INTERIM JUDGMENT
R (on the application of Tag Eldin Ramadan Bashir
and others) (Respondents) v Secretary of State for
the Home Department (Appellant)
before
Lady Hale, President
Lord Mance
Lord Kerr
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
30 July 2018
Heard on 18 and 19 December 2017
Appellant Respondents
James Eadie QC Raza Husain QC
Thomas Roe QC Tom Hickman
Penelope Nevill Edward Craven
Jason Pobjoy
(Instructed by The
Government Legal
Department
)
(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
)
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JOINT INTERIM JUDGMENT OF THE COURT:
Introduction
1. 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 Main Issue
2. 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.
3. 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
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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.
The Refugee Convention
4. 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.
5. 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”.
6. 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).
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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.
7. 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).
Cyprus and the Sovereign Base Areas
8. 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
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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.
9. 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 the territories for the international relations of which it
is responsible. Such a declaration shall take effect when the
Convention enters into force for the State concerned.
2. At any time thereafter any such extension shall be made
by notification addressed to the Secretary-General of the
United Nations and shall take effect as from the ninetieth day
after the day of receipt by the Secretary-General of the United
Nations of this notification, or as from the date of entry into
force of the Convention for the State concerned, whichever is
the later.
3. With respect to those territories to which this
Convention is not extended at the time of signature, ratification
or accession, each State concerned shall consider the possibility
of taking the necessary steps in order to extend the application
of this Convention to such territories, subject, where necessary
for constitutional reasons, to the consent of the Governments
of such territories.”
10. On 24 October 1956 the United Kingdom notified the Secretary-General
under article 40(2) that, subject to certain reservations, the Convention would be
extended to 16 territories for whose international relations it was responsible,
including “Cyprus”. It is common ground that the effect was to apply the
Convention, as a matter of international law, to the whole island, including those
parts of it which later became the SBAs.
11. Cyprus became independent in 1960 as part of an international settlement
between the United Kingdom, Turkey and Greece. Under these arrangements, it
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became an independent republic, but there were excluded from its territory the two
SBAs, together comprising 98 square miles (about 3% of the surface of the island),
which were retained under United Kingdom sovereignty. The SBAs comprise a
number of important military facilities including, in the western SBA, a major RAF
base at Akrotiri, and in the eastern SBA an army base at Dhekelia and a signals
station at Ayios Nicolaos. But their geographical area extends well beyond the bases
themselves and they support a substantial civilian population. The population of the
SBAs currently comprises a transient population of British military personnel and
civilian staff employed on defence-related work, who have access to health,
educational, recreational and other facilities provided by the Ministry of Defence;
and about 10,000 permanent residents, almost all of them Cypriot nationals, who
occupy the land outside the bases themselves, pay taxes to the Republic of Cyprus,
vote in its elections and are entitled to services from the Republic in the same way
as if they resided in its territory.
12. Legally, these changes were achieved by a number of instruments:
i) Section 1 of the Cyprus Act, enacted on 29 July 1960, provided that
on a date to be appointed by Order in Council, there should be “established
in the Island of Cyprus” an independent sovereign republic. Section 2
provided that its territory should comprise “the entirety of the Island of
Cyprus with the exception of [the Sovereign Base Areas]” defined by
designated maps with exact boundaries to be fixed by a Boundary
Commission. An Order in Council subsequently fixed the appointed day as
16 August 1960: Republic of Cyprus Order (SI 1960/1368).
ii) On 16 August 1960, a treaty was signed between the United Kingdom,
Greece, Turkey and the new Republic of Cyprus. Article 1 of the treaty
recognised the territory of the Republic as comprising the island with the
exception of the SBAs.
iii) On the same date, there was an exchange of notes between the United
Kingdom and the Republic of Cyprus, which is annexed to the treaty and
known as “Appendix O”. The British note transmitted a declaration by the
United Kingdom government concerning the administration of the SBAs, and
stated the United Kingdom’s determination to “create a continuous and
lasting system of administration in the Sovereign Base Areas founded on
close co-operation between the authorities of those areas and the authorities
of the Republic of Cyprus.” Article 1 of the declaration declared that the main
object to be achieved was the effective use of the SBAs as military bases, full
co-operation with the Republic of Cyprus and protection of the interests of
those residing or working in the SBAs. By article 2, the United Kingdom
government declared its intention to observe certain limits on the nonmilitary use of the SBAs. In particular, its intention was:
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“(I) Not to develop the Sovereign Base Areas for other than
military purposes.
(II) Not to set up and administer ‘colonies’.
…
(VI) Not to allow new settlement of people in the Sovereign
Base Areas other than for temporary purposes.”
13. The Cypriot note took “due note” of the above. On the same date (16 August
1960), the Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960
(SI 1960/1369) came into force. It made arrangements for the administration of the
SBAs by an Administrator, who was to be a serving officer of HM Forces and is in
practice the Commander of British Forces Cyprus. The Administrator was to have
extensive executive and legislative powers. Subject to any repeal or modification by
the Administrator, article 5 provided that any existing law should continue to have
effect in the SBAs. For this purpose, an “existing law” meant
“any law enacted by any authority established for the Island of
Cyprus, any Instrument made under such a law, and any rule of
law, which is in force in the Sovereign Base Areas or any part
thereof immediately before the date of commencement of this
Order.”
Refugees in Cyprus
14. In 1963 the Republic of Cyprus notified the Secretary-General that it had
succeeded to the Convention. In 1968 it acceded to the Protocol. No notification has
ever been made by the United Kingdom specifically in relation to the SBAs. The
Secretary of State’s position in these proceedings has been that the Convention does
not apply in the SBAs. But the declared policy of the United Kingdom is that even
in those dependent territories where the Refugee Convention does not apply, as in
Hong Kong before 1997, it will nevertheless apply the “spirit” of the Convention to
genuine refugees. The result is a practical, although not (it is said) a legal
consistency of approach between the Republic of Cyprus and the administration of
the SBAs.
15. Refugees became a significant issue in Cyprus and the SBAs as a result of
disturbances in the Middle East in the 1990s. They began to appear in substantial
numbers in the Republic and in more limited numbers in the SBAs. It appears to be
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common ground, but is in any event clear, that the facilities currently available
within the SBAs do not enable refugees to be supported there. There are few if any
prospects of employment, no educational, health or other publicly provided facilities
to which refugees have access, and limited and unsatisfactory housing provision.
16. As a result, the arrival of the respondents and other shipwrecked passengers
in the SBAs in October 1998, followed by further arrivals in 2000 and 2001, gave
rise to argument between the SBA Administration and the authorities in the Republic
of Cyprus about which of them was to be responsible for the refugees and asylumseekers among them. These arguments were apparently resolved, at least for future
arrivals, when, on 20 February 2003 the United Kingdom and the Republic entered
into a Memorandum of Understanding relating to “illegal migrants and asylum
seekers” in the SBAs. The Memorandum recited the following:
“In view of the full co-operation between the Governments of
the Republic of Cyprus and the United Kingdom envisaged in
the Exchange of Notes between the Government of the United
Kingdom and the Government of the Republic of Cyprus
concerning the administration of the Sovereign Base Areas,
dated 16 August 1960, and the attached Declaration by the
Government of the United Kingdom;
Emphasising the importance of the international obligations of
the Governments of the United Kingdom and the Republic of
Cyprus with regard to asylum seekers, including the
prohibition on indirect refoulement;
Bearing in mind humanitarian considerations, such as those
reflected in the 1951 Convention relating to the Status of
Refugees, and the need for the Republic of Cyprus and the
United Kingdom to work together with a view to devising
practical ways and means of respecting the rights and satisfying
the needs of asylum seekers and illegal migrants in the
Sovereign Base Areas;
In light of the fact that the Government of the United Kingdom
has committed itself not to develop the Sovereign Base Areas
for other than military purposes and, in particular, not to allow
new settlement of people in the Sovereign Base Areas other
than for temporary purposes.”
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17. The agreement which followed provided, in summary, for the full range of
governmental services to be provided to refugees by the Republic, but at the expense
of the United Kingdom. The relevant provisions are as follows:
“1. For the purpose of this Memorandum of Understanding
an asylum seeker is any person seeking international protection
under the 1951 Convention relating to the Status of Refugees
and the 1967 Protocol, or the European Convention on Human
Rights or the United Nations Convention Against Torture
1984.
…
8. Asylum seekers arriving directly in the Sovereign Base
Areas may move freely throughout the island of Cyprus and
have the right to opt to stay outside the Sovereign Base Areas,
subject to any requirements imposed upon aliens by the
relevant laws of the Republic. The government of the Republic
of Cyprus reserves the right to refuse entry to, or return, an
asylum seeker for reasons of national security or on grounds of
public policy.
9. Subject to paragraph 13, the Government of the
Republic of Cyprus will grant the following benefits to asylum
seekers arriving directly in the Sovereign Base Areas:
(a) Free medical care in case they lack the necessary
means;
(b) Welfare benefits equivalent to those given to the
citizens of the Republic of Cyprus;
(c) The right to apply for a work permit in
accordance with the relevant laws of the Republic of
Cyprus;
(d) Access to education.
10. Subject to paragraph 13, during their stay on the island
of Cyprus persons recognised as refugees or granted any other
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form of international protection under the procedures
determined in this Memorandum, will be treated so far as the
authorities of the Republic of Cyprus are concerned, as if such
persons had been recognised as refugees or granted another
form of international protection by the Republic of Cyprus.
…
12. The United Kingdom, through the [SBA]
Administration, will endeavour to resettle persons recognised
as refugees … in countries willing to accept those persons, not
later than one year after the decision granting the relevant status
has been taken. The joint consultative body established in
paragraph 16 of this Memorandum will regularly review the
progress made with this programme.
13. The United Kingdom will indemnify the Republic of
Cyprus for the net costs incurred in giving effect to paragraphs
7, 8, 9 and 10 excluding costs in respect of those who first
entered the island of Cyprus other than directly by the
Sovereign Base Areas.
…
18. This Memorandum of Understanding may be terminated
at any time by the mutual written consent of both Participants
or by either Participant giving not less than three (3) months
prior notice in writing to the other Participant.
19. Any dispute about the interpretation of this
Memorandum will be resolved by consultations between the
Participants.”
18. Under paragraph 20 of the Memorandum, paras 7-10, 13 and 14 were to come
into effect on the date of the accession of Cyprus to the European Union, in the event
1 May 2004. The authorities of the Republic of Cyprus took the position that the
Memorandum did not apply to refugees such as the respondents who had already
arrived in the SBAs before that date. The Secretary of State’s case, however, is that
it was agreed between the Cypriot authorities and the SBA Administration in 2005
that it would deal with refugees recognised as such by the SBA Administration in
accordance with the Memorandum of Understanding, irrespective of the date of their
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arrival in the SBAs. This agreement has never been recorded in writing, but evidence
of it is given by Ms Lisa Young, the then Policy Secretary of the SBA Administrator,
and there is documentary and other material supporting its existence and the effect
claimed for it. We shall consider this further later in this judgment.
