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On appeal from: [2017] EWCA Civ 397

This appeal considered whether the 1951 Convention relating to the Status of Refugees and the 1967 Protocol extend to the UK’s Sovereign Base Areas of Akrotiri and Dhekelia; and, if so, whether the appellant is required to admit the respondents to the UK for settlement.

The Supreme Court gave an interim judgment, having given a final determination as to issues (i)-(iii)), but interim on issues (iv)-(v) which require final determination. Certain critical and difficult issues had not been clearly identified in the agreed statement of facts and issues, nor adequately covered by the written or oral submissions. In fairness to the parties and in order to reach a fully informed conclusion, the Court invited further submissions on the matters identified in the interim judgment.

The five issues to be determined were:

(i) Does the Convention (as extended by the 1967 Protocol) apply to the SBAs?

(ii) Does the Convention by its terms entitle the Respondents to be resettled in the UK?

(iii) Was the Memorandum of Understanding of 2003 a valid performance of the Convention obligations for those within its scope? In particular: a. Was the UK in principle entitled to fulfil its obligations under the Convention by arranging for support to be provided by Cyprus? b. If so, were the terms of the Memorandum of Understanding (including the 2003 Refugee Ordinance) a proper basis on which to do so?

(iv) If the answer to (iii) is ‘yes’: a. Was the UK entitled in 2005 to make the same arrangements in respect of the Respondents without their consent given their lawful and accepted presence as refugees in the SBAs since 2000 (it being accepted that the Respondents are entitled to continue to live in the SBAs [107])? b. If so, was the 2005 ‘agreement’ with Cyprus a legally effective means of doing so, having regard to its informality and the absence of incorporation into SBA law? c. Has the support of Cyprus for the Respondents in accordance with the 2005 agreement been available in practice, and can it be assured in the future?

(v) If the 2005 agreement, for whatever reason, was not a legally effective means of discharging the UK’s obligations to the Respondents under the Convention, or if such support has not been available in practice, what are the consequences, in terms of rights or remedies potentially available in these proceedings, and how should the court give effect to them in its order?

With regards to issue (i) it was held that, as a matter of international law the Convention continues to apply to the SBAs by virtue of the declaration in 1956, in the same way it applied to the colony of Cyprus before 1960. Article VII(4) of the Protocol provides that where a state made a declaration under  art 40(1) or (2) of the Convention extending its application to a territory for whose international relations it was responsible, and then acceded to the Protocol, the declaration should apply to the Protocol also, unless that state notified the Secretary-General to the contrary. No further declaration was required to extend the Protocol to dependent territories where the original Convention applied. The UK acceded to the Protocol without any reservation relating to the SBAs. Since the Convention continued to apply to the SBAs after 1960, the Protocol applies there also [71].

As per issue (ii) the Convention does not entitle the respondents to be resettled in the UK metropolitan territory. A state’s duties under the Convention to a refugee reaching a particular territory for whose international relations the state is responsible are in principle and in normal circumstances limited to providing and securing the refugee’s Convention rights in that context [89]. The widespread use of colonial clauses in international treaties reflects the principle 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 [76]. Like many multilateral treaties, the Convention was framed to apply only to a state’s ‘home country’ or ‘metropolitan territory’ unless extended to other territories under art 40 [78]. Art 40 suggests that for the purposes of the Convention the metropolitan territory and its dependent territories are to be treated as separate units [80].

In regards to issue (iii) 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 [103]. There are uniquely close practical links between the SBAs and Cyprus [91-93]. The Convention does refer to the appropriate treatment of refugees in a State’s territory and the provision of facilities to refugees there. But nothing in the Convention is expressly directed to a situation like that which exists in Cyprus and nothing in it is expressly inconsistent with the nature of the arrangements which the UK has made with Cyprus [94]. International courts and tribunals will interpret a treaty in line with art 31(1) of the Vienna Convention on the Law of Treaties. They will endeavour to place the factual situation as it has developed since the inception of the treaty within the context of the preserved and developing treaty relationship in order to achieve its object and purpose in so far as that is feasible [95]. Subject to issues about the precise interpretation of certain articles, the court does not find objection in principle to some, most or all of the supporting facilities required for refugees being provided by co-operative and effective arrangements with the Republic.

Finally, issues (iv) and (v) were left for future determination and further submissions.

For judgment, please download: [2018] UKSC 45
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (18 Dec 2017 morning session) (18 Dec 2017 afternoon session) (19 Dec 2017 morning session) (19 Dec 2017 afternoon session)