R (on the application of Bashir & Ors) v Secretary of State for the Home Department [2018] UKSC 45

Six refugees airlifted to UK Sovereign Base Areas in Cyprus in 1998 sought resettlement in the UK. The Supreme Court held that the Refugee Convention applies to the SBAs but does not entitle refugees to relocate to the UK's metropolitan territory.

Facts

The six respondents are refugees from North Africa and the Middle East who, in October 1998, were rescued from a foundering ship off Cyprus and airlifted by RAF helicopters to Akrotiri, a UK Sovereign Base Area (SBA). Since 2000 they have lived in highly unsatisfactory disused military accommodation at Richmond Village in the Dhekelia SBA, conditions described as ‘quite unacceptable’ and containing asbestos in ‘potentially harmful quantities and form’. Between 1999 and 2000 each was formally declared entitled to refugee status under the 1951 Refugee Convention and 1967 Protocol.

The SBAs were retained under UK sovereignty when Cyprus became independent in 1960 and exist primarily as military bases. The UK had extended the Refugee Convention to Cyprus by notification under Article 40(2) in 1956. In 2003 the UK and Republic of Cyprus signed a Memorandum of Understanding under which the Republic would provide services (welfare, health, education, work permits) to refugees recognised in the SBAs after 1 May 2004, with the UK indemnifying costs. An informal 2005 agreement purportedly extended this arrangement to those, like the respondents, who arrived earlier. The respondents have refused to engage fully with the Republic, considering themselves the responsibility of the UK.

By letter of 25 November 2014, the Home Office refused entry to the UK. Foskett J quashed that decision; the Court of Appeal upheld the quashing on different grounds, holding the Convention applied to the SBAs. The Secretary of State took a fresh decision on 6 July 2017, again refusing entry.

Issues

The Supreme Court identified several questions, addressing the following in this interim judgment:

• Whether the Refugee Convention (as extended by the 1967 Protocol) applies to the SBAs;
• Whether the Convention by its terms entitles the respondents to be resettled in the UK;
• Whether the 2003 Memorandum of Understanding was a valid performance of Convention obligations for those within its scope.

Other issues (concerning the 2005 agreement, the legality of arranging support without consent, practical availability of Republic support, and remedies) were deferred for further submissions.

Arguments

Respondents

The respondents, represented by Raza Husain QC, contended that the Convention applied to the SBAs by virtue of the UK’s 1956 declaration, and that they were entitled to resettlement in the UK relying on Articles 26, 32 and 34. They argued that resettlement of lawfully present refugees in another contracting state’s territory without consent was impermissible, citing Professor Hathaway’s analysis of the limited ‘window of opportunity’ for non-consensual resettlement. They contended the 2003 Memorandum was ‘unfit for purpose’.

Secretary of State

The Secretary of State, represented by James Eadie QC, argued the SBAs constituted a new international entity created in 1960 to which no Convention declaration had been made, with refugees treated only ex gratia under the ‘spirit’ of the Convention. The UK could fulfil its obligations through cooperative arrangements with the Republic of Cyprus given the unique interdependence between the SBAs and the Republic.

Judgment

Application of the Convention to the SBAs

The Court held the Convention continues to apply to the SBAs by virtue of the 1956 declaration. Distinguishing R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, the Court emphasised that the Cyprus Act 1960 did not alter the status of the SBAs but merely excluded them from territory transferred to the new Republic. Unlike the BIOT Order 1965, the Sovereign Base Areas Order 1960 did not constitute the SBAs as a new colony; it merely organised internal administration. The international status of the SBAs vis-à-vis third states was unchanged. This accorded with the UK Foreign Office’s own position that ‘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’. As the UK acceded to the 1967 Protocol without reservation regarding the SBAs, the Protocol applied there too.

No entitlement to resettlement in the UK

The Court rejected the contention that the Convention entitled the respondents to enter the UK. Article 40 demonstrated that for Convention purposes, metropolitan and dependent territories are treated as separate units, with potentially different reservations applying. Article 26 (freedom of movement) was directed to movement within a particular territory subject to regulations applying to aliens generally in the same circumstances; it did not confer a right to move between metropolitan and overseas territories. Article 19(2), conferring on liberal professionals an exceptional privilege of ‘best endeavours’ to settle them in another territory, would be redundant if all refugees enjoyed such a right. Article 32 protected against forced removal but conferred no positive right to move elsewhere. Article 34 (assimilation and naturalisation) did not override the distinction between metropolitan and overseas territories. The Court of Appeal’s contrary reading of Articles 26 and 34 was ‘mistaken’.