19. Shortly after the Memorandum of Understanding of 2003 was agreed, the
Administrator of the SBAs enacted the Refugees Ordinance 2003. The Ordinance
has been radically amended since it was first enacted, without, however, altering its
essential tenor. Section 4 and Part 4 of the Ordinance gave effect within the SBAs
to rights substantially corresponding to those conferred on refugees by the
Convention, including in particular rights to public relief and assistance, social
security, free education and the right to engage in paid employment: see section 23.
Section 23(2) provided:
“The rights given to a refugee or asylum-seeker under this
Ordinance shall be treated as having been properly accorded to
him whether they are accorded to him by the relevant
authorities of the Areas or the Republican authorities and
whether they are to be enjoyed in the Areas or in the Republic.”
20. In September 2011 in judicial review proceedings between certain refugees
in the SBAs (including some of the respondents) and the SBA Administrator and
the Secretary of State for Defence, the Senior Judges’ Court, which serves as the
Court of Appeal for the SBAs, held that the Refugees Ordinance did not apply to
those who were recognised as refugees before it was made: Bashir v Administrator
of the Sovereign Base Areas of Akrotiri and Dhekelia and Secretary of State for
Defence Appeal No 1 of 2011, 13 September 2011. The correctness of that view has
not been challenged in these proceedings. Appeal lies from the Senior Judges’ Court
to the Privy Council, but there was no appeal from this decision.
The factual background relating to the respondents
21. Foskett J’s judgment contains an extensive narrative of the facts, which
provides a valuable starting point for analysis. It must, however, be borne in mind
that the issues between the parties have broadened in the course of the proceedings,
partly because not all of the legal problems raised by the appeals were appreciated
at the time of the trial, and partly because of the much broader basis on which the
Secretary of State sought to justify her refusal to admit the respondents to the United
Kingdom in her second decision of July 2017. As a result, Foskett J’s findings may
not constitute a complete statement of the facts relevant to the issues that now
separate the parties. It is unnecessary for present purposes to do more than refer to
some of the main points in the history. (Where relevant we give paragraph references
to the “HC” judgment.)
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From 1998-2002
22. We have already mentioned the circumstances in which the respondents and
their families arrived in the SBAs in October 1998. Their accommodation since 2000
is described in the agreed statement of facts in the following terms:
“Since May 2000 the respondents have been housed in disused
military accommodation in Richmond Village in the Dhekelia
SBA. That accommodation, which was due to be demolished
in 1999, ‘is no longer regarded as truly habitable’ and there is
an ‘urgent need for a move of location to take place’ (HC 74).
There are health concerns raised by the fact that asbestos in
‘potentially harmful quantities and form’ (HC 146) has been
discovered in all of the accommodation.”
It is common ground, as Irwin LJ said in the Court of Appeal (para 84) that their
present conditions are “quite unacceptable”. The dispute is as to the extent to which,
if at all, the SBA Administration or the UK government bears responsibility for that
state of affairs.
23. Between July 1999 and March 2000, each of the respondents was declared to
be “entitled to refugee status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees”, by orders made by the Chief Control Officer of
the SBAs. The judge described in detail the extensive exchanges between the SBA
Administration and officials in London as to how they should be dealt with, given
the recognised impossibility of meeting the Convention obligations within the
SBAs, and the unwillingness of the Republic at that time to assist in any way.
24. At official level, there was a view that resettlement in the UK might be
necessary. The judge quoted a letter from a Ministry of Defence official to the Home
Office dated 22 December 1999 (HC 76):
“We have exhausted all the options that we thought were open
to us. The refugees are the responsibility of the UK
Government, but we have no means of discharging that
responsibility while they remain in the Sovereign Base Areas.
We frankly see no realistic alternative to their resettlement in
the UK …” (Judge’s emphasis)
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The judge added (HC 77):
“77. That same letter referred to the fact that the RoC was
unprepared to accept responsibility for the those who might be
assessed as ‘refugees’, that the UNHCR was not ‘prepared to
help with resettlement’ because its view was that it was ‘solely
the responsibility of the UK’ and that attempts to engage with
the Canadian and US resettlement schemes had been rejected
also.”
25. However, suggestions that they should be allowed to come to the UK met an
unsympathetic response from Ministers. Thus, the judge noted (HC 86) a
memorandum to the Minister for Europe dated 28 June 2001, which recorded that
relocating them to the UK was not “attractive to the Home Office and MoD
Ministers have already objected to this approach”, but noted that re-settlement in a
third country was unlikely to be realistic and that “[the] Cyprus government will not
take them on.” The “preferred option” proposed to the Minister was relocation to
the UK, but the Minister responded in a hand-written note: “I will not support
relocation to the UK. This is not on politically” (HC 86). To similar effect, in
February 2002 a request from the SBA Authority (“SBAA”) seeking formal
guidance, attracted a handwritten note, apparently by an MOD official:
“… no answer is at hand. Yes they should be let into the UK,
but ministers have said ‘no’.” (HC 94-95)
26. Concern about the situation of refugees in the SBAs was expressed by the
UNHCR in a letter to the Permanent Representatives of Cyprus and the UK dated
13 June 2001 (HC 90). The then view of the Foreign and Commonwealth Office of
the legal merits appears from an internal note (HC 91) prepared for a meeting of the
Permanent Representatives and the UNHCR in November 2001, suggesting the line
to adopt:
“Ministers decided in early 1999 that asylum seekers arriving
in the SBAs should be treated in accordance with the UN
Convention on Refugees, even though the Convention does not
apply in the SBAs …
But strong reasons for the UK not allowing either the refugees
or those that failed RSD permission to settle in the UK. Doing
so would increase the attractiveness of the SBAs as a
destination for asylum seekers … and it would be politically
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untenable given continuing public concern at the number of
asylum seekers entering the UK.”
The involvement of the Republic – 2002-2013
27. Faced with the political objections to resettlement in the UK, the
government’s strategy in 2002, agreed apparently at Cabinet level, seems to have
been to use the desire of Cyprus to become a member of the EU as “leverage” to
secure an acceptable agreement on the treatment of all the refugees and other asylum
seekers, existing and future (HC 99-101). Early drafts included provision for those
already granted refugee status in the SBAs. However, the Republic was “adamant”
that existing asylum seekers in the SBAs should be dealt with separately from future
arrivals. Accordingly, the final form of the agreement was prospective, applying
only to future arrivals. As already discussed, the 2003 Memorandum, concluded on
20 February 2003, was implemented in the SBAs by the Refugees Ordinance 2003,
and took effect on 1 May 2004, the date of accession of Cyprus to the EU.
28. So far as appears from the judgment, there is no record of any further
consideration at UK government level at that time of those existing refugees
excluded from the Memorandum. The only formal statement of the government’s
position in this period, in the papers before this court (though not mentioned by the
judge), is in a letter from the FCO to the UNHCR dated 23 May 2005 [MS 1509]. It
confirmed their view that the Convention did not in law apply to the SBA, and that
it was inappropriate to extend the Convention to the SBAs because of their “nature
and size”, and the prohibition on new settlements in the 1960 Treaty of
Establishment. The letter referred to the 2003 Memorandum as providing detailed
arrangements to ensure “appropriate assistance” by the Republic for refugees
arriving directly into the SBAs. There was no reference to those already in the SBAs
as refugees, such as the respondents.
29. The next event of substance seems to have been in autumn 2004, when there
began discussions between SBA officials and the Migration Department of the
Republic (HC114-119). A meeting was held on 27 September 2004, followed by a
letter from Mr Stainton, Administrative Secretary of the SBAA, dated 17 November
2004. This recorded that the Republic would “assume responsibility for the 66
individuals who had entered the SBAs directly”, and that the SBAA had also agreed
to pay the costs as identified at the September meeting. There was no reply to that
letter, but there was a further meeting between the SBAA and Republic officials on
28 January 2005, at which there was discussion of arrangements in relation to
welfare payments, medical matters, education, housing, work and residence, and a
fixed date for the transfer of responsibility.
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30. There is no written record of the actual agreement or understanding, nor of
its precise content or even of its date. However, from about September 2005, it was
treated by the local administration as a basis for stronger action to encourage the
remaining refugees to transfer to the Republic. The judge referred to the closure of
the school in September 2005 with the destruction of the playground, and the
withdrawal of medical facilities, as confirmed in a memorandum from the then
Fiscal Officer, Mr Pitts, dated 23 September 2005 (HC 123). Mr Pitts described the
agreement as being:
“… for all residents of Richmond Village … to be transferred
to the administration of the RoC and for each person to be
provided with the opportunity to have their individual claim
considered.”
The judge accepted that documentation issued thereafter, to some at least of the
refugees, indicated recognition by the Republic authorities “that they had
obligations towards the claimants which hitherto had been denied” (HC 131).
31. The judge also described the efforts to draw the agreement to the attention of
the refugees, and their immediate response, as recorded in the evidence of Mr Bashir
(HC 120-121). He spoke of a meeting on 28 January 2005 at Richmond Village with
the UNHCR and the SBAA Fiscal Officer Mr Jim Smart. Mr Smart told them of “a
new agreement which would change (their) situation and that (they) could be
recognised as refugees in the Republic of Cyprus if (they) made an application to
the Cypriot authorities”. In response to questions why they had to make new
applications when they had already been recognized as refugees, they were told of
“assurances” that the Republic “would recognise us and give us rights”; but that they
would need to reside in the Republic for a further seven years to be able to apply for
citizenship, and that the years spent living in the SBAs would not count.
32. The residents’ response was that they did not want to apply to the Republic
and they would not move there, for a number of reasons:
“First of all, we were aware that the Cypriot Government had
denied responsibility for us in 1998: The minister at the time
made a public statement that we were the responsibility of the
SBA and the UK. Secondly, for all the years we had lived in
the SBA most of us at one time or another had been subjected
to ill treatment from the Cypriot police and the Cypriot
immigration authorities. … Thirdly many of us were, and still
are, afraid that we would be deported back to our countries of
origin if we agreed to become the responsibility of the Republic
of Cyprus. … Fourthly, we had already been living in limbo
Page 16
since our arrival on the SBAs and we were not the
responsibility of the Republic of Cyprus, we were and are the
responsibility of the UK who should have done more to assist
us.”
We would observe that the reasonableness or otherwise of that response has been at
the heart of the dispute ever since. Sadly, it evidences the existence of something of
a stand-off between the SBA authorities and the refugees which has in some measure
continued until today – regarded by the authorities as due to obstinate noncooperation by the refugees, and by them as legitimate insistence on the discharge
of the duties for which the UK, not the Republic, was responsible.
