R (on the application of Tag Eldin Ramadan Bashir & Others) (Appellants/Cross-Respondents) v Secretary of State for the Home Department (Respondent/Cross-Appellant) Sovereign Base Area Authority (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice Briggs,Lord Justice Jackson |
| Judgment Date | 25 May 2017 |
| Neutral Citation | [2017] EWCA Civ 397 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2017 |
| Docket Number | Case No: C4/2016/2334 and C4/2016/2403 |
[2017] EWCA Civ 397
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Foskett
[2016] EWHC 954 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Briggs
and
Lord Justice Irwin
Case No: C4/2016/2334 and C4/2016/2403
and
Raza Husain QC, Tom Hickman, Edward CravenandJason Pobjoy (instructed by Leigh Day) for the Appellants
Thomas Roe QC and Penelope Nevill (instructed by Government Legal Department) for the Respondent
Hearing dates: 17, 18, 19 January 2017
Judgment Approved
Introduction
The Claimants are six heads of household representing a group of refugees resident in one of the British Sovereign Base Areas ["SBAs"] in Cyprus. The appeal and cross-appeal arise from the judgment of Foskett J given on 28 April 2016, reported as R (Bashir and others) v Secretary of State for the Home Department [2016] 1 WLR 4613. For clarity, I will refer to the parties as Claimants and Defendant.
In 1998 the Claimants were rescued from a dangerous Lebanese fishing boat in the Mediterranean. They were intending to go to Italy, but were taken to one of the SBAs in Cyprus. The Claimants and their families have (with very limited exceptions) now lived in former forces' accommodation known as Richmond Village in the Dhekelia SBA for many years. Although the Defendant has for long accepted the Claimants to be refugees within the meaning of the Refugee Convention, there has been a very extended dispute as to the rights and obligations flowing from that status, as to whether the United Kingdom owes these obligations, and in particular as to whether they must be permitted to move to the United Kingdom.
On 25 November 2014, the Secretary of State refused the Claimants admission to the United Kingdom. It was said the Claimants had no strong ties to the United Kingdom, and there were "no reasons for treating them exceptionally". Relocation of the Claimants from the SBAs to the Republic of Cyprus was a "demonstrably durable … decision". This letter of refusal evidences the decision challenged. Foskett J quashed this decision on the basis that it had been taken without considering the views of the UNHCR, expressed in their letter of September 2013, that re-settlement in the Republic of Cyprus was no longer "a desirable or practical option". It is this conclusion that is the subject of the Defendant's cross-appeal.
Much of the dispute turns on the particular factual and legal position of the SBAs. It is agreed that the accommodation in Richmond Village is very dilapidated and indeed hazardous. Both sides agree that the Claimants and their families should leave. However, put very broadly, the Defendant's position is that the United Nations Convention relating to the Status of Refugees (1951) does not extend to the SBAs. Nor does the European Union Charter of Fundamental Rights. Hence, says the Defendant, she does not owe the refugees the obligations which would arise if those instruments did apply.
Moreover, the Defendant has, she says, made arrangements with the Republic of Cyprus which are in fact suitable for the Claimants and their families, and which would satisfy the obligations (or at least the "spirit" of the obligations) under the Refugee Convention, if the Convention did apply. The Defendant argues that the Claimants and their families have no right, whatever legal basis is invoked, to move to live in Britain.
The Claimants argue that the Refugee Convention does extend to the SBAs in Cyprus, and that the United Kingdom owes them the full suite of obligations arising under the Convention. Since those obligations cannot be discharged within the SBAs, the consequence is they must be permitted to migrate to Britain where the obligations can be discharged. The Claimants say that the arrangements made with the Republic of Cyprus do not divest the United Kingdom of its legal responsibilities to them, and are in any event uncertain, unreliable and unacceptable to them. The Claimants argue that, even were the Refugee Convention held not to apply directly to them, identical or similar obligations (necessitating the same outcome) arise, because the Defendant took critical decisions intending conformity with the obligations under the Refugee Convention and cannot now depart from that. Alternatively, the European Charter applies, with the same effect. As a further alternative, if the Defendant fails to treat the Claimants as she would refugees in another British Overseas Territory ["BOT"], that would represent unlawful discrimination against the Claimants and their families.