The Court concluded that a State’s duties under the Convention to a refugee reaching a particular territory are ‘in principle and in normal circumstances limited to providing and securing the refugee’s Convention rights in the context of that territory’.

Validity of the 2003 Memorandum

Although not directly applicable to the respondents, the Court rejected challenges to the 2003 Memorandum’s validity for those within its scope. Given the ‘almost uniquely close practical links’ between the SBAs and the Republic, evidenced by the Treaty of Establishment 1960 and the operational realities described in evidence (the SBAs lacking the resources to operate as a welfare state and depending on Republic services), there was no objection in principle to Convention obligations being fulfilled through cooperative arrangements with the Republic. Adopting an evolutive approach to treaty interpretation under Article 31 VCLT, and citing the Gabčíkovo-Nagymaros and Iron Rhine awards, the Court found the Memorandum a proper basis for support, rejecting Mr Husain’s submissions on paragraphs 10, 12, 18 and 19.

Issues deferred

The Court deferred determination of: whether the UK could lawfully arrange Republic support for the respondents without their consent given their lawful presence since 2000 (referencing Hathaway’s analysis of the narrow ‘window of opportunity’ before Article 32 protection crystallises); the legal effectiveness of the informal 2005 agreement, never reduced to writing or incorporated into SBA law; whether Republic support has been and remains practically available; and the interaction of the Convention with domestic public law (including section 2 of the Asylum and Immigration Appeals Act 1993 and the Launder principle).

Implications

The decision clarifies, in a context of considerable importance to UK overseas territories, that the territorial application of multilateral treaties depends on the constitutional changes affecting the territory in question. The mere loss of surrounding territory by the parent state does not change the international status of the retained portion. Bancoult (No 2) remains good law on its facts but is confined to genuine reconstitutions creating new political entities.

For refugee law, the judgment establishes that a refugee reaching a UK overseas territory to which the Convention has been extended acquires no automatic right of entry to the UK metropolitan territory. The Convention treats metropolitan and dependent territories as distinct units, and Articles 26, 32 and 34 do not confer cross-territorial rights of relocation. This significantly limits the avenues by which refugees in remote UK overseas territories may claim admission to the UK proper.

The decision also recognises that Convention obligations may, in principle, be discharged through cooperative arrangements with a neighbouring state, particularly where there are exceptional practical interdependencies (as between the SBAs and the Republic of Cyprus). However, the judgment leaves open critical questions about the limits of such arrangements where refugees are already lawfully present and refuse consent, the legal formality required for such arrangements, and their practical efficacy. The Court also flagged for further argument the unresolved question of how Convention obligations interact with domestic public law given that the Convention is not generally incorporated into UK law (per Lord Bingham in R v Asfaw [2008] AC 1061).

The Court expressed regret at the protracted nature of the proceedings and noted, as common ground, that the respondents’ present conditions are ‘quite unacceptable’, leaving open the significance of accommodation quality for the remaining issues. The judgment is consciously interim, with the appeal to be relisted for argument on the deferred issues.

Verdict: Interim judgment. The Supreme Court held that (i) the Refugee Convention (as extended by the 1967 Protocol) applies to the Sovereign Base Areas by virtue of the United Kingdom’s 1956 declaration; (ii) the Convention does not by its terms entitle the respondents to be resettled in the United Kingdom; and (iii) the 2003 Memorandum of Understanding was a proper basis for the UK to discharge its Convention obligations to refugees within its scope through cooperative arrangements with the Republic of Cyprus. Further issues, including the legal effect of the informal 2005 agreement extending the Memorandum to the respondents without their consent, the practical availability of Republic support, and the interaction of the Convention with domestic public law remedies, were deferred for further submissions before final disposal of the appeal.

Source: Bashir & Ors, R (on the application of) v Secretary of State for the Home Department [2018] UKSC 45