33. However, as the judge recorded (HC 128), notwithstanding this resistance, a
number of the claimants did seek paperwork promised under the agreement. In fact,
it appears that all but one did this. The Republic registered them as refugees for the
purposes of their domestic legislation, thereby recognising their entitlement to the
support provided for by the Refugee Convention. The evidence of Mr Gondelle is
that the SBAA made payments to the Republic on this basis under paragraph 13 of
the Memorandum. Mr Bashir himself says that the Republic gave him and “most of
the refugee families” Cypriot documentation, including an alien registration
certificate, a temporary residence permit, a medical card for him and his family, a
travel document and a work permit. Further, as their witness statements show, the
respondents have made extensive use of the facilities provided by the Republic
under the MoU. The lead claimant, Mr Bashir, is a good example. He declines to
move from the SBA to the RoC, but he met his current wife while working in the
RoC; they were married in the RoC and their children were born there and go to
school there.
34. The absence of any written record of the agreement was later confirmed by
Mr Stainton, the SBA Administrator. The judge (HC 138) referred to a note by him
in October 2006 of a meeting earlier that month, attended by representatives of the
Republic Asylum Service and the UNHCR, at which the Asylum Service had
confirmed their intention to “honour their commitments under the Memorandum”
and “more importantly that they will apply it retrospectively to those who arrived in
Cyprus via Akrotiri in 1998 …”. This was seen by him as important because –
“… there is no written agreement that they will other than an
exchange of letters agreeing the sum of money the SBAA will
pay for each applicant and family member.” (HC 138)
35. Mr Stainton also recorded that he intended to cease welfare payments for
those who had not registered with the RoC from 31 January 2007, followed by
eviction proceedings from the village. This intention was carried into effect and led
Page 17
to a demonstration which went on for some weeks until (in Mr Bashir’s words,
quoted by the judge) “around March 2007 the SBAA backed down [and] stated that
they were not going to evict us or cut our weekly payments. They also agreed to
issue us new travel documents …” (HC 140).
36. The subsequent progress of the informal agreement was described by the
judge as “chequered” (HC 373). Mr Gondelle, who became the SBAA
Administrative Secretary in August 2008, said in evidence to the SBA courts that
there were records of payments made to the Republic in respect of families
recognised as refugees, but that to the best of his knowledge, the Republic had not
yet given “full practical effect” to the agreement, and that its implementation in
practice “[had] not been straightforward”. By the time of his involvement in 2008,
it was “uncertain whether the RoC [was] still willing in principle to abide by the
Agreement” (HC 142). The judge went further, finding in the evidence “a clear
indication” from the RoC in 2008 that it was not prepared to adhere to the “informal
understanding” that the 2003 Memorandum would be applied to the refugees,
although the respondents were not aware of this at the time (HC 144-145).
37. The next event of significance came in February 2009, following the
discovery of asbestos in some of the properties in Richmond Village. Mr Gondelle
prepared a minute with a view to inviting Ministerial approval to permit all existing
residents in Richmond Village to move to the UK (HC 147-148). The minute
indicated that Home Office officials were supportive, and attached a letter to the
relevant Minister. As the judge observed (HC 151), the minute made reference to
the 2003 Memorandum, but none to the 2005 agreement; instead it noted that the
Republic was “reluctant to provide assistance of any nature to the SBA” because it
considered that “the British military should end their presence in the SBAs and
return the land to the RoC”.
38. The recommendation was not accepted. At a meeting of the relevant
Ministers in June 2009, the joint view was that “bringing them to the UK was not a
desirable option”. Instead authorisation was given for a “carrot and stick approach”,
which involved the SBA paying for rented accommodation in the Republic for an
initial period while simultaneously evicting the refugees from their current housing,
and discontinuing welfare payments. In an email dated 16 December 2009 Mr
Gondelle noted that the Home Office, while recognising the “complexities of the
situation” and that entry to the UK might ultimately be necessary, was unwilling to
authorise “a significant departure” from its current policy without “first exploring
the alternatives”. The SBA Administration remained “convinced that entry to the
UK will ultimately prove to be the only solution …” (HC 152-154).
39. Attempts to implement the new “carrot and stick” approach were impeded by
judicial review proceedings in the SBA courts, commenced in April 2010 (HC 160).
The Senior Judges’ Appeal Court, in a judgment given on 13 September 2011, held
Page 18
that the Convention did not apply to the SBA. As already noted, there was no appeal
to the Privy Council.
40. In the course of those proceedings the respondents’ solicitor had written to
the Republic’s Ministry for Foreign Affairs asking about the “agreement to resettle”
the refugees, on which the SBA authorities were relying. The reply dated 18 June
2010 stated (as translated from the Greek):
“… there is no written agreement with the United Kingdom as
regards case of your customers. The Republic of Cyprus had
merely accepted to implement commensurately the relevant
Memorandum of Understanding between the Republic of
Cyprus and the United Kingdom in certain cases which concern
persons that had arrived in Cyprus before the date of its entry
into force.”
The judge observed that this appeared to be “the only document emanating from the
[Republic] in which the existence of the 2005 understanding is mentioned” (HC 161-
162).
41. However, in the course of his evidence put before the Senior Judges’ Appeal
Court, Mr Gondelle confirmed that since 2008 he and his staff had had many
meetings with the Republic’s Asylum Service and Ministry of Foreign Affairs,
during which it had indicated its willingness to cooperate, even though the effect
“appears to have not always reached other departments”, that during his last meeting
with the Director of the Republic’s Civil Registry and Migration Department, in late
2009, she had confirmed arrangements were in place to ensure that recognised
refugees would receive welfare benefits from the Republic and that it was only after
these assurances that SBA benefits had been withdrawn. Although free transport and
the assistance of SBAA officials was offered to the respondents in March 2010 to
take up such benefits, this offer was rejected by all of them.
42. The UK government’s understanding of the position as at the end of 2011
appears from a letter quoted by the judge from the UK Border Agency to the
UNHCR dated 8 November 2011 (HC 163). Having explained the background it
stated:
“… The Republic of Cyprus (RoC) has agreed to accept and
resettle the refugee families, but due to their distrust of the
RoC, the refugee families have refused to move from their
current accommodation in ‘Richmond Village’ (former Service
family accommodation) on the SBA.
Page 19
A Memorandum of Understanding (MoU) was signed with the
RoC in 2003 to prevent this situation occurring again. Under
this MoU the RoC handles all asylum seekers that enter the
SBA. This has worked well. But the original applicants remain
the responsibility of the SBAA.
In 2007 [sic], an informal agreement was reached between the
SBAA and the RoC, under which the RoC agreed to honour
any decisions made by the SBAA in respect of the families and
take responsibility for them. The UK Border Agency again
provided assistance and sent caseworkers to the base to
interview 25 of the individuals. Unfortunately, the families
failed to co-operate and the interviews never took place …”
Events leading to the present proceedings
43. In the proceedings before the Senior Judges’ Appeal Court, the respondents’
complaint that the Republic would not honour any commitment to make payments
was found to have no evidential foundation [paras 63-69, MS 859-62]. Since those
proceedings, there is however evidence of a further consolidation of the
respondents’ attitudes regarding any cooperative arrangements with the Republic
pending the outcome of the present proceedings. Ms Charalambidou, the
respondents’ legal representative in Cyprus, expressed this very clearly on their
behalf in a letter of 31 December 2012:
“l would finally like to inform you that the refugee families
continue to consider themselves as the responsibility of the
SBAA and the United Kingdom and therefore they have
informed me that they do not intend under any circumstances
to be considered as the responsibility of the Republic of
Cyprus.”
44. On 30 September 2013, following a meeting at the UNHCR offices in
Nicosia, Ms Charalambidou, and the local representative of the United Nations High
Commissioner for Refugees wrote jointly to the Administrator of the SBAs about
the respondents’ predicament. They observed that although resettlement in the
Republic had at one stage been seen as a desirable and practical option, the
respondents “did not consider this to be an option, based on their own experiences
and for reasons that need not be discussed”. The UNHCR representative added that
in any event the Republic was no longer willing to take them because of the aftereffects of the financial crisis of 2008 and the number of refugees that it had already
accepted. Both signatories expressed the view that resettlement in the United
Kingdom was “the only conceivable option”.
Page 20
45. That letter was passed by the SBA Administrator to the Home Office, but
there was a delay of more than a year in replying. The judge discussed the evidence
about the drafting of the reply (HC 351-354) including an internal response of a
Home Office official, apologising that the chasing email from the SBA had “slipped
under [his] radar”:
“… the UK has no legal obligation to accept the applicants,
refugees or not, and there are no close family ties or previous
residence in the UK or any compelling humanitarian reasons in
their favour. All in all, there would be no appetite to accept this
particular group, whose non-cooperation and behaviour would
make any country reluctant to take them.”
The judge commented (HC 354) that this response “suggest[ed] a closed mind on
the part of the Home Office to the question of admission of the refugees to the UK
and to anything said in support of it by the UNHCR”.
46. The formal reply eventually came in a letter dated 25 November 2014 in a
letter from Mr Rob Jones, the Home Office Head of Asylum and Family Policy. The
operative part of Mr Jones’ letter read
“As was explained in a letter of 8 November 2011 to the
London representative of the UNHCR (copy enclosed), Home
Office Ministers and officials have consistently made it clear
that there could be no question of the families on the SBA being
admitted to the UK. The families have at no time been given
any encouragement to believe that they could be. It would be
contrary to UK policy to accept the transfer of refugees who
have no close connection to the UK and it would also be
inconsistent with our policy on asylum applicants who arrive
in British Overseas Territories or Crown Dependencies.
Although their presence on the Base has been tolerated by the
SBA, their stay gives the families no claim to admission to the
UK. The UK’s policy on the admission of refugees is in
accordance with the 1951 Refugee Convention and the UK
accepts no responsibility for the consideration of applications for
asylum or transfer of refugee status other than those made on UK
territory, namely the mainland territory of the UK and excluding
the UK’s Overseas Territories, Crown Dependencies, or
Sovereign Bases such as the ones in the Republic of Cyprus. Our
position, therefore, is that none of the refugee families on the
SBA will be considered for admission to the UK. They have no
Page 21
family or residential ties with the UK and there are no reasons
for treating them exceptionally. The families have the right to
reside in the Republic of Cyprus and have strong ties with the
Republic. We do not believe that their preference for the UK
should be allowed to override what is demonstrably a durable
and suitable solution for their long-term residence.”
47. The present proceedings were brought by way of application for judicial
review of the decision of the Secretary of State said to have been communicated in
that letter.
The High Court
48. The respondents’ application came before Foskett J in March 2016. He gave
judgment on 28 April 2016. He held that as a matter of international law, the Refugee
Convention did not apply to the SBAs because they were indeed a new international
entity created in 1960. He went on to deal with the United Kingdom’s declared
policy of observing the “spirit” of the Convention. He recorded it as common ground
(because it was accepted in internal documents passing between the SBA
Administration and government departments in London) that the United Kingdom
could not in practice provide the respondents with their full Convention rights within
the SBAs with the facilities currently available there. Although he made no formal
finding of his own to this effect, it is clear from his analysis of the evidence that he
agreed.
