R (Bashir & Ors) v Secretary of State for the Home Department [2018] UKSC 45 (30 July 2018)
In a complex interim judgment dealing with threshold issues, the Supreme Court has held that both the Refugee Convention 1951 and the 1967 Protocol extend to the UK’s Sovereign Base Areas (SBAs) of Akrotiri and Dhekelia. Britain occupied Cyprus between 1878 and 1960. Secretive deal making with the Ottoman Empire led the British Empire to forge an alliance with the Turks to protect them from Russia. The British initially occupied and administered Cyprus and ultimately annexed it upon the outbreak of the First World War when the British and the Turks found themselves fighting on opposite sides. Turkey recognised the annexation in the Treaty of Lausanne 1923 and that status continued until the settlement between the UK, Greece and Turkey in 1960 when Cyprus became a republic. Like Britain’s other Mediterranean possessions the island was of military and strategic importance rather than economic value. Upon independence in 1960, the UK retained sovereignty over the SBAs to accommodate military bases which are now the only notable British strategic assets in the eastern Mediterranean. These proceedings threw up a number of issues including the respondents’ entitlement to resettlement in the UK under the Convention, the validity of the UK-Cyprus Memorandum of Understanding of 2003 on illegal migrants and asylum seekers, and whether the UK is in principle entitled to discharge its obligations under the Convention by arranging for support to be provided by Cyprus?
The respondents were six refugees from various countries in North Africa and the Middle East and their family members. In 1998, they were rescued after being abandoned by human traffickers on a sinking vessel in the Mediterranean. Luckily, the RAF airlifted 75 passengers including the respondents to Akrotiri in south Cyprus where the respondents were recognised as Convention refugees. However, until now, they have lived in limbo for 20 years in Dhekelia where they occupy disused, dilapidated and hazardous military accommodation. They subsequently sought admission to the UK in 2013 but in November 2014 they were refused entry and judicial review proceedings were instituted. Initially, Foskett J held that the SBAs fall outside the Convention’s scope because of the binding authority of Bancoult (No 2) [2008] UKHL 61 but he quashed the decision because of a failure to take UNHCR’s concerns into account that resettling the respondents in the Republic of Cyprus (RoC) was undesirable and impractical. However, the Court of Appeal reversed Foskett J’s finding on the extension of the Convention to the SBAs and Irwin LJ directed the SSHD to make a fresh decision on whether to admit the respondents to the UK. Now, in answering a question of “great general importance” the apex court has held that the Convention does not guarantee freedom of movement for refugees between a state’s dependent territory and its mainland.
Background
The respondents have no right to entry into the UK under the Immigration Rules. There is discretion to admit them outside the rules but the executive’s policy is to refuse to exercise this discretion in favour of those who have no existing connection with the UK. Despite persuasion from the SBA Administration, UK ministers stopped their resettlement in the UK. The respondents nonetheless argue that their admission to the UK is the only practicable way for the UK to discharge the duty owed to them under the Convention.
The 1967 Protocol extended the principal provisions of the Convention to all refugees regardless of when the events occurred which caused them to leave their home countries. The UK was an original signatory of the Convention and ratified it on 11 March 1954 and later acceded to the Protocol on 4 September 1968. Notably, article 40 of the Convention contains a “colonial clause” and article 40(1) provides that any state may, at the time of signature, ratification or accession, declare that the Convention shall extend to all or any of the territories for the international relations of which it is responsible.
Prior to Cypriot independence, the UK notified the UN Secretary-General on 24 October 1956 that, subject to certain reservations, the Convention would be extended to Cyprus. After independence, Cyprus notified the Secretary-General in 1963 that it had acceded to the Convention and in 1968 to the Protocol. Intriguingly, no notification has ever been made by exclusively in relation to the SBAs after Cyprus’s independence. Asfaw [2008] UKHL 31 confirmed that as a whole the Convention has never been formally incorporated or given effect in domestic law. Limited statutory effect in domestic law is given to the Convention and section 2, which prevents the Immigration Rules from contradicting the Convention, of the Asylum and Immigration Appeals Act 1993 was relevant to the present appeal. Foskett J found that a failure to correctly apply the Convention may have consequences in domestic public law, as per the principle in Launder [1997] UKHL 20.
On 20 February 2003 the UK and Cyprus entered into a Memorandum of Understanding, which did not apply retrospectively, relating to “illegal migrants and asylum seekers” whereby the full range of governmental services are to be provided to refugees by Cyprus but at the UK’s expense. Thereafter, the SBA Administrator had enacted the Refugee Ordinance 2003 to give effect within the SBAs to rights significantly mirroring those conferred by the Convention. The UK argues that in 2005 an unwritten deal was struck between RoC and the SBA Administration so that the latter would deal with refugees recognised as such by it in accordance with the 2003 Memorandum regardless of when they arrived in the SBAs.
The Supreme Court
Lady Hale and Lords Mance, Kerr, Wilson, Sumption, Reed and Carnwath gave an interim judgment which was final as to the first three issues covered but interim on the fourth and fifth issues which will have to be decided before the appeal can be finally determined.
The Justices found 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. Therefore, in fairness to the parties and so as to reach a fully informed decision, the court invited further submissions on the matters identified in the interim judgment.
(i) Convention’s Applicability to the SBAs
As to whether the Convention (as extended by the 1967 Protocol) applies to the SBAs, the court held that until 1960 it unquestionably applied to the territory now comprised in the SBAs. The central question was whether the political separation of the SBA territory from the rest of Cyprus had ended its application there. Although the only mode of termination expressly provided for in the Convention is denunciation, the UK had not denounced the Convention.
