Secretary of State's decision to refuse claimants admittance
States — Cyprus — British Colony — Creation of Republic of Cyprus in 1960 — British Sovereign Base Areas in Cyprus — United Kingdom retaining sovereignty over SBAs after independence — Whether SBAs continuing political entity or new political entity — Bancoult (No 2) — Obligations of States — Whether international obligations of colonial power continuing — Whether Refugee Convention applying to SBAs — Obligations of United Kingdom — Whether claimants entitled to live in United Kingdom — Validity of Secretary of State's decision to refuse claimants admittance
Aliens — Refugees — Right of abode — Claimants' rights under Refugee Convention — Claimants resident in British Sovereign Base Areas in Cyprus — Whether Refugee Convention extending to SBAs — Obligations of United Kingdom under international law — Full discharge of obligations — Whether claimants entitled to live in United Kingdom — Validity of Secretary of State's decision to refuse claimants admittance — The law of England
Summary:2The facts:—Cyprus was a British colony which became the independent Republic of Cyprus in 1960. At independence, the United Kingdom retained certain parts of what had been the Colony of Cyprus as Sovereign Base Areas (“SBAs”) on which were located British military bases and over which the United Kingdom retained sovereignty. The two main areas were Akrotiri in the south and Dhekelia in the east. Settlements that were under the sovereignty, and formed part of the territory, of the Republic of Cyprus also existed as enclaves within SBA territory. The Treaty of Establishment of the Republic of Cyprus, 1960 (“the Treaty”) was given effect in United Kingdom law by the Cyprus Act 1960 (“the Act”).3 In 1956, the United Kingdom, which had signed the Convention relating to the Status of Refugees, 1951 (“the Refugee Convention”) in 1951 and ratified it in 1954, had extended it to the Colony of Cyprus by means of a formal declaration pursuant to Article 40(1),4 which took effect from 23 January 1957. After
1960, there was no declaration regarding the application of the Refugee Convention to the SBAsThe claimants represented a group of asylum seekers who had been rescued off the Cyprus coast in 1998 by British servicemen based in Cyprus, while attempting to reach Italy by boat, and taken to the SBAs. They had claimed asylum, and were living in poor conditions in former British forces' accommodation.
In 2003, Cyprus and the United Kingdom concluded a Memorandum of Understanding regarding the resettlement in the Republic of Cyprus of refugees who arrived in the SBAs after that date. In 2005, the claimants were informed that they would be recognized as refugees, under the Refugee Convention and its 1967 Protocol, with a right to reside in the Republic of Cyprus following an informal agreement between Cyprus and the United Kingdom to extend their 2003 Memorandum of Understanding. However, in 2008 Cyprus indicated that it would not adhere to that informal agreement. In 2013, the claimants, whose living conditions had deteriorated, confirmed their wish to move to the United Kingdom. In a letter to the United Kingdom authorities dated September 2013, the claimants and the United Nations High Commissioner for Refugees (“UNHCR”) stated that relocation of refugees to the Republic was no longer a desirable or practical option given the financial crisis prevalent in Cyprus and its decision not to accept any more refugees. In a letter dated 25 November 2014, the Secretary of State refused the claimants permission to move to the United Kingdom to live. The claimants sought judicial review of that decision.
The claimants argued inter alia that the Refugee Convention extended to the SBAs in Cyprus, and that they were entitled to live in Britain where the United Kingdom could fully discharge its obligations towards them.5 They claimed that the refusal to admit them to the United Kingdom breached their rights under the Refugee Convention and constituted discrimination under Article 14 of the European Convention on Human Rights, 1950 (“the European Convention”).6 The Secretary of State maintained that the Refugee Convention did not apply to the SBAs. She asserted that the claimants and their families, for whom it was said suitable arrangements had been made with Cyprus, had no right to live in the United Kingdom and denied any unlawful discrimination.
Held (by the High Court):—The decision of the Secretary of State was quashed and the matter remitted for reconsideration.
(1) There was no doubt that the Refugee Convention applied to the whole Colony of Cyprus from 1956, and consequently applied until 1960 to the territory that comprised the SBAs (paras. 181–4).
(2) A treaty previously declared by the United Kingdom to be applicable to a territory for whose international relations it was responsible was not automatically extended once the territory had become a new political entity; a fresh declaration was necessary.7 As significant a convention as the Refugee Convention, with its substantive humanitarian obligations, could not be applied to a territory without there being an informed decision. In relation to the SBAs, there had been no adoption of the Refugee Convention or its 1967 Protocol expressly or by widespread, internationally accepted practice. The SBAs were not capable of meeting Refugee Convention obligations due to their physical and social infrastructure. When the SBAs came into existence, they did so as new political entities. There had been no fresh declaration as to the applicability of the Refugee Convention as required. The Refugee Convention had no continuing applicability to the territory of the SBAs by virtue of Article 29 of the Vienna Convention on the Law of Treaties, 1969. Neither did the Refugee Convention apply to the SBAs by means of the European Union Charter or, extraterritorially, by virtue of Article 34 of the Refugee Convention.8 As a matter of international law, therefore, the Refugee Convention did not apply to the SBAs (paras. 185–306).
(3) There was no unlawful discrimination under Article 14 of the European Convention on Human Rights, 1950. Although Section 4A of the British Nationality Act 1981 effectively barred British citizenship from those who sought to obtain it by means of a connection with the SBAs, and there was therefore an inbuilt statutory disadvantage for those resident in the SBAs compared with those resident in British Overseas Territories elsewhere, no declaration of incompatibility with the European Convention had been sought. Article 8 had not been engaged as there had been no interference with the claimants' rights to family and private life (paras. 307–21).
(4) Since the United Kingdom Government had said that it would treat those assessed to be refugees, including the claimants, in accordance with at least the spirit of the Refugee Convention, the defendant acquired obligations towards the claimants under the Launder principle.9 Given that the United Kingdom could not fully give effect to its obligations in the SBAs, it met the test of applying the spirit of the Refugee Convention by resettling the claimants in Cyprus, which was bound by that convention, provided that minimum requirements were met and there was no question of refoulement (paras. 262–347).
(5) In making her decision, the defendant had considered the spirit of the Refugee Convention obligations; she was entitled to regard the United Kingdom as having discharged those obligations by entering into an informal agreement with the Republic of Cyprus pursuant to the 2003 Memorandum of Agreement. However, since the defendant had not considered the UNHCR's September 2013 representations, the decision had failed to take account of a crucial factor and was therefore flawed (paras. 348–400).
The claimants appealed and the defendant cross-appealed.
Held (by the Court of Appeal):—The Refugee Convention applied to the SBAs in Cyprus. The defendant had to take a fresh decision on the basis of the applicability...
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