49. It followed that a level of support consistent with the spirit of the Convention
could be achieved only (i) by “effective resettlement” of the respondents in the
Republic of Cyprus, either by their moving there or by their remaining resident in
the SBAs but relying on facilities provided by the Republic by arrangement with the
SBAs; or (ii) by resettlement of the respondents in the United Kingdom. The Judge
held that it would be consistent with the spirit of the Convention for the United
Kingdom to support the respondents by making arrangements with the Republic of
Cyprus to do so. He therefore considered that option (i) would be lawful if it could
be achieved.
50. He made no finding as to whether in fact it could be achieved. But he held
that Mr Jones’s letter had failed to address the view expressed by the UNHCR local
representative in UNHCR’s letter dated 30 September 2013 that, “even if …
relocation to the Republic of Cyprus may have been seen as the most desirable or
practical option” in the past, “this is not the case anymore because of the financial
crisis prevalent in the Republic”; and that “accordingly, consideration was not given
as at the time of the decision letter in November 2014 to the strengths and/or
weaknesses of the informal agreement reached in 2005”. The decision letter had thus
Page 22
failed to consider “a crucial factor in deciding whether to admit the claimants to the
UK within the general discretion available to the Secretary of State” (HC 397).
51. He therefore quashed the Secretary of State’s decision. He left it to the
Secretary of State to consider, when taking a fresh decision, whether support through
the Republic of Cyprus was a practical proposition.
The Court of Appeal
52. The Secretary of State’s appeal was heard by Jackson, Briggs and Irwin LJJ
in January 2017. In its unanimous judgment delivered on 25 May 2017, the Court
held, overruling the judge, that the SBAs were not a new entity and that the Refugee
Convention continued to apply to them by virtue of the United Kingdom’s
notification of 1956. In those circumstances, the question was no longer what was
implied by the United Kingdom’s policy of observing the spirit of the Convention.
The Court of Appeal did not deal with the question whether the terms of the
Convention required the United Kingdom to resettle the respondents in its
metropolitan territory, nor with the question whether it was open to the United
Kingdom in point of law to support the respondents through arrangements made
with the Republic of Cyprus. Instead, they quashed the existing decision and
directed that it be remade by 6 July 2017 on the footing that the Convention applied
directly.
53. Irwin LJ, delivering the only substantive judgment, said (para 79):
“In my judgment the outcome of that decision must take into
account the history but cannot be determined by this court
merely by re-analysing the historic evidence. The decision
must be taken in relation to the current facts …”
He also identified “some obvious factors” which he thought “absolutely critical to
the decision”. They included his view that the obligations of a State with
responsibility for refugees could not be “exported” but remained with the Secretary
of State (para 80); that the suggestion of counsel for the Secretary of State that they
could be permitted to remain where they were was likely to be inconsistent with
article 34 of the Convention, given the possibility of their assimilation into the UK
or other British Overseas Territories (para 81); and that, while the arrangement with
the Republic did not amount to “constructive expulsion” within article 32, a repeat
of that approach, absent agreement to resettlement in the Republic, would be “very
likely to represent a repeated failure to meet the obligations which I conclude fall
upon the UK” (para 83). He added:
Page 23
“84. Prominent amongst the relevant factors must be the
enormous delay which has affected these claimants and their
families. There can be no justification for any future decision
which leaves these claimants’ position unresolved for any
further length of time. As the judge made clear, their present
conditions are quite unacceptable. That appears to be common
ground …”
54. It followed from the way that the case was put in the courts below and from
the somewhat different bases on which Foskett J and the Court of Appeal quashed
the Secretary of State’s decision that neither of them needed to decide whether or
not it was in practice feasible to support the respondents through the facilities
provided by the Republic of Cyprus under the Memorandum of Understanding.
Foskett J in terms left that matter to be determined in a new decision, in which the
Secretary of State would be required to address the misgivings of the UNHCR local
representative on that score. The Court of Appeal implicitly did the same, while
pointing to a number of factors which she should take into account.
Further exchanges
55. On 16 June 2017, after the decision of the Court of Appeal, the United
Nations High Commissioner for Refugees wrote to the Secretary of State asking her
to reconsider her decision not to admit the respondents to the United Kingdom. In
his letter, the High Commissioner raised doubts about the practical feasibility of
supporting them through facilities provided by the Republic of Cyprus, after 19
years and in the absence of any formal agreement or assurances regarding their
future in the Republic. He concluded:
“These refugees find themselves in a state of legal limbo with
seriously compromised or no access to welfare, health care,
education, and employment. Recently, welfare benefits have
been reduced, and these refugees have been unable to renew
their medical cards in the Republic of Cyprus, which are
required to access health care. They also have not been able to
access either tertiary education or employment in the Republic
of Cyprus. Of serious concern, these refugees and their families
are living in sub-standard housing, which needs to be
demolished due to the presence of asbestos.”
56. Meanwhile, the Court of Appeal having refused to stay its decision, the
Secretary of State was obliged to make a fresh decision in compliance with its order
by 6 July 2017. It is unnecessary to set it out in detail at this stage. She declined to
allow the respondents entry into the United Kingdom. Her reasons were
Page 24
substantially the same as those given on 25 November 2014, except that the fresh
decision, unlike the original one, directly addressed the options open to the
respondents other than resettlement in the United Kingdom. It is apparent that she
did not accept the version of events put forward by the UN High Commissioner. She
considered that on the footing that the Refugee Convention applied in the SBAs the
United Kingdom could comply with its obligations by arranging for the respondents
to be supported by the Republic of Cyprus. The reason, she said, why that had not
happened was that the respondents had declined to engage with the authorities in the
Republic while there was any prospect that the present proceedings might result in
their admission to the United Kingdom. While accepting that the 2003
Memorandum itself only applied to persons arriving in the SBAs on or after 1 May
2004, she stated again that “in 2005 the Republic of Cyprus agreed to apply it to
those who arrived in 1998”. She addressed the concerns of the UNHCR local
representative in the following terms:
“As you are aware, in 2003, the UK and the Republic of Cyprus
signed a Memorandum of Understanding under which the
Republic agreed to treat persons who arrived directly in the
SBAs, and were recognised as refugees under the procedures
contained in that Memorandum, as if they had been recognised
as refugees by the Republic. Whilst the Memorandum itself
only applies to persons arriving in the SBAs on or after 1 May
2004, in 2005 the Republic of Cyprus agreed to apply it to those
who arrived in 1998.
I have carefully considered the UNHCR letter of 30 September
2013, in which the UNHCR raised concerns because of the
financial crisis in Cyprus at that time and claimed that the
Republic of Cyprus had stated they could not take any more
refugees. As was explained on the Secretary of State’s behalf
in the Court of Appeal, the reference appeared to be to a speech
by the Interior Minister, but he had actually said that the
Republic could not sustain any more asylum seekers, though
would still honour all international conventions and
agreements on human rights.
In any event, whilst I acknowledge there was a period in 2008
when it appeared that the Republic no longer stood by what it
had agreed in 2005, the officials have since confirmed many
times, both during the period between 2008 and 2013, and after
the UNHCR letter of September 2013 that the Republic is
committed to its 2005 agreement and stands by its decision in
2005 (documents in letters to you) to recognise you as refugees
and grant you the rights to which you are entitled as a refugee
Page 25
in the Republic. The Sovereign Base Areas Administration
(SBAA) is actively engaged, in cooperation with the
Republic’s Asylum Service and its Labour Office, in efforts to
assist you to access the help which this agreement clearly
makes available to you.
I have also carefully considered the UNHCR letter of 16 June
2017 in which concerns were raised about the impact on your
health given the need to find a durable solution. However, I
note that there is a durable solution available to you but you
have been unwilling·to engage with the Republic or take up the
offer to obtain support from the Republic of Cyprus until the
final outcome of the litigation. This was acknowledged by
Chrystalla Katsapaou of UNHCR Cyprus at a recent meeting
with the SBAA.
I do not accept that you or your family members are subject to
compromised or no access to welfare, health care, education or
employment. This is simply not true. You are able to use the
health services of the Republic and I am aware that the children
already attend schools in the Larnaca district. You are entitled
to register with the Labour Office and to claim welfare benefits
as if you were nationals of the Republic. You would have to
cooperate with the registration process of course, but that
would be the same in any country to which you were resettled
and I do not accept that your failure to cooperate should lead to
a grant of entry clearance to the UK. Depending on the
composition of each family, you can expect between 600 Euros
and 1,100 Euros per family per month more than the ex gratia
payments which were previously provided to you by the
SBAA. I consider that there is adequate support available
should you decide to take advantage of this.
There is also work available that you could choose to take
advantage of. The Labour Office in Larnaca will help you find
work if you register with them. I am aware that the Labour
Office offered to help you register and provide more
information about the Republic’s system but you refused to do
so.
In addition, the Minister of the Interior has recently indicated
that the Republic would look positively at applications you
choose to make for naturalisation as Cypriot citizens.
Page 26
In the circumstances set out above, and as a result of ongoing
discussions between the SBAA, the Foreign and
Commonwealth Office and the Republic of Cyprus in order to
try to support you, I have concluded that there remains a
durable long-term solution available for you to stay in the
SBAs should you choose to do so, and look to the Republic’s
government for public services and provision, as Cypriot
nationals living in the SBAs do. Alternatively, there is an
option for you to resettle in the Republic of Cyprus. In either
case you could apply for Cypriot citizenship.
…
I have also considered whether to grant entry clearance on
compassionate grounds, in spite of the absence of any legal
obligation to admit you to the UK, either under the Immigration
Rules or by virtue of the Refugee Convention. In all the
circumstances, I am not willing to do so. I take the view that
the solution which has been on offer for many years is one
which it is reasonable to expect you to take up.”
57. On 7 July 2017 the Secretary of State directly responded to the UNHCR’s
letter of 16 June 2017 in similar terms to her fresh decision of 6 July. The UNHCR
replied to the Secretary of State on 26 October 2017 to clarify and share additional
information about its June observations. Additional comments were provided on the
Memorandum of Understanding and the precariousness of its application to the SBA
refugees and difficulties faced by the SBA refugees regarding access to welfare
assistance, access to the labour market, access to health care, access to education,
access to long-term residence and access to citizenship in the Republic of Cyprus.
At the hearing Mr Eadie indicated that the Secretary of State was preparing a
response to the UNHCR’s most recent letter. The court received that response on 26
July 2018 from the Government Legal Department in the form of a letter dated 8
January 2018 without further comment from the parties on its contents.