The principal issues in the case are whether the Refugee Convention applies, and if so, whether that requires the Defendant to permit the refugees to move to Britain.
In his careful and elegantly expressed judgment, Foskett J analysed the facts exhaustively. I do not intend for the most part to rehearse the detailed facts again, and will only do so to address matters of controversy.
The judge concluded that since the UK government has said throughout that it would treat those assessed to be refugees, including these Claimants, in accordance at least with "the spirit" of the Refugee Convention, the Defendant has acquired obligations to the Claimants pursuant to the " Launder" principle, laid down in R v SSHD, ex parte Launder [1997] 1 WLR 839, as approved in R v DPP, ex parte Kebilene [2000] 2 AC 326. However, it is not clear that he considered there was any breach of this obligation.
The judge did conclude that the relevant decision was flawed since it was taken without due consideration of representations made to the Defendant by the UNHCR in a letter of September 2013. The Defendant cross-appeals against that conclusion in the Court below.
The Grounds of Appeal are in substance as follows:
Ground 1(a): Does the Refugee Convention apply as a matter of public international law?
Ground 1(b): Does the Refugee Convention apply by virtue of the principle in Launder?
Ground 1(c): Does the Refugee Convention apply as a matter of EU Law?
Ground 2: Did the decision of 25 November 2014 breach Articles 26, 32 and 34 of the Refugee Convention?
Ground 3: Did the decision of 25 November 2014 breach Article 14 of the ECHR?
The Ground of cross-appeal is that the judge was in error in holding that the decision of 25 November 2014 was vitiated because the Defendant failed to address the view of UNHCR that relocation of the Claimants to the Republic of Cyprus was no longer "a desirable option".
Does the Refugee Convention apply to the SBAs as a matter of public international law?
Foskett J concluded that the Refugee Convention does not apply: see the judgment at paragraphs 181 to 260. In addressing this issue I make reference to some of the passages in the judgment without incorporating them here.
I note that the Defendant argues that this issue was not open for argument by the Claimants. Rather, they were or should be prevented from advancing their case on this issue, because they did so unsuccessfully in litigation before the Courts of the SBAs in 2011; thus they are estopped per rem judicatam from raising the matter again. As Mr Roe QC for the Defendant observed in the course of argument, properly speaking estoppel is a prior question to the substantive issue. However, in common with the parties, I address the substantive issue first, since at least in some measure that approach makes the estoppel point easier to analyse. At this stage I merely indicate that I am against the Defendant on estoppel.
After a period of British administration of the island, Cyprus became a British Colony by annexation in 1914, a status confirmed in the treaty of Lausanne soon after the First World War. Cyprus remained a colony until 1960.
The United Kingdom signed the Refugee Convention in 1951, ratified it in 1954, and in October 1956 made a formal declaration pursuant to Article 40(1) that the Convention was extended, inter alia, to the colony of Cyprus, taking effect from 23 January 1957. There is therefore no question but that the Refugee Convention applied to Cyprus, including the territory subsequently comprised by the SBAs, whilst Cyprus remained a British colony. The first issue under consideration turns on whether that application survived the creation of the Republic of Cyprus, the exclusion of the SBAs from the territory of the new Republic and the maintenance of British sovereignty over the SBAs.
In approaching the factual analysis which follows, it is well to have in mind the legal approach to this question, to which I return at greater length below. In R (Bancoult) v SSFCA (No 2) [2008] UKHL 61, [2009] 1 AC 453, Lord Hofmann observed that the key question as to whether an existing extension (in that instance of a different Convention) survived constitutional change to a colony, was whether or not the change in question represented the creation of a "new political entity". That formulation was agreed in that case by those of their Lordships who expressed a view. With that test in mind, the question here is whether the SBAs constitute a "new political entity".
The general political history of Cyprus is well-known, if complex. Before independence in 1960, the island was already the scene of tension between Greek and Turkish Cypriots. The Greek and Turkish governments, as well as the Cypriot authorities, were involved in the negotiations that led to the independence settlement. The two major military bases, Akrotiri in the south and Dhekelia...
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