R (on the application of Tag Eldin Ramadan Bashir and Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lady Hale,Lord Mance,Lord Reed,Lord Wilson,Lord Sumption,Lord Kerr,Baroness Hale of Richmond,Lord Kerr of Tonaghmore |
| Judgment Date | 30 July 2018 |
| Neutral Citation | [2018] UKSC 45 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2018 |
[2018] UKSC 45
Lady Hale, President
Lord Mance
Lord Kerr
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath
Appellant
James Eadie QC
Thomas Roe QC
Penelope Nevill
(Instructed by The Government Legal Department)
Respondents
Raza Husain QC
Tom Hickman
Edward Craven
Jason Pobjoy
(Instructed by Leigh Day)
Intervener (AIRE Centre) (Acting pro bono)
Michael Fordham QC
Katie O'Byrne
George Molyneaux
Natasha Simonsen
(Instructed by Allen & Overy LLP)
Heard on 18 and 19 December 2017
This is an interim judgment dealing with certain threshold issues on this appeal. It is final as to the issues covered, but interim in the sense that other issues will have to be decided before the appeal can be finally determined. The court regrets the delay in reaching a final disposal of this protracted and deeply troubling case. However, as will be explained, it has become apparent that some critical and difficult issues had not been clearly identified in the agreed statement of facts and issues, nor adequately covered by the written or oral submissions. In fairness to the parties, and to enable it to reach a fully informed conclusion, the court sees no alternative to inviting further submissions on the matters to be identified at the end of this judgment. It hopes that by giving its decision on the issues covered by this judgment, it will clear the way for more focussed discussion of the remaining points, and in particular on the interaction of international and domestic law in the context of the present judicial review proceedings against the Secretary of State.
The respondents are six refugees from various countries in North Africa and the Middle East. In October 1998, they boarded a ship in the Lebanon which was bound for Italy but which foundered off the coast of Cyprus. On 8 October, 75 passengers including the respondents were airlifted to safety by RAF helicopters and brought to Akrotiri in south Cyprus. It will be necessary to give a fuller account of the status of Akrotiri below, but for present purposes it is enough to say that Akrotiri in the south of the island, and Dhekelia on the eastern side of the island, are Sovereign Base Areas (“SBAs”) retained under United Kingdom sovereignty for the purpose of accommodating military bases, when the former colony of Cyprus was granted independence in 1960. The respondents have lived in highly unsatisfactory conditions in disused service accommodation in Richmond village in the Dhekelia (or eastern) SBA since shortly after their arrival in 1998.
The question at issue in this appeal is whether the respondents are entitled, or should be permitted, to be resettled in the United Kingdom. It is clear, and not seriously disputed, that the respondents have no right to entry into the United Kingdom under the Immigration Rules. The Secretary of State has a discretion to admit them outside the Rules, but his policy is not to exercise this discretion in favour of persons such as the respondents who have no existing connection with the United Kingdom. The basis of the respondents' case is that in the circumstances of the present case they are entitled to entry into the United Kingdom by virtue of their status as refugees protected by the United Nations Convention Relating to the Status of Refugees (1951), as modified by the Protocol Relating to the Status of Refugees (1967), or that in the exceptional circumstances of the case the Secretary of State should exercise his discretion to admit them.
As originally drawn, the Refugee Convention applied only to persons who became refugees as a result of events occurring before 1951, ie for the most part those displaced by the persecutions of the Axis powers and by military operations during and in the aftermath of the Second World War. The effect of the 1967 Protocol was to apply the principal provisions of the 1951 Convention to all refugees, irrespective of when the events occurred which caused them to leave their home countries. The United Kingdom was an original signatory of the Refugee Convention and ratified it on 11 March 1954. It acceded to the Protocol on 4 September 1968.
The Convention (as amended) confers a number of rights on persons who qualify as refugees in any territory of refuge in which they find themselves. These rights include the right to engage in remunerated work, the right to public services such as housing, public education and social security, generally on the same basis as other aliens lawfully present there, and the right not to be expelled save on grounds of national security or public order. It is not disputed that the respondents are refugees for these purposes. Between July 1999 and March 2000, all of them were declared by the Chief Control Officer of the SBAs to be “entitled to refugee status under the 1951 Convention and the 1967 Protocol”.
Neither party suggested that the Convention has been incorporated generally into the law of the United Kingdom, and plainly it has not been. The position was stated by Lord Bingham of Cornhill (with whom Lord Carswell agreed) in R v Asfaw (United Nations High Comr for Refugees intervening) [2008] AC 1061, para 29:
“The appellant sought to address this disparity by submitting that the Convention had been incorporated into our domestic law. Reliance was placed on observations of Lord Keith of Kinkel in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990G; Lord Steyn in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Comr for Refugees Intervening) [2005] 2 AC 1, paras 40–42; section 2 of the Asylum and Immigration Appeals Act 1993; and rule 328 of Statement of Changes in Immigration Rules (1994) (HC 395). It is plain from these authorities that the British regime for handling applications for asylum has been closely assimilated to the Convention model. But it is also plain (as I think) that the Convention as a whole has never been formally incorporated or given effect in domestic law …”
Lord Hope of Craighead expressed the same view at para 69. Lord Rodger of Earlsferry and Lord Mance dissented, but not on this point. It follows that the Convention as such confers no rights and imposes no duties as a matter of the domestic law of the United Kingdom.
The Convention is however given limited statutory effect in the domestic law of the United Kingdom for certain specific purposes, of which only one is relevant to the present appeal. Section 2 of the Asylum and Immigration Appeals Act 1993 provides that “nothing in the immigration rules … shall lay down any practice which would be contrary to the [Refugee] Convention.” It is therefore common ground that any decision regarding the entry of the respondents into the United Kingdom must be consistent with the Convention. Furthermore, as Foskett J recognised in the High Court ( [2016] 1 WLR 4613, para 322ff), a failure by the Secretary of State correctly to apply the Convention may have consequences in domestic public law, as under the so-called “ Launder principle” (following R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839, para 325 per Lord Hope; see also R (Corner House Research) v Director of the Serious Fraud Office [2009] 1 AC 756).
Britain occupied Cyprus between 1878 and 1960. As with Britain's other Mediterranean colonies, Gibraltar and Malta, the value of Cyprus to Britain was always strategic and military, not economic. The island sits across the main sea routes to the Suez Canal and the Levant. It had been governed for three centuries as part of the Ottoman Empire. After the defeat of Turkey in the Russo-Turkish war of 1877–8, Britain entered into a military alliance with Turkey under which she undertook to defend Turkey by force of arms against any future Russian attack. In return, Turkey, while retaining sovereignty over the island, ceded it to be “occupied and administered” by Britain “in order to enable England to make necessary provision for executing her engagement”: article 1 of the Cyprus Convention, 4 June 1878. Under an Order in Council dated 1 October 1878, administration of the island was vested in a High Commissioner, whose functions were to be exercised ex officio by the Commander in Chief of the British forces stationed there. These arrangements subsisted until 1914, when Turkey entered the First World War on the German side, and the Anglo-Turkish Convention lapsed. Cyprus was thereupon annexed to the British Empire by Order in Council: Cyprus (Annexation) Order 1914 SR&O 1914/1629. The annexation was recognised by Turkey after the war by the treaty of Lausanne (1923). The island played a modest part in British military operations in the middle east in both world wars, but its strategic significance has increased since then. The SBAs are currently the only significant British strategic assets in the eastern Mediterranean.
The Refugee Convention contains a “colonial clause” in the following terms:
“Article 40
TERRITORIAL APPLICATION CLAUSE
1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of...
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