58. Accordingly, the present position is that the decision of 25 November 2014,
which is the subject of the respondents’ application for judicial review, no longer
exists. It has been quashed by the courts below and superseded by the fresh decision
which the Secretary of State has now made in accordance with the order of the Court
of Appeal. The Secretary of State’s current decision has not been quashed and is
technically not before this court. The subject-matter of the Secretary of State’s two
decisions is, however, the same and they raise issues which partly overlap.
Page 27
The issues in the appeal
59. As noted at the beginning of this judgment, the issues as they have emerged
were not clearly identified in the agreed statement or in the pre-hearing exchanges.
No purpose would be served at this stage by examining the reasons for that failure.
It would be highly unsatisfactory, as we approach the twentieth anniversary of the
respondents’ arrival in the SBAs, to remit these issues to the High Court or leave
them to be determined on a further application for judicial review of the Secretary
of State’s decision of 6 July 2017. In these circumstances, we think that the least
unsatisfactory approach is for us to identify the issues which now appear essential
to the resolution of this appeal, to give judgment now on the issues which we are in
a position to decide at this stage, and to make proposals for the early resolution of
the remainder.
60. In summary the following questions appear now to require decision:
i) Does the Refugee Convention (as extended by the 1967 Protocol)
apply to the SBAs?
ii) Does the Convention by its terms entitle the respondents to be resettled
in the United Kingdom?
iii) Was the Memorandum of Understanding of 2003 a valid performance
of the Convention obligations for those within its scope? In particular:
a) Was the United Kingdom in principle entitled to fulfil its
obligations under the Convention by arranging for support to be
provided by the Republic of Cyprus?
b) If so, were the terms of the Memorandum of Understanding
(including the 2003 Refugee Ordinance) a proper basis on which to do
so?
iv) If the answer to (iii) is “yes”:
a) Was the United Kingdom entitled in 2005 to make the same
arrangements in respect of the respondents without their consent,
given their lawful and accepted presence as refugees in the SBAs since
2000?
Page 28
b) If so, was the 2005 “agreement” with the Republic a legally
effective means of doing so, having regard to its informality and the
absence of incorporation into SBA law?
c) Has the support of the Republic for the respondents in
accordance with the 2005 agreement been available in practice, and
can it be assured in the future?
v) If the 2005 agreement, for whatever reason, was not a legally effective
means of discharging the United Kingdom’s obligations to the respondents
under the Convention, or if such support has not been available in practice,
what are the consequences, in terms of rights or remedies potentially
available in these proceedings, and how should the court give effect to them
in its order?
61. Questions (i) and (ii), which are questions of international law, have been
fully argued, and will be addressed in this judgment. We will also address issue (iii)
in so far as it is relevant to the respondents’ case. We will then give a brief
provisional view of the matters likely to require consideration under the other heads.
We appreciate that Mr (now Sir) James Eadie QC submitted that at any rate points
(b) and (c) under issue (iv) fell outside any issues argued below or for which leave
to cross-appeal to this Court has been obtained. Any objection of this nature will
remain open for consideration, though we would wish to determine any issues which
can fairly be determined.
(i) Does the Refugee Convention (as extended by the 1967 Protocol) apply to
the SBAs?
62. The respective positions of the parties in summary are as follows. The
respondents say that the Convention applies by virtue of the United Kingdom’s
declaration of 1956 under article 40(2). The Secretary of State says that the SBAs
are new entities in international law, created in 1960, in relation to which no such
declaration has been made. He accepts that the respondents have been treated as
refugees protected by the Convention but contends that this was not a legal
entitlement but an ex gratia concession made in accordance with the United
Kingdom’s policy relating to dependent territories where the Convention does not
apply.
63. Given that until 1960 the Convention unquestionably applied to the territory
now comprised in the SBAs, the question is whether the political separation of that
territory from the rest of the island brought an end to its application there. This is
necessarily a question of international law. But while international law may identify
Page 29
the relevant categories and the principles that apply to them, the question whether a
particular territory falls within a relevant category will depend on the facts, and these
may include its domestic constitutional law.
64. The only mode of termination expressly provided for in the Convention is
denunciation, which is governed by article 44. The Convention has not of course
been denounced by the United Kingdom, either generally or with respect to the
SBAs. But as between contracting states, there are a number of other circumstances
in which treaty obligations may come to an end, so far as they relate to particular
territory. In particular, they may come to an end as a result of a sufficiently radical
change in the international status of that territory. There is a substantial body of state
practice bearing on this question, which is summarised in standard works such as
Oppenheim’s International Law, 9th ed (1992), ed Sir Robert Jennings QC and Sir
Arthur Watts, i, paras 62-64 and McNair, The Law of Treaties (1961), pp 600-606,
629-638. The ordinary principle is that obligations in international law are owed by
international persons, primarily states. As subjects of international law, international
persons enjoy rights, duties and powers established in international law and more
generally a capacity to act on the international plane. Treaty obligations apply to the
international entities which enter into them. Where they have territorial application,
they apply to the states responsible internationally for the territory in question. It
follows that treaty obligations will cease to apply to a territory where it secedes from
the state which entered into the treaty, or where a formerly dependent territory
becomes independent of the parent state which entered into the treaty.
65. There is some support in state practice for the application of a broader rule to
treaty obligations of a non-political and especially of a humanitarian character. The
broader rule would attach treaty obligations to territories rather than to the
international persons responsible for them. The International Law Commission of
the United Nations, in presenting draft articles on state succession to the General
Assembly in 1974 (Document A/9610/Rev.1), expressed the opinion that some legal
incidents may attach to an antecedent treaty on the ground that it “establishes a legal
nexus between the territory and the treaty” such that a successor state will be bound
by it: Yearbook (1974), vol ii(1), p 167, para (49). However, it is clear from the
commentary that the circumstances in which the question arises are too varied and
state practice on the point is insufficiently uniform and too obviously influenced by
pragmatic considerations to give rise to a rule of customary international law: ibid,
pp 196-199, 202-207, paras 1-9, 21-48. This is, as the editors of Brownlie’s
Principles of Public International Law, 8th ed (2012), at p 424, note “an area of
uncertainty and controversy”.
66. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs
(No 2) [2009] AC 453, the House of Lords had to answer the question whether the
European Convention on Human Rights applied in the British Indian Ocean
Territory (“BIOT”) by virtue of the extension of the Convention to the then colonies
Page 30
of Mauritius and the Seychelles in 1953 under a similar colonial clause. The BIOT
comprised outlying groups of islands formerly part of those colonies, which had
been separated from them for defence purposes in 1965 and constituted as a distinct
colony by the British Indian Ocean Territory Order 1965 (SI 1965/1920). Section 3
of the Order provided that the islands, “shall together form a separate colony which
shall be known as the British Indian Ocean Territory”. Mauritius and the Seychelles
subsequently became independent in 1968. Lord Hoffmann, with the agreement of
the rest of the Appellate Committee, dealt with the question at para 64 as follows:
“In 1953 the United Kingdom made a declaration under article
56 of the European Convention on Human Rights extending the
application of the Convention to Mauritius as one of the
‘territories for whose international relations it is responsible’.
That declaration lapsed when Mauritius became independent.
No such declaration has ever been made in respect of BIOT. It
is true that the territory of BIOT was, until the creation of the
colony in 1965, part of Mauritius. But a declaration, as appears
from the words ‘for whose international relations it is
responsible’ applies to a political entity and not to the land
which is from time to time comprised in its territory. BIOT has
since 1965 been a new political entity to which the Convention
has never been extended.”
67. We have been invited to overrule this decision. It is said to be inconsistent
with ordinary principles of international law whereby (i) international obligations
are owed in respect of specific territory, and (ii) a state’s international responsibility
is unaffected by changes to the governance or constitutional status of some part of
its territory. It will be apparent from what we have already said that we do not accept
this criticism. As to proposition (i), it is a truism that a state’s international
responsibilities are generally owed in respect of particular territory. But it does not
follow that the responsibility attaches to the territory as such, rather than the
international person responsible for it. Otherwise, where a state assumes treaty
obligations in respect of its entire territory, the severance of part of that territory
could never result in those obligations ceasing to apply to it. Yet it is accepted that
that is not the position. As to proposition (ii), it is correct that a state cannot rely on
its domestic law as authorising or excusing a breach of its international obligations:
see Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in
the Danzig Territory (1932) PCIJ, Series A/B No 44, p 4, at p 24. The proposition
is stated as follows in article 3 of the International Law Commission’s Articles of
Responsibility of States for Internationally Wrongful Acts (2001):
“The characterisation of an act of State as internationally
wrongful is governed by international law. Such characterisation
Page 31
is not affected by the characterisation of the same act as lawful
by internal law.”
68. This, however, assumes that the state in question is subject to the relevant
international obligation. Where that obligation is derived from a treaty, the prior
question is whether the treaty applies to the particular State in respect of the
particular territory. That will necessarily depend on the current constitutional
relationship between the state and the territory in question. Thus the international
responsibility of the United Kingdom in respect of British Dominions has always
depended on the constitutional relationship between them as it stood from time to
time, which is a matter for their domestic law. The Statute of Westminster 1931,
which confirmed the status of the Dominions as independent sovereign states, was
an Act of the United Kingdom Parliament. It would have been absurd to suggest that
international law would for that reason have declined to take cognizance of it, or
would have treated it as an ineffective attempt by the United Kingdom to avoid the
international obligations which it previously had for the Dominions’ acts.
69. The decisive point is in our view a different one. The decision in Bancoult
(No 2) was about the constitutional and international status of the BIOT, which is
materially different from that of the SBAs. The Cyprus Act 1960 did not alter the
status of the SBAs, but merely excluded them from the transfer of territory to the
new Republic of Cyprus. The Sovereign Base Areas of Akrotiri and Dhekelia Order
in Council 1960 has no equivalent of section 3 of the British Indian Ocean Territory
Order 1965. Indeed, it says nothing at all about the status of the SBAs, but only
about the organisation of their internal administration. These differences reflect the
very different nature of the changes of which the orders were part. The BIOT was a
territory reconstituted from parts of two other colonies to make a third colony. It had
a different international status (ie vis-à-vis third countries) from Mauritius and the
Seychelles, and the United Kingdom had different international responsibilities in
relation to it, notably in regard to the United States. In the case of the SBAs, the only
change which occurred in 1960 was that whereas they had previously been part of
the UK-dependent territory of Cyprus, they were thereafter the whole of it. The mere
fact the United Kingdom lost 97% of the island of Cyprus did not alter the status of
the 3% that it retained. The status of the SBAs vis-à-vis the rest of the world did not
change, except in relation to the rest of Cyprus, and that was because of a change in
the status of the rest of Cyprus and not because of a change in the status of the SBAs.
