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(ii) Entitlement to Resettlement in the UKasad-khan

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:

  1. … 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.

Art 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 art 40 which suggests that a state’s metropolitan territory and dependent territories need to be treated as separate units. Overall, arts 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 art 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 art 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:

  1. 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 art 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 s 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 s 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”.

Please see Part One here.

This article was originally posted here.