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In her Christmas speech to British forces in Akrotiri, the prime minister celebrated the downfall of ISIS. Temporarily relieved asad-khanfrom 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 extends 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 art 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 the BIOT (Constitution) Order 2004, s 9 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:

  1. … 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:

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

Please see Part Two here.

This article was originally posted here.