70. With one exception, we find it difficult to attach much importance to the
various instances cited by the respondents in which the United Kingdom has treated
the creation of new colonial entities as leaving unaffected the application of treaties
which previously applied to them. These instances include the separation of the
Cayman Islands and the Turks and Caicos Islands from Jamaica in 1958 and the
dissolution into its component territories of the Federation of Rhodesia and
Nyasaland in 1963. They do not constitute a sufficient body of state practice to give
Page 32
rise to a rule of customary international law. At the most they show that the United
Kingdom has not been consistent on this question. The exception is the treatment by
the United Kingdom of treaties of mutual legal assistance which had been extended
to Cyprus under colonial clauses before 1960. The United Kingdom has taken the
position in its dealings with other countries party to these treaties that (in the words
of a Foreign Office memorandum) “treaties which had applied to the colony of
Cyprus continued automatically to apply to the two pieces of territory now known
as the Sovereign Base Areas”. This has been tacitly accepted by all of them except,
briefly, the Lebanon. The Lebanon was told that creation of an independent Republic
of Cyprus “effected no change in the international status of these areas” (see HC
237). These exchanges do not suggest a rule of customary international law, any
more than the other instances do. But they are, we think, relevant as a statement of
the international status of the SBAs by the state responsible for their international
relations, which is ultimately in a position to determine what their international
status is to be. The position taken by the Foreign Office accords precisely with the
law as we conceive it to be as a matter of analysis.
71. We conclude that the Refugee Convention continues to apply to the SBAs by
virtue of the declaration of 1956, in the same way as it applied to the whole colony
of Cyprus before 1960. Article VII(4) of the 1967 Protocol provides that where a
state made a declaration under article 40(1) or (2) of the Convention extending its
application to a territory for whose international relations it was responsible, and
then acceded to the Protocol, the declaration should apply to the Protocol also, unless
that state notified the Secretary-General to the contrary. In other words, no further
declaration was required to extend the Protocol to dependent territories where the
original Convention applied. The United Kingdom acceded to the Protocol without
any reservation relating to the SBAs. It follows, since the Convention continued to
apply to the SBAs after 1960, that the Protocol applies there also.
72. That makes it inappropriate to assess the United Kingdom’s treatment of the
respondents by reference to the “spirit” of the Convention. The United Kingdom is,
as a matter of international law, bound by the Convention and the Protocol as such.
(ii) Does the Convention by its terms entitle the respondents to be resettled in
the United Kingdom?
73. The respondents say that they have a direct right to entry into the United
Kingdom under the terms of the Convention, by virtue of their status as refugees in
a territory under the United Kingdom’s sovereignty. Specific reference is made to
articles 26, 32 and 34. This is a question of great general importance. It may be
restated as follows. Is it the effect of the Convention that, once a refugee reaches a
dependent territory of a state (such as an SBA) to which the Convention applies, the
refugee is entitled without more to move freely to what article 19(2) of the
Page 33
Convention calls the “metropolitan” territory of that State or to any other dependent
territory of the same state to which the Convention has been extended?
74. The territorial application of a treaty is a question of international, not
domestic law. It depends, like most aspects of the law of treaties, on the intention of
the contracting states. Article 29 of the Vienna Convention on the Law of Treaties
(1969) provides that:
“unless a different intention appears from the treaty or is
otherwise established, a treaty is binding upon each party in
respect of its entire territory.”
75. Multilateral treaties, however, commonly provide for a different intention.
As Sir Humphrey Waldock, Special Rapporteur, demonstrated in his Third Report
on the Law of Treaties to the International Law Commission (1964) (A/CN.4/167),
at pp 12-15, this is reflected in the practice, which can be dated back to the 1880s,
of inserting clauses excluding the application of treaties to parts of the territory of a
contracting state, or making their application there subject to conditions, such as
local consent or subsequent notification: see, more generally, Fawcett, “Treaty
Relations of British Overseas Territories” (1949) 26 BYIL 86, 94-99. The practice
originated in the need of imperial powers, and notably the United Kingdom, to
consult the governments of dependent territories on whom it had conferred a
measure of autonomy, before assuming international obligations affecting them. But
it has also been adopted by federal states, in cases where the federal government has
exclusive responsibility for international relations but part or all of the subject matter
of the treaty is within the exclusive legislative competence of its component
territories. These particular concerns are commonly dealt with by “colonial clauses”
and “federal clauses”. In principle, however, states are at liberty to enter into treaties
on terms as to their territorial application for any reason that they see fit.
76. The widespread use of colonial clauses reflects the principle that for certain
purposes, including the application of treaties, dependent territories of a state are
treated as having a status in international law distinct from that of the parent state’s
metropolitan territory. More generally, it reflects one of the “basic principles of
international law” declared in the United Nations Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations (General Assembly Resolution
2625 (XXV)) (1970), that:
“the territory of a colony or other Non-Self-Governing
Territory has, under the Charter, a status separate and distinct
from the territory of the State administering it; and such
separate and distinct status under the Charter shall exist until
Page 34
the people of the colony or Non-Self-Governing Territory have
exercised their right of self determination in accordance with
the Charter, and particularly its purposes and principles.”
77. It is true that the purpose of “colonial clauses” is to accommodate the limited
autonomy accorded by some imperial powers to the more advanced dependent
territories. It is also true that the purpose of this particular part of the United Nations
Declaration is to accommodate the principle of self-determination and the
trusteeship obligations of colonial powers. These purposes may be said to have
limited if any relevance to uninhabited territories or to sui generis cases such as the
SBAs, which are military facilities rather than settlements, and whose indigenous
inhabitants are citizens of the Republic with all the rights attaching to that status.
But while the problems associated with colonial autonomy and trusteeship may have
been the occasion for recognising an international status for dependent territories,
distinct from that of the metropolitan territory, the principle itself cannot be confined
to such cases. It would in any event be practically impossible to do so given the fine
questions of degree which would arise if it were necessary to introduce a subdistinction between different dependent territories depending on the extent of their
internal autonomy or the number or status of their indigenous inhabitants.
78. Like many multilateral treaties, the Refugee Convention was so framed as to
apply only to a State’s “home country” or “metropolitan territory” unless extended
under article 40 to other territories for whose international relations the signatory
state was responsible. In contrast with the position in some other contexts (see eg R
(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)
[2008] UKHL 61; [2009] AC 453, para 40, and R (Keyu) v Secretary of State for
Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355, para 186),
the metropolitan and overseas territories of the United Kingdom for whose
international relations it has responsibility are not in this context assimilated or
treated as one undivided entity. Under article 40, any Contracting State is able to
extend the Convention to all or any of the other territories for the international
relations of which it is responsible, or to do so on terms specific to each territory.
79. This is what happened when on 24 October 1956 the United Kingdom
notified the Secretary General of the United Nations of its extension of the
Convention to some 16 territories, including Cyprus. The notification was made
subject to reservations, differing between some overseas territories and others,
disapplying or varying particular terms of the Convention. By way of example, the
right to engage in wage-earning employment after completing “three years’
residence in the country” under article 17.2(a) was varied to four years in the case
of 14 of the territories, but not in respect of Zanzibar and St Helena; the provisions
of article 25.1 and 2 (relating to certain administrative assistance) were not accepted;
and the provisions of articles 24.1(b), 24.2 and 25.3 (covering inter alia the provision
of social security and certain administrative documentation) were made applicable
Page 35
only “so far as the [local] law allows”. In all these respects, the colonial clause gave
effect to the individuality of each overseas territory, including by taking account of
the views of any local administration.
80. Article 40 suggests that for the purposes of the Refugee Convention the
metropolitan territory and its dependent territories are to be treated as separate units.
The different terms on which the Convention may extend to different territories
could not be given effect, if all territories fell to be regarded as one. The Convention
terminology varies between articles. Article 2 refers, for example, to a refugee’s
“duties to the country in which he finds himself”, with the concomitant obligation
to conform to its laws and regulations. The “country in which he finds himself”
means whatever territory the refugee reaches. Article 4 provides that “The
Contracting States shall accord to refugees within their territories treatment at least
as favourable as that accorded to their nationals with respect to freedom to practice
their religion …”. The plural is used here because the article is dealing with all
Contracting States’ territories. Where there are differences in the freedom to practise
religion in different territories for the international relations of which a single State
is responsible, the article will only work if applied on a territory by territory basis.
81. A similar point applies to other articles requiring a State to accord to refugees
in their territory “the most favourable treatment accorded to nationals of a foreign
country in the same circumstances” or “not less favourable [treatment] than that
accorded to aliens generally in the same circumstances” or “the same treatment as
… nationals”: see eg articles 15 and 17 to 24. Each territory for the international
relations of which the State is responsible must in this context be treated separately.
82. Article 26 is to be read in the same light. Headed “Freedom of Movement”,
it reads:
“Each Contracting State shall accord to refugees lawfully in its
territory the right to choose their place of residence [and] to
move freely within its territory, subject to any regulations
applicable to aliens generally in the same circumstances.”
83. The French text confirms that the word “and”, inserted in brackets, should be
read into the English version. Article 26 is directed to movement by a refugee within
whichever territory they may be, whether it be the metropolitan territory, if that is
where they are, or any overseas dependent territory, if they are there. The
qualification relating to aliens in the same circumstances refers naturally to the
possibility of restraints on movements internally, again within either the
metropolitan territory or the overseas territory as the case may be. It cannot have
been directed to conferring on a refugee a right to move between all or any of a
Page 36
State’s metropolitan and overseas territories, subject only to such constraints as
might affect an alien.
84. On this point, Foskett J (para 303) was in our opinion clearly correct. In the
Court of Appeal, Irwin LJ (para 82) appears in contrast to have considered that
article 26 applied without limitation across all of any State’s territories; and further
that the limitation by reference to aliens could simply be avoided (or in effect
eliminated) on the basis that a refugee’s circumstances differ from those of an alien.
On both points, he was in our opinion mistaken. The term “in the same
circumstances” is used in the Convention to indicate that a refugee should notionally
be assimilated with a person who is not a refugee but seeks to enjoy the same right,
except in the case of “requirements which by their nature a refugee is incapable of
fulfilling”: article 6.
85. Article 19 is instructive. It reads:
“LIBERAL PROFESSIONS
1. Each Contracting State shall accord to refugees lawfully
staying in their territory who hold diplomas recognized by the
competent authorities of that State, and who are desirous of
practicing a liberal profession, treatment as favourable as
possible and, in any event, not less favourable than that
accorded to aliens generally in the same circumstances.
2. The Contracting States shall use their best endeavours
consistently with their laws and constitutions to secure the
settlement of such refugees in the territories, other than the
metropolitan territory, for whose international relations they
are responsible.”
