R (Kibris) v Transport Secretary [England, Court of Appeal]
| Jurisdiction | England & Wales |
| Judgment Date | 12 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1093 |
| Date | 12 October 2010 |
| Docket Number | Case Nos: C1/2009/2250 & 2252 |
| Court | Court of Appeal (Civil Division) |
[2010] EWCA Civ 1093
Mr Justice Wyn Williams
Before: Lord Justice Ward
Lord Justice Richards
and
Sir David Keene
Case Nos: C1/2009/2250 & 2252
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Charles Haddon-Cave QC, Robert Lawson QC and Professor Stefan Talmon (instructed by Herbert Smith LLP) for the Appellants
David Anderson QC and Sam Wordsworth (instructed by The Treasury Solicitor) for the Respondent
Professor Vaughan Lowe QC and Akhil Shah QC (instructed by DLA Piper UK LLP) for the Interested Party
Hearing dates : 19–21 May 2010
Lord Justice Richards :
The first appellant (“KTHY”) is a Turkish airline. Since 1999 it has operated several scheduled flights each week between the United Kingdom and Turkey pursuant to an operating permit granted by the respondent Secretary of State under Article 138 of the Air Navigation Order 2005 (“the 2005 Order”).
The second appellant (“ CTA”) is a wholly owned subsidiary of KTHY and operates as a travel agent, focusing on the provision of holidays in northern Cyprus.
On 23 November 2006 an application was made on behalf of KTHY for a variation of its operating permit so as to allow it to carry passengers, baggage and cargo on scheduled services between the United Kingdom and northern Cyprus. On the same date an application was made on behalf of KTHY and CTA for an operating permit under Article 138 of the 2005 Order to allow them to operate specified charter flights between the United Kingdom and Ercan airport in northern Cyprus.
By letter dated 20 February 2007 the Secretary of State refused both applications. The appellants challenged the decision in proceedings for judicial review, in which the Secretary of State was defendant and the Republic of Cyprus (“the RoC”) appeared as an interested party. The claim was dismissed by Wyn Williams J, from whose order the appellants bring the present appeal.
In order to explain the issues in the appeal I need first to describe salient aspects of the political situation in the island of Cyprus, though I do not need to do so in the detail with which, understandably, it has been addressed by the parties in evidence. The judge dealt with it concisely and I am able to draw on his judgment for all I need at this stage.
The island of Cyprus
The RoC became an independent sovereign state on 16 August 1960. Its territory comprised the whole island of Cyprus with the exception of the two UK sovereign base areas.
On the same date the United Kingdom, Greece and Turkey were signatories (together with the RoC) to a Treaty of Guarantee by which, inter alia, they recognised and guaranteed the independence, territorial integrity and security of the RoC and “undertake to prohibit, so far as concerns them, any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island” (Article II).
Following the invasion of the island by Turkish troops in 1974, the island was divided along a “green line”, patrolled by a peace-keeping force, which separated the community in the north from that in the south. A joint declaration issued by Turkey, Greece and the United Kingdom on 30 July 1974 “noted the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot community and that of the Turkish Cypriot community”. On 13 February 1975 the Turkish Cypriots purported to establish the “Turkish Federated State of Cyprus” and enacted a constitution on the model of a separate state.
On 15 November 1983 the Turkish Cypriot authorities in the north declared an independent state called the Turkish Republic of Northern Cyprus (“the TRNC”). UN Security Council resolution 541 (1983) deplored the declaration and considered it legally invalid, and called upon all states to respect the sovereignty, independence, territorial integrity and non-alignment of the RoC. A further resolution, 550 (1984), called upon all states not to recognise the purported state of the TRNC. Neither the United Kingdom nor any other state with the exception of Turkey has recognised the TRNC.
In 2004, when the RoC acceded to the European Union, a protocol to the Act of Accession provided that “the application of the Acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control”.
The existing position was summarised as follows by the judge:
“22. The TRNC has never been recognised by any state except Turkey since its inception. Conversely, the Republic of Cyprus continues to enjoy international recognition ….