Legal commentators are clear that treaty obligations may come to an end as a result of a sufficiently radical change in the international status of a territory. In particular, treaty obligations cease to apply to a territory where it secedes from the state which entered into the treaty, or for example where a formerly dependent territory becomes independent from the parent state which entered into the treaty. However, the International Law Commission opines some legal incidents may attach to an antecedent treaty because it “establishes a legal nexus between the territory and the treaty” such that a successor state will be bound by it. Indeed, the broader rule in international law controversially attaches treaty obligations to territories instead of the international persons responsible for them.
The court was invited to overrule Bancoult (No 2) [2008] UKHL 61 where the House of Lords answered in the affirmative the question whether the ECHR applied in the British Indian Ocean Territory (BIOT) because of the Convention’s extension to the then colonies of Mauritius and the Seychelles in 1953 under a similar colonial clause.
However, Bancoult (No 2), concerned the constitutional and international status of the BIOT which is materially different from that of the SBAs. Therefore opining that the Cyprus Act 1960 did not alter the status of the SBAs but merely excluded them from the transfer of territory to the new RoC when it became independent, the Justices stated:
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.
The BIOT was reconstituted from parts of two other colonies, namely Mauritius and the Seychelles, to make a third colony with a different international status to which the UK had different international responsibilities, especially in relation to the US. Losing the majority of Cyprus’s territory did not change the status for the minute parts it retained. Observably, article VII(4) of the 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.
On the facts, since no contrary notification was made to the Secretary-General, no further declaration was needed to extend the Protocol to dependent territories where the original Convention applied. The UK acceded to the Protocol without any reservation relating to the SBAs. Accordingly, since the Convention continued to apply to the SBAs after 1960, the Protocol applies there also.
(ii) Entitlement to Resettlement in the UK
The Supreme Court held that the terms of the Convention do not entitle the respondents to be resettled in the UK metropolitan territory. Overall, a state’s duties to a refugee reaching a particular territory – whose international relations the state controls – are in principle and in normal circumstances limited to providing and securing the refugee’s Convention rights in that context.
The court approved of the point 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 generally the widespread use of colonial clauses in international treaties reflects one of the “basic principles of international law” with the result:
76. … 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.
Article 40 permits any Contracting State 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. The Convention, similar to many multilateral treaties, was framed to apply only to a state’s “home country” or “metropolitan territory” unless extended to other territories under article 40 which suggests that a state’s metropolitan territory and dependent territories need to be treated as separate units. Overall, articles 15, 17 to 24, 26, 19, 32 and 34 are indicative that the metropolitan territory is conceptually different and is to be treated as distinct.
The Supreme Court did not construe article 26 (freedom of movement) to mean that a refugee had a right to move between all or any of a state’s metropolitan and overseas territories, subject only to such constraints as might affect an alien. In that regard, the Justices agreed with Foskett J and they disagreed with Irwin LJ who not only thought that article 26 applied without limitation across all of any state’s territories, but further held in error that the limitation by reference to aliens could simply be avoided or essentially be erased on the ground that a refugee’s circumstances are different from those of an alien.
(iii) The Memorandum of Understanding 2003
The court rejected the respondents’ submission that the 2003 Memorandum was not a proper basis for the provision of the support for refugees required by the Convention. Pointing out the uniquely close practical links between the SBAs and Cyprus, the court further observed that the Convention does refer to the appropriate treatment of refugees in a state’s territory and the provision of facilities to refugees there. On the other hand, the Justices stated that:
94. 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.
The Convention is interpreted applying the principles in the Vienna Convention on the Law of Treaties 1969 (VCLT) which under article 31(1) requires a treaty to be interpreted in good faith, applying the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. In light of the Case concerning the Gabčíkovo-Nagymaros Project [1997] ICJ Rep 7, international courts and tribunals will dynamically – i.e. “not [as] static” as “open to adapt to emerging norms of international law” – interpret a treaty in line with this obligation and they will try to place the factual situation as it has evolved since the treaty’s inception within the context of the preserved and developing treaty relationship so as to achieve its object and purpose in so far as that is feasible.
Moreover, in the famous Ijzeren Rijn Arbitration, the approach was used to support the proposition that “an evolutive interpretation” ensuring an application of the treaty promoting the effectiveness of its object and purpose is preferable “to a strict application of the intertemporal rule”. The “principle of effectiveness” in support of a “dynamic and evolutive approach to a treaty” was the right course. Accordingly, subject to issues about the precise interpretation of certain articles, the court said that it did not object in principle to some, most or all of the supporting facilities required for refugees being provided by co-operative and effective arrangements with the RoC. It said that the more difficult issues are as to its application to those already accepted as lawful refugees.
Issues (iv) and (v)
The court left these issues for future determination and further submissions and it said that the parties may be able to reach agreement without further argument on those issues. If not the appeal should be relisted for further submissions as soon as practicable. In the present case and more generally, the interaction of the Convention and domestic public law is an important and difficult matter.
Overall, the respondents relied mainly on the point that any decision regarding their entry to the UK must be consistent with the Refugee Convention as specified in section 2 of the 1993 Act and R (European Roma Rights Centre) [2004] UKHL 55. However, as the court observed, it is 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.
Comment
The respondents must have surely preferred Irwin LJ’s view that no justification exists for any future decision which leaves their suffering unresolved for any further length of time. He thought that it was appropriate for the court to direct a timetable for a fresh decision and he held that he “would regard it as unreasonable and a failure of the obligations to the refugees if resettlement was not achieved rapidly.”
The Supreme Court’s decision must have disappointed the respondents because even after living in limbo for 20 years their fate is still uncertain. The interim judgment appears to be a boon to the government because in the past the rigid ministerial stance has been not to support relocation to the UK because “this is not on politically”.
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