Case Preview: Bashir and Others v SSHD

In her Christmas speech to British forces in Akrotiri, the prime minister celebrated the downfall of ISIS. Temporarily relieved from the turbulence of domestic and European politics, a triumphant Theresa May stressed that British military bases in Cyprus – the epicentre of thousands of strategic sorties – were central to defeating jihadists entrenched in Iraq and Syria. Just days before the victory speech, Lady Hale and Lords Mance, Kerr, Wilson, Sumption, Reed and Carnwath heard the SSHD’s appeal on the intriguing question whether the Refugee Convention 1951 the 1967 Protocol extend to the UK’s Sovereign Base Areas (SBAs) of Akrotiri and Dhekelia. And, if so, whether the SSHD is required to admit Tag Eldin Ramadan Bashir and five other refugees and their families to the UK for settlement. Under a secret agreement in 1878, in order to thwart rising Russian aggression the declining Ottoman Empire deliberately ceded Cyprus’s governance to Great Britain which “occupied and administered” the island until 1914 and ultimately annexed it as a colony upon the outbreak of the First World War. The Treaty of Lausanne 1923 recognised the colony and that status continued until the constitutional settlement of 1960. The SBAs are military zones retained under British sovereignty following the independence of the Republic of Cyprus (RoC) in 1960.

The respondents were rescued in the Mediterranean from a dangerous Lebanese fishing boat en route to Italy. Human traffickers, who charged $2000 per person for the journey, abandoned the “floating coffin” vessel when the engine broke down. But luckily the respondents were airlifted to Akrotiri in 1998 and were recognised as Convention refugees shortly thereafter. But until now they have lived in limbo in Dhekelia where they occupy disused, dilapidated and hazardous military accommodation called Richmond Village. In 2013, they sought admission to the UK. But in November 2014 the SSHD refused them entry and judicial review proceedings were instituted. Despite holding that the SBAs fall outside the Convention’s scope because of the binding authority of Bancoult (No 2) [2008] UKHL 61, Foskett J quashed the decision because of a failure to take UNHCR’s concerns into account that resettling the respondents in RoC was undesirable and impractical. He was unconvinced that the FCO had a practice of recognising that international treaties applicable to Cyprus before 1960 continued to apply to the SBAs after their inception.

Despite some evidence relating to some conventions, there was insufficient evidence to demonstrate a widespread and consistent state practice. The CFR failed to change the result and it followed that as a matter of law the Convention did not apply to the SBAs and its non-application was not a violation of article 34 which requires facilitating the “assimilation” and “naturalization” of refugees as far as possible. Conferring refugee status on the respondents did not warrant their entry to the UK because the test of applying the spirit of the Convention was met if full Convention rights were secured by arrangement with RoC.

The Court of Appeal

However, by directing the SSHD to make a fresh decision on whether to admit the respondents to the UK, Irwin LJ reversed Foskett J’s finding on the extension of the Convention to the SBAs. Briggs and Jackson LJJ concurred.

As a matter of public international law, Irwin LJ held that the Convention applies directly to those parts of the colony of Cyprus which continued, with the status of colony or British Overseas Territory, as the SBAs. The public international law obligations of the British Government had to be taken to have continued because the SBAs were a continuing political entity rather than a new political entity within the test in Bancoult (No 2) regarding whether an existing extension survived constitutional change to a colony. Memorably, Bancoult (No 2) concerned the validity of the “no right of abode” provision in section 9 of the BIOT (Constitution) Order 2004 and the legality of the forced removal of the native inhabitants of the Chagos Islands to make way for the American military base in Diego Garcia.

“New political entity” was a difficult phrase to apply and needed to be considered in the context of the obligation of a state in public international law, not just in a general sense. Cases such as Treatment of Polish Nationals in Danzig (1932) PCIJ, Ser A/B No 44 and the Greco-Bulgarian Communities (1930) PCIJ Ser B No 17 established that international law does not take cognizance of domestic constitutional arrangements. Moreover, significant historical events such as Algeria’s independence from France and Germany’s unification with Austria guided Irwin J to the conclusion that:

51. … Clearly a state may go through enormous political and constitutional change, and indeed a radical change of territory, without shedding its international obligations.

The SSHD needed to take a fresh decision on the basis that the Convention applied directly and the UK owed a direct obligation to the respondents by operation of public international law. The outcome of that decision needed to concentrate on historical matters. But equally the decision needed to be taken in relation to the current facts, key among which was the enormous delay affecting the respondents. No justification existed for any future decision which left their suffering unresolved for any further length of time. Irwin LJ thought that it was appropriate for the court to direct a timetable for the fresh decision and his Lordship held:

85. … I would regard it as unreasonable and a failure of the obligations to the refugees if resettlement was not achieved rapidly.

