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On the small tract of land that remains of Britain’s colony of Cyprus, six families of refugees are housed. This was intended to be a temporary solution; but 19 long years have passed since their arrival, and the situation remains unchanged.

If their accommodation ever was fit for human habitation, it certainly is no longer. It is increasingly overcrowded, dilapidated, and unsafe; the families are exposed to broken asbestos panels and live electrical wires, and rats and snakes are frequently found inside.

Beyond their four walls there are few opportunities to exercise the rights contained within the UN Refugee Convention: there are ‘no practical employment opportunities’; the support and educational services available to the children are limited; and there is no meaningful society into which they can integrate.

The cumulative effect of this on the families is pronounced. In 2013 the UNHCR expressed serious concern about their ‘precarious mental health’, and an independent social worker assessed that hopelessness was endemic.

It is indisputable that this situation is prima facie in breach of the Convention. As stated by Foskett J in the High Court, it is ‘common ground’ that the full range of rights cannot be secured in the SBAs. Yet the families remain locked in a protracted legal battle; one which last month reached the UK Supreme Court.

How can this be justified?

The Secretary of State’s justification for the situation is two-fold. Firstly, it is argued that the Refugee Convention simply does not extend to the SBAs, because they are so different to the colony from which they derived that they must be considered a ‘new political entity’. Thus, the 1956 extension of the Refugee Convention to Cyprus no longer applies.

Secondly, it is maintained that the UK would not be in breach regardless. This is either because the families have the option of relocating to the Republic of Cyprus, where their rights would be satisfied; or because the Republic has agreed to ‘import’ the rights that the UK cannot uphold within the SBAs, even if the families remain located in the same place.

The decisions so far

On the first issue, the courts below were necessarily bound by the principle espoused by the House of Lords in R v Bancoult (no 2) [2009] 1 AC 453: that declarations of application attach not to the land which is contained in the territory of the signatory state, but instead to the ‘political entities’ about which the declaration is made; with the result that a declaration lapses whenever a ‘new political entity’ is formed.

The High Court and Court of Appeal took divergent approaches to the application of this test. Foskett J at first instance appeared to look holistically at all the circumstances in concluding that the SBAs were a ‘new political entity’, putting great weight on the marked differences with the Colony of Cyprus: the change to a predominantly military purpose; the substantial reforms to its internal political arrangements; and the reductions in size and population.

Conversely, the Court of Appeal held that the legal context was paramount. It was true, said Lord Justice Irwin, that there had been significant alteration to the size and internal arrangements of the territory. But the fact that the SBAs were constitutionally and politically ‘a continuation of what had gone before’ meant that they were the same entity, and that the Convention still applied.

That the SBAs were legally a continuation of the Colony of Cyprus was confirmed by comparison with the situation in Bancoult. There, parts of two wholly separate colonies had been grafted together to form the BIOT. What’s more, the UK had exercised their inherent power to enact constitutional change, by classifying the BIOT in the Order which created it as a ‘separate colony’. In contrast, the Cyprus Act 1960, s 2(1)(a) explicitly stated that ‘nothing in the foregoing section shall affect Her Majesty’s sovereignty or jurisdiction’ over what remained.

The courts also differed on the question of breach. Foskett J was clearly sympathetic to the suggestion of the Secretary of State that the UK would be in compliance with the Convention if they continued to house the families in the SBAs, but transferred the responsibility for securing their other rights to another signatory state. Provided that second state had consented to meeting the ‘essential minimum requirements’ in the Convention, he stated that it would be ‘difficult to see’ why the UK would be in breach.

Whilst the Court of Appeal stopped short of ordering relocation, they strongly hinted that it was the only tenable option. In doing so, they rejected the notion that obligations could be ‘exported’, and found that (at the very least) compliance with the art 34 obligation to facilitate assimilation and naturalisation ‘as far as possible’ would likely be unattainable in the SBAs, because of the lack of any meaningful society.

Please see Part Two here.