86. Article 19(1) addresses the position of “liberal professionals” in the territory
in which they are (which would in the circumstances in which the Convention was
drafted commonly be a metropolitan European territory) while article 19(2) gives
them the exceptional privilege of an undertaking that the relevant State will “use its
best endeavours” to secure their settlement in another territory for whose
international relations that State is responsible. Such a privilege makes no sense if
everyone (not just liberal professionals) had the right to move anywhere in any of
the territories for whose international relations a State was responsible and to which
it had extended the Convention. Each such territory is, on the contrary, to be seen as
a separate unit. It is noteworthy that the privilege is only to have the State “use [its]
best endeavours”. Anything further would risk impinging on the local interests
Page 37
which constitute one reason for the separate treatment in article 40 of overseas
territories for whose international relations a State is responsible.
87. As already noted, the respondents also refer to and rely on articles 32 and 34,
which provide
“Article 32
EXPULSION
1. The Contracting States shall not expel a refugee
lawfully in their territory save on grounds of national security
or public order …”
“Article 34
NATURALIZATION
The Contracting States shall as far as possible facilitate the
assimilation and naturalization of refugees. They shall in
particular make every effort to expedite naturalization
proceedings and to reduce as far as possible the charges and
costs of such proceedings.”
88. Article 32 gives a remedy against forced removal from the relevant
“territory” (in this case the SBA), but says nothing about the right to move
elsewhere. Although it may be relevant to other issues, it cannot be relied on in itself
as providing a right to resettle in the UK. The same applies to article 34. It makes
no specific reference to any “territory”, and there is room for argument as to how it
should be interpreted in the particular circumstances of the SBAs (see, for example,
A Grahl-Madsen, Commentary on the Refugee Convention 1951 (1963, published
1997), Comment No 2 on article 34, on which Mr Husain relies). What however is
clear is that article 34 does not seek to override the distinct treatment in the
Convention of metropolitan and overseas territories. It provides no basis for
submitting that a refugee is entitled to look to the State so far as possible to assimilate
and naturalise himself or herself in whichever of those territories he or she may wish
to settle in, irrespective of where he or she actually is or of the prevailing
circumstances there. In our view, the Court of Appeal was clearly wrong if it
intended, at para 81, to treat article 34 as giving any refugee in any territory
anywhere, for whose international relations a State is responsible and to which the
Page 38
Convention has been extended, a right to have that State as far as possible facilitate
his or her assimilation and naturalisation in any other of such territories.
89. We conclude that the Convention does not by its terms entitle the respondents
to be resettled in the United Kingdom. A State’s duties under the Convention to a
refugee reaching a particular territory for whose international relations the State is
responsible are in principle and in normal circumstances limited to providing and
securing the refugee’s Convention rights in the context of that territory.
(iii) Was the Memorandum of Understanding of 2003 a valid performance of
the Convention obligations for those within its scope? In particular:
(a) Was the United Kingdom in principle entitled to fulfil its
obligations to refugees in the SBAs by arranging for support to be
provided by the Republic of Cyprus?
(b) If so, were the terms of the Memorandum of Understanding (including
the 2003 Refugee Ordinance) a proper basis on which to do so?
90. These issues do not arise directly for decision, since the 2003 Memorandum
does not in terms apply to the respondents, and its validity as applied to those within
its scope has not as far as we are aware been questioned hitherto. In any event, for
the purposes of the domestic law of the SBAs, the 2003 Ordinance provides in terms
that the rights under the Convention are to be treated as “having been properly
accorded”, whether in the SBAs or the Republic: regulation 23(2). The validity of
that regulation has not been questioned in these proceedings and would be a matter
for the courts of the SBAs, not of the UK.
91. The almost uniquely close practical links between the SBAs and the Republic
are apparent from the complex treaty and regulatory framework which we have
already summarised in paras 10 to 13 above. In summary, the international status of
the SBAs and their relations with the Republic of Cyprus are governed by the Treaty
concerning the Establishment of the Republic of Cyprus signed on 16 August 1960
between the United Kingdom, Greece, Turkey and Cyprus, as well as associated
exchanges of notes. Annexes A and B to the Treaty of Establishment contain a broad
range of mutual obligations, underlining the umbilical cooperation between the
United Kingdom in respect of the SBAs and the Republic if the SBAs were to be
viable.
92. To take some examples, in addition to sovereignty over the SBAs, the United
Kingdom was to have the use of and complete control over a number of Sites
Page 39
elsewhere in the Republic (Annex B, Part II, sections 1 and 2) and to police these
Sites, but on the basis that persons arrested there would be handed over to the
Republic save in cases where the United Kingdom had exclusive jurisdiction (Annex
B, Part II, section 2, para 3). The Republic undertook to take necessary measures to
ensure the security of the Sites, but on the basis that the United Kingdom authorities
could take precautionary measures in the immediate and actual vicinity, in the event
of an immediate threat, while the United Kingdom enjoyed a general right to take
reasonable steps to prevent injury or damage to, or interference with, United
Kingdom personnel, their dependents and United Kingdom property (Annex B, Part
II, section 2, paras 4 and 5). Under Annex B, Part II, section 3, the authorities of the
Republic undertook to arrange for, inter alia, such reasonable control over activities
in the vicinity of United Kingdom installations and equipment in the Island of
Cyprus as considered necessary by the United Kingdom to ensure their efficient
operation and security (para 1); the authorities of the Republic undertook to search
nearby villages where the United Kingdom authorities suspected that there might be
apparatus likely to interfere with nearby installations in the Dhekelia SBA (para 2);
and United Kingdom police and armed forces members were, if absolutely
necessary, entitled to take into custody persons obstructing or attempting to obstruct
the use or exercise of the facilities and rights accorded to the United Kingdom under
the Treaty, or damaging, removing or attempting to damage United Kingdom
property (para 3). The Annexes continue in a similar vein, with further mutual
arrangements and obligations.
93. The practical implications of the interdependence of the SBAs and the
Republic of Cyprus are explained by Lisa Young, Policy Secretary of the SBA
Administration, in her witness statement dated 15 January 2016:
“10. In reality, the odd shaped boundaries of the SBAs and
the existence of [Republic of Cyprus] enclaves in the [Eastern]
SBA [Dhekelia] make little difference to the everyday life of
people living in the SBAs. Although all people in the SBAs are
subject to SBA law, the SBA courts and the jurisdiction of the
SBA civil administration and SBA police, to many intents and
purposes, Cypriots living in the SBAs live as if they were in the
Republic. The declarations made on 18 August 1960 …
provide that the laws of the SBAs are ‘as far as possible the
same as the laws of the Republic’ and in practice this is largely
the case. The SBAs have open borders and a customs union
with the RoC. … Residents move freely between the RoC and
the SBAs, as provided in Appendix O. … [T]he border is
marked with inconspicuous pillars …
11. RoC nationals and residents living in the SBAs can vote
in the Republic. Under functions delegated in the 1960
Page 40
arrangements, the RoC provides and pays for the utilities and
social services (ie welfare, schools and health care, usually in
the Republic) for RoC nationals living in the SBAs …
13. Since 1960 the SBAs have operated and cooperated with
the RoC under the ‘principle of delegation’, ie that the powers
and duties are delegated by SBAs to officers of the RoC to carry
out in the SBAs or in relation to the SBAs under the SBA law
which is equivalent to the RoC law. The current legislation is
the Delegation of Functions to the Republic Ordinance 2007.
14. The SBAA is a very small administration and the SBAs
have limited resources because of their limited military
purpose. The SBAs do not have the resources or authority to
provide the normal civilian government and services of a
modern welfare state to residents in the SBAs. The SBA does
not provide any social services in the SBAs. … Nor does the
SBA provide any utilities to the general public living in the
SBAs. Instead the relevant local RoC authorities provide public
utilities (electricity, water, and civilian telecommunications
services) to the Cypriot population living in the SBAs and MoD
bases, and the MoD and/or SBAA make financial and practical
contributions to RoC road construction. Most infrastructure is
linked through the Republic. The SBAs have no international
port of entry for members of the public. The public must use
ports and airports in the RoC …
15. Officials from the SBAA are in regular contact with
their counterpart RoC officials at local government level. … At
the higher level, engagement with the RoC is normally through
officials in the Ministry of Foreign Affairs, facilitated by the
British High Commission in Nicosia …”
94. It is correct that the Convention refers in many places to the appropriate
standard of treatment of refugees in a State’s territory and the provision of facilities
to refugees there. These references are commonly qualified by reference to the rights
of or treatment afforded to nationals or aliens in a comparable position in the same
territory. But nothing in the Convention, in our opinion, is expressly directed to a
situation like that which exists on the island of Cyprus, and nothing in it is expressly
inconsistent with the nature of the arrangements which the United Kingdom has
made with the Republic of Cyprus.
Page 41
95. The Refugee Convention falls for interpretation in accordance with the
principles laid down in the Vienna Convention on the law of treaties concluded on
23 May 1969 (the “VCLT”). Under article 31(1) of the VCLT:
“A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.”
Both international courts and tribunals will, in an appropriate case, interpret an
international treaty “not [as] static” but as “open to adapt to emerging norms of
international law”: Case concerning the Gabčíkovo-Nagymaros Project [1997] ICJ
Rep 7, para 112. They will endeavour to place a factual situation as it has developed
since the inception of a treaty “within the context of the preserved and developing
treaty relationship, in order to achieve its object and purpose in so far as that is
feasible”: ibid, para 133. The former citation was picked up in the award dated 24
May 2005 of a distinguished Arbitral Tribunal chaired by Dame Rosalyn Higgins in
the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the
Kingdom of Belgium and the Kingdom of the Netherlands (2005) RIAA, vol XXVII,
p 35. The tribunal used it in support of the proposition that “an evolutive
interpretation, which would ensure an application of the treaty that would be
effective in terms of its object and purpose, will be preferred to a strict application
of the intertemporal rule”: para 80. It also referred to the “principle of effectiveness”
in support of a “dynamic and evolutive approach to a treaty”: para 84.
96. In view of the above, and subject to issues about the precise interpretation of
certain articles, the court finds it hard to see any objection in principle to some or
even most or all of the supporting facilities required for refugees being provided by
co-operative and effective arrangements with the Republic. The more difficult issues
are as to its application to those already accepted as lawful refugees (as discussed
under the next group of issues).
97. However, it was part of the respondents’ case before this court that the 2003
Memorandum was not itself “fit for purpose”, even in respect of those within its
scope, so that the Secretary of State could not rely on its purported extension to the
respondents. Since the court has reached a clear and unanimous view on that issue,
it may help to narrow the remaining areas of dispute if we give our reasons at this
stage.
98. Mr Husain QC, who appeared for the respondents, submits that the 2003
Memorandum of Understanding is in terms “unfit for its purpose” even on the
assumption that it is applied to the respondents, and that the provision of support to
refugees in accordance with its terms would be a breach of the Refugee Convention.