Under the rubric of the fresh decision, in addressing whether the respondents must be admitted to the UK for settlement the court said that the obligations of a state with responsibility for refugees cannot be “exported”. Since it was common ground that living conditions in Richmond Village are unsatisfactory, Irwin LJ remained unimpressed by the submission that the duty owed to the respondents may be met by letting them remain there. To do so was inconsistent with article 34 of the Convention because it is “possible” for the SSHD to admit them to the UK. As the court neatly explained:

82. These Claimants cannot be assimilated and naturalized within this non-metropolitan territory of the United Kingdom, adopting the language of article 34.

The respondents’ presence in Dhekelia clearly breaches Appendix O of the Treaty of Establishment of the RoC which precludes purely civilian development within the SBAs and prohibits the new settlement of people other than for temporary purposes. Moreover, conflict also arises with restrictions on settlement imposed by Ordinance 5 of 1960 made by the Administrator of the SBAs under legislative powers conferred by the SBAs Order in Council 1960 which under section 5(2) preserves the effect of “law, and any rule of law”

Regarding “state practice”, the respondents placed reliance in the fact that in 1956 the Convention was extended to Jamaica which included the Turks and Caicos Islands and the Cayman Islands. Upon Jamaican independence in 1962, the Convention was never re-extended to these islands yet in 1966 the British Government expressly accepted that the Convention applied there. Even so, Irwin LJ found this “unpersuasive” because in his view “the fact that the official mind was Janus-faced cannot determine the law.”

Given his conclusion on the principal issue of the Convention’s application, Irwin LJ declined to address Foskett J’s conclusions as to how the SSHD might apply the “spirit” of the Convention, or as to any possible impact of the principle in Launder [1997] UKHL 20 as approved in Kebilene [1999] UKHL 43. The court also rejected as academic any appeal from Foskett J’s judgment based on the argument derived from the CFR. It was similarly unnecessary to consider any arguments stemming from article 14 of the ECHR.

Comment

Following Irwin LJ’s judgment, a fresh decision was made in July 2017 but admission to the UK was refused yet again to the respondents on the ground that they could resettle in the RoC or access public services and welfare from that country while remaining in the SBAs. Interestingly, Irwin LJ had rejected the respondents’ anticipatory argument that further refusal would constitute “constructive expulsion” within the meaning of article 32 of the Convention. Instead, it would represent a repeated failure to meet the obligations owed by the UK.

Unsurprisingly, the government is keen to show that the SBAs are not a backdoor for entry to the UK and Home Office ministers think that admitting the cohort of 29 refugees could be seen as setting a precedent which would encourage other migrants to try to use the SBAs as a route to enter the UK. This is so despite the MoD’s view that “we do not believe that we would be opening the floodgates were we to admit this handful of people into the UK.” If anything, the MoD finds itself in breach of the UK’s treaty obligations by permanently accommodating these refugees and UNHCR thinks that they are “solely the responsibility of the UK”.

However, unlike the respondents and their family members, not all 75 people aboard the ram-packed boat were really refugees. Most of them were Iraqi Kurds. Some were Ethiopian and Syrian and Tag Eldin Ramadan Bashir himself is Sudanese. Among the rescued souls was Layali Ibrahim who was born on the rickety fishing vessel and was only two days old when British forces airlifted her to safety. But sadly, along with her family members, Layali is classified as a failed asylum seeker. Almost twenty years later, she still lives in Richmond Village and dreams of studying medicine in England and living here.

Searching for safety and a better life, more than one million people from Africa and Asia arrived in Europe in 2015. The severity of the crisis swung the outcome of the 2016 referendum in favour of Brexit. Ultimately, no precedent on backdoor entry into the UK can be set by this case because upon joining the EU in 2004, Cyprus agreed with the UK to take responsibility for any asylum seekers who might enter the SBAs through Cypriot territory. One of the 29 recognised refugees was admitted to the UK but only because of marriage to a British citizen.

During the hearing it surfaced that since the adverse July 2017 decision, UNHCR has intervened afresh in October as to whether there is a “durable solution” to the difficulties presently confronting the respondents. The SSHD’s rejoinder is awaited in that regard. At the end of the hearing, perturbed by the respondents’ tough predicament, Lady Hale characterised these proceedings as an “anxious case”.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 14, Asylum, Brexit, CFR, Court of Appeal, ECHR, Human Trafficking, International Law, Italy, Judicial Review, Persecution, Politics, Refugee Convention, Settlement, UKSC and tagged , , , , , , , , . Bookmark the permalink.

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