23. There is no doubt, as a matter of fact, that there exists in the TRNC an established government; it governs the area of Cyprus which is north of 'the green line'; it has done so continuously since 1983. Indeed, in his witness statement, Mr Garip says that Northern Cyprus and its population has been under the de facto control of an autonomous and fully functioning administration operated by Turkish Cypriots since 1974. As I have said, there currently exists a constitution which provides for an executive, a judiciary and a democratically elected legislature. The legislature has passed and continues to pass a body of civil and criminal law covering most aspects of normal living and trade and movement of persons, goods and services. Laws are administered and enforced by relevant officials, the police and the courts. Mr Garip points out that the Government of the United Kingdom has from time to time made use of the legal system which subsists in the Northern part of the island. For example, authorities in the United Kingdom have ensured that evidence is available in trials before the courts in Northern Cyprus.”
The judge went on to explain the arrangements operating in the north with regard to civil aviation, as set out in the uncontested evidence of Mr Garip, General Coordinator (Assistant General Manager) of KTHY:
“24. … There currently exists a Civil Aviation Department within a Ministry of Communications and Public Works with responsibility for the administering of civil aviation in Northern Cyprus. Aircraft and their operators in Northern Cyprus are required to comply with the Aeronautical Information Publication ('AIP') published by the Civil Aviation Department from time to time. Extracts from the publication are set out in Mr Garip's witness statement …; the AIP clearly seeks to follow the model of documents issued by the International Civil Aviation Organisation ('ICAO'). The airport at Ercan has been designated as a customs airport for the purposes of the Customs and Excise Law (Law no. 37/1983) enacted by the legislature in Northern Cyprus. Ercan was modernised and upgraded in 2003. It is apparently designed to comply with applicable ICAO standards in relation to airports.”
The issues
The primary reason for the Secretary of State's refusal of the operating permits sought was that the grant of the permits would be in breach of the rights of the RoC under the Convention on International Civil Aviation signed at Chicago on 7 December 1944 (“the Chicago Convention”). The United Kingdom, as a party to that convention, is under an obligation to respect those rights. It is common ground that the Secretary of State's discretion under Article 138 of the 2005 Order must be exercised in accordance with such obligations (see R v Secretary of State for Transport, ex p. Pegasus Holdings (London) Ltd [1988] 1 WLR 990, 1002–1003). Thus, the decision to refuse permits by reference to the United Kingdom's obligations under the convention gives rise to an issue which is justiciable as a matter of domestic law.
Wyn Williams J held that the grant of the permits sought would be in breach of the RoC's rights under the Chicago Convention and that this basis for the Secretary of State's decision was therefore correct in law. The appellants challenge that conclusion, essentially on the ground that the entitlement of the RoC to exercise its rights under the convention in relation to northern Cyprus has been suspended by reason of the fact that the RoC has lost effective control over that territory.
The Secretary of State has a further, more general basis on which he also seeks to support his decision. It flows from the fact that the United Kingdom, in accordance with its obligations under international law, has not recognised the TRNC as a state. It is said to follow as a matter of domestic law that decisions may not be made on the basis of, or by reference to, the purported laws and acts of the TRNC (save for laws and acts falling within a limited exception); and that to have granted the applications, thus approving international air services to and from airports in northern Cyprus, would inevitably have infringed this prohibition.
Wyn Williams J dealt obiter with that aspect of the case, again reaching a conclusion in favour of the Secretary of State. The appellants take issue with the judge's conclusion, contending that no rule of domestic law would be violated by the grant of the permits or by the court's upholding of the grant of the permits. The appellants contend in the alternative that the case falls within the limited exception acknowledged by the Secretary of State.
In addition to those substantive...
To continue reading
Request your trial
-
The Queen (on the application of Hasan Akarcay) v Chief Constable of the West Yorkshire Police Secretary of State for the Home Department (Interested Party) National Crime Agency (Interested Party)
...and Court of Appeal in R (Kibris Turk Hava Yolari and CTA Holidays Ltd) v Secretary of State for Transport [2009] EWHC 1918 (Admin); [2010] EWCA Civ 1093. The claimants were a Turkish airline and its subsidiary travel agent based in England. The latter arranged holidays in Northern Cyprus......
-
Smart Gain Shipping Company Ltd v Langlois Enterprises Ltd
...but that does not invalidate its findings: infelicities in a tribunal's expression must be treated with generous spirit: The Merida [2010] 1 Lloyd's Rep 274, [13]–[14], per Gross J (as he was), citing Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] EWHC 727 (TCC), [200......