Page 42
99. Mr Husain’s first point is that the Memorandum was not signed on behalf of
the SBA Administration but on behalf of the Government of the United Kingdom,
and that it contains undertakings by and in favour of the United Kingdom in respect
of refugees in the SBAs. We see that as entirely natural and appropriate. The United
Kingdom is responsible in international law for the international relations of the
SBAs and for ensuring their compliance with the Refugee Convention. The
Memorandum starts unsurprisingly by noting that “the United Kingdom through the
[SBA] Administration has the responsibility for illegal migrants and asylum seekers
that enter the island of Cyprus by the [SBAs]”.
100. Mr Husain next refers to paragraph 10 of the Memorandum, which provides
that “during their stay on the island of Cyprus persons recognised as refugees …
under the procedures determined in the Memorandum, will be treated so far as the
authorities of the Republic of Cyprus are concerned, as if such persons had been
recognised as refugees … by the Republic of Cyprus …”. Mr Husain described this
as “very problematic” and as constituting an “obvious breach” of the Convention, in
that it relegated the respondents to the standard of treatment set by the Republic.
However, the respondents have not suggested that the standard of treatment of
refugees applied by the SBAs would be any higher than that applied by the Republic
if the Memorandum had never been signed.
101. Mr Husain next points to paragraph 12 of the Memorandum, which requires
the United Kingdom to endeavour to resettle refugees within a year in a country
willing to accept them, as indicating that it was not its intention or effect to achieve
any durable long-term settlement as refugees in the Republic. A similar point is
taken in the most recent letter by the United Nations High Commissioner for
Refugees, who reads paragraph 12 as limiting the United Kingdom’s obligations to
refugees to a year. That in our view misreads paragraph 12 and ignores paragraph
10. To suggest that an inter-state undertaking to endeavour to resettle refugees
within one year accords them rights which only extend for one year is simply wrong.
Next, Mr Husain points to paragraph 19, which he submits gives the respondents
“no remedy for breach of the MoU”. However, the Memorandum is an international
agreement, which would not in itself be expected to provide any rights justiciable in
the domestic law of either Cyprus or the SBAs. Such rights as there are in the
domestic law of the SBAs are provided by the 2003 Ordinance. (We have no
evidence of the status of the Memorandum in the domestic law of the Republic.)
102. Finally, Mr Husain refers to paragraph 18, which he submits makes the
Memorandum terminable even as regards refugees accepted as such under its terms.
We consider it implausible that paragraph 18 would be interpreted as having this
effect on the status of persons already accepted under paragraph 8 prior to any
termination and so entitled, subject only to paragraph 13, to the treatment prescribed
by paragraphs 8, 9 and 10. In any event, the United Kingdom’s obligations to ensure
compliance with the Refugee Convention would continue notwithstanding any such
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termination, and the United Kingdom would, in one way or another, have to ensure
such compliance in that remote event.
103. For these reasons, we reject the respondents’ submission that the 2003
Memorandum was not a proper basis for the provision of the support for refugees
required by the Convention.
Issues for future determination
104. We turn to the issues on which we have found it necessary to ask for further
submissions.
(iv) Assuming the 2003 Memorandum was valid for those within its scope:
(a) Was the United Kingdom entitled in 2005 to make similar
arrangements for the provision by the Republic of facilities in respect of
the respondents living in the SBAs without their consent, given their
lawful and accepted presence as refugees in the SBAs?
105. This question was not in terms identified by the agreed statement of facts and
issues. However it emerged as an important part of the respondents’ response to the
Secretary of State’s contention that it was permissible under the Convention to
provide the respondents with facilities under arrangements made by the United
Kingdom with the Republic of Cyprus. The point was put most clearly by Mr Husain
QC in his written submissions (para 153):
“The first, and fundamental, objection to this response is that it
is not open to a Contracting State to ‘resettle’ lawfully present
refugees in the territory of another Contracting State without
their consent. There is no provision in the Refugee Convention
that allows this. On the contrary, article 32 prevents a State
from requiring a refugee to move to another State absent the
refugee’s consent. Article 32 provides that, ‘The Contracting
States shall not expel a refugee lawfully in their territory save
on grounds of national security or public order’.”
106. The Secretary of State’s case is thus that the United Kingdom’s obligations
under the Refugee Convention in respect of the respondents living in the SBAs can
and should be fulfilled on the island by cooperation between the United Kingdom
and the Republic of Cyprus. This, it is submitted, follows from the international
arrangements whereby the SBAs were retained under United Kingdom sovereignty
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and from the realities on the ground. The respondents’ case, by comparison, is that
the fulfilment of such obligations in this way is inconsistent with the terms of the
Refugee Convention.
107. The respondents’ argument that the provision of support through the
Republic of Cyprus amounts to an expulsion was rejected by both Foskett J (paras
341-342) and the Court of Appeal (para 83). The Secretary of State now accepts that
the respondents cannot, consistently with article 32 of the Convention, be required
to live in the Republic of Cyprus, or anywhere else outside the SBAs against their
will. There appears at one stage to have been an attempt by the SBA Administration
to drive the respondents from the accommodation that they currently occupy with a
view to making them leave for the Republic, but the attempt was abandoned and the
Secretary of State has made it clear that the respondents are entitled to remain. It
remains open to question whether that is sufficient if their only option there is and
has been to remain in accommodation which is admittedly seriously deficient.
108. However Mr Husain’s point is more fundamental. He refers to comments of
Professor Hathaway in The Rights of Refugees under International Law (2005), pp
965-966 on the limited “window of opportunity” for any resettlement other than by
consent. In the passage in question, Professor Hathaway discusses mandatory
resettlement schemes, such as the so called “Pacific Solution” operated by the
Australian government. He comments that such schemes can be operated without
infringing the Convention –
“… only if the non-consensual diversion into a resettlement
scheme occurs before the refugee concerned is ‘lawfully in’ a
state party and hence entitled to the more elaborate protections
against expulsion found in article 32.”
The window of opportunity, he says, is “quite short”:
“It ends once lawful presence (not lawful stay) is established,
at which point the strict limitations on expulsion set by article
32 apply so as to make enforced resettlement unviable in most
cases.” (pp 965-966)
That view appears consistent with the UNHCR Resettlement Handbook on which
the Secretary of State relies, which indicates that resettlement can only be achieved
by “partnership”, adding that “of course, refugees are themselves partners in the
process …” (Handbook pp 4-5 [MS5046]).
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109. Although this issue was raised in the written submissions it was not addressed
in any detail in oral submissions. It appears potentially relevant to the legality of the
approach adopted by the UK in 2005 and thereafter. There appear to the court to be
potential issues as to what may constitute, first, expulsion, second, resettlement
without consent and, third, transfer of responsibility; as to whether the Secretary of
State’s proposed treatment of the respondents amounts to any of these; and as to
whether the Secretary of State’s proposed treatment is in any event consistent with
the Convention, having regard to the unique relationship between the SBAs and the
Republic of Cyprus, but bearing in mind that the respondents do not consent to the
proposed treatment. The quality of the accommodation presently available to the
respondents is also an issue, and the court would invite submissions from both sides
as to the significance of that in the context of the issues in this case, and as to any
proposals which there may be to address it.
110. The court accordingly now invites submissions on all these points, and in
particular as to whether and how the Refugee Convention is capable of operating in
the context of the SBAs, and whether it was and is in the circumstances open to the
United Kingdom to satisfy its Convention obligations by arranging for facilities to
be available through co-operation with the Republic for refugees such as the
respondents who do not give their consent that the United Kingdom satisfy its
Convention obligations in this way.
(iv)(b) If such transfer of responsibility was permissible, was the 2005
“agreement” with the Republic a legally effective means of doing so, having
regard to its informality and the absence of incorporation into SBA law?
111. As indicated above, the court does not accept Mr Husain’s primary case that
the 2003 Memorandum was not “fit for purpose” even for those within its scope.
However, he raised a logically separate point as to the informality and tenuous
nature of any agreement to extend it to the respondents (Case paras 191ff). Again
this point was not developed in any detail in oral submissions. The court notes in
particular the formal and detailed nature of the 2003 Memorandum, which was also
incorporated into SBA law by the Refugee Ordinance so creating enforceable rights
and obligations under SBA law; and the lack of any equivalent legal formality in
respect of the respondents. It invites submissions on the significance of this
difference for the legal effectiveness of the 2005 agreement, and its consequences
in the present proceedings.
(iv)(c) Has the support of the Republic in accordance with the 2005 agreement
been available in practice, and can it be assured in the future?
112. Although this issue was not identified in the agreed statement of facts and
issues, it was the subject of detailed and strongly conflicting factual submissions on
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both sides, and addressed also in the UNHCR correspondence. There was a
disagreement as to whether it was an issue properly before the court, or, if not, how
if at all it should be resolved, and in what forum. The court invites further
submissions on this point.
(v) If the 2005 agreement, for whatever reason, was not a legally effective
means of discharging the United Kingdom’s obligations to the respondents
under the Convention, or if such support has not been available in practice,
what are the consequences, in terms of rights or remedies potentially available in
these proceedings, and how should the court give effect to them in its order?
113. The Refugee Convention creates obligations in international law. The
Convention is not part of the domestic law of the UK except to the limited extent
noted earlier in this judgment. The written and oral submissions of the parties were
largely directed to alleged breaches of obligations under the Convention. Mr
Husain’s argument proceeded on what he took to be the uncontested assumption that
“any decision regarding the entry of the respondents to the United Kingdom must
be consistent with the Refugee Convention” (Case para 11, relying on Asylum and
Immigration Appeals Act 1993 section 2, and R (European Roma Rights Centre) v
Immigration Officer at Prague Airport (United Nations High Comr for Refugees
intervening) [2005] 2 AC 1, para 41 per Lord Steyn).
114. However, as noted at the beginning of this judgment, the court considers that
the interaction of the Convention and domestic public law is a matter of some
importance and difficulty, both in this case and more generally. In particular it seems
necessary to consider the possible distinction between the direct application of
section 2 of the 1993 Act, and the application of general public law principles
(including the Launder principle: para 7 above). The court invites further
submissions on those matters, and on the remedies potentially available in the
present judicial review proceedings, including the matters which can be properly
taken into account in the exercise of its discretion.
Concluding comments
115. It may of course be that, with the benefit of this interim judgment, the parties
will be able reach agreement without further argument on the position of the
respondents, or at least on some of the above questions. So far as they remain in
dispute, we propose that the appeal should be relisted as soon as practically possible
for the hearing of argument on the further issues identified above. The Court would
hope that further evidence will not, at least at this stage, be required. However, if
there are matters which one or other party contends cannot fairly be determined by
this Court without further evidence, they should, before finalising their written cases
for any further hearing, identify to each other any further evidence that they might
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wish to adduce on such issues, setting it out in draft supported by affidavit. The
parties should in this connection be prepared to address the contents of the United
Nations High Commissioner’s letter of 16 June 2017, the Secretary of State’s
decision of 6 July 2017 and the letters of 7 July 2017 and 18 January 2018.
