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Under the rubric of the fresh decision, in addressing whether the respondents must be admitted to the UK for settlement the asad-khancourt said that the obligations of a state with responsibility for refugees cannot be “exported”. Since it was common ground that living conditions in Richmond Village are unsatisfactory, Irwin LJ remained unimpressed by the submission that the duty owed to the respondents may be met by letting them remain there. To do so was inconsistent with article 34 of the Convention because it is “possible” for the SSHD to admit them to the UK. As the court neatly explained:

  1. These Claimants cannot be assimilated and naturalized within this non-metropolitan territory of the United Kingdom, adopting the language of article 34.

The respondents’ presence in Dhekelia clearly breaches the Treaty of Establishment of the RoC, Appendix O which precludes purely civilian development within the SBAs and prohibits the new settlement of people other than for temporary purposes. Moreover, conflict also arises with restrictions on settlement imposed by Ordinance 5 of 1960 made by the Administrator of the SBAs under legislative powers conferred by the SBAs Order in Council 1960 which under s 5(2) preserves the effect of “law, and any rule of law”

Regarding “state practice”, the respondents placed reliance in the fact that in 1956 the Convention was extended to Jamaica which included the Turks and Caicos Islands and the Cayman Islands. Upon Jamaican independence in 1962, the Convention was never re-extended to these islands yet in 1966 the British Government expressly accepted that the Convention applied there. Even so, Irwin LJ found this “unpersuasive” because in his view “the fact that the official mind was Janus-faced cannot determine the law.”

Given his conclusion on the principal issue of the Convention’s application, Irwin LJ declined to address Foskett J’s conclusions as to how the SSHD might apply the “spirit” of the Convention, or as to any possible impact of the principle in Launder [1997] UKHL 20as approved in Kebilene [1999] UKHL 43. The court also rejected as academic any appeal from Foskett J’s judgment based on the argument derived from the CFR. It was similarly unnecessary to consider any arguments stemming from the ECHR, art 14.

Comment

Following Irwin LJ’s judgment, a fresh decision was made in July 2017 but admission to the UK was refused yet again to the respondents on the ground that they could resettle in the RoC or access public services and welfare from that country while remaining in the SBAs. Interestingly, Irwin LJ had rejected the respondents’ anticipatory argument that further refusal would constitute “constructive expulsion” within the meaning of the Convention, art 32. Instead, it would represent a repeated failure to meet the obligations owed by the UK.

Unsurprisingly, the Government is keen to show that the SBAs are not a backdoor for entry to the UK and Home Office ministers think that admitting the cohort of 29 refugees could be seen as setting a precedent which would encourage other migrants to try to use the SBAs as a route to enter the UK. This is so despite the MoD’s view that “we do not believe that we would be opening the floodgates were we to admit this handful of people into the UK.” If anything, the MoD finds itself in breach of the UK’s treaty obligations by permanently accommodating these refugees and UNHCR thinks that they are “solely the responsibility of the UK”.

However, unlike the respondents and their family members, not all 75 people aboard the ram-packed boat were really refugees. Most of them were Iraqi Kurds. Some were Ethiopian and Syrian and Tag Eldin Ramadan Bashir himself is Sudanese. Among the rescued souls was Layali Ibrahim who was born on the rickety fishing vessel and was only two days old when British forces airlifted her to safety. But sadly, along with her family members, Layali is classified as a failed asylum seeker. Almost twenty years later, she still lives in Richmond Village and dreams of studying medicine in England and living here.

Searching for safety and a better life, more than one million people from Africa and Asia arrived in Europe in 2015. The severity of the crisis swung the outcome of the 2016 referendum in favour of Brexit. Ultimately, no precedent on backdoor entry into the UK can be set by this case because upon joining the EU in 2004, Cyprus agreed with the UK to take responsibility for any asylum seekers who might enter the SBAs through Cypriot territory. One of the 29 recognised refugees was admitted to the UK but only because of marriage to a British citizen.

During the hearing it surfaced that since the adverse July 2017 decision, UNHCR has intervened afresh in October as to whether there is a “durable solution” to the difficulties presently confronting the respondents. The SSHD’s rejoinder is awaited in that regard. At the end of the hearing, perturbed by the respondents’ tough predicament, Lady Hale characterised these proceedings as an “anxious case”.

Please see Part One here.

This article was originally posted here.