R (Bashir) v Secretary of State for the Home Department  EWCA Civ 397
The British Sovereign Base Areas (“SBAs”) are small British-run areas on the Cyprus islands that survived the former colony’s independence. The Home Office has taken the position for a number of years that the Refugee Convention does not apply there. The Court of Appeal has unanimously held that in doing so, then-Home Secretary Theresa May acted unlawfully in denying refugees from the SBAs access to the UK.
The claimants had been rescued from a fishing boat in the Mediterranean in 1998. They had been taken to one of the British Sovereign Base Areas in Cyprus.
The UK has accepted for many years that the Claimants are refugees within the meaning of the Refugee Convention.
The claimants lived in deteriorating living conditions for 18 years, accommodated in ex-military buildings.
In 2014 the Home Secretary refused the Claimants admission to the UK. This was because they had no ties to the UK and there were no reasons for treating them exceptionally. The refusal letter explained that relocating from the SBAs to Cyprus, rather than the UK, was a “demonstrable…and durable decision.”
This decision was quashed in the High Court. This was not because the Refugee Convention applied as a matter of public international law. Rather, the UK government had adopted a policy to apply the Refugee Convention in the SBAs, and were therefore required to act within the spirit of the Refugee Convention.
Question for the Court
The central question addressed by the Court was whether the United Nations Convention relating to the Status of Refugees (1951) (“the Refugee Convention”) applies to the SBAs. If so, the families would have to be permitted to come to Britain, because obligations arising under the Refugee Convention cannot be discharged within the SBAs.
The SBAs in public international law
It was common ground between the parties what the Refugee Convention was extended to the British colony of Cyprus with effect from 23 January 1957. The point in issue was whether that application survived the creation of the Republic of Cyprus, and the exclusion of the SBAs from the territory of the new Republic.
The test for whether an existing extension of a Convention survives constitutional change to a colony is to be found in R (Bancoult) v SSFCA (No 2)  UKHL 61. The question is whether or not the constitutional change represents the creation of a “new political entity.”
The Court engaged in a detailed examination of the constitutional history of the Republic of Cyprus and its founding Treaty. The Court found that the Treaty expressly preserved the UK’s international obligations.
The Court also found that notwithstanding the existence of arrangements designed to harmonise relations with the Republic, the exercise of sovereignty over the SBAs was firmly retained by the United Kingdom.
Taking a view on the governance of the SBAs and its constitutional history, the Court held:
The entity which became the SBAs appears to me to have been a continuation of the Colony of Cyprus, albeit with the loss of the great majority of the previous colonial territory, and with administrative and treaty arrangements necessary for good relations with the new Republic. Constitutionally and politically it was a continuation of what had gone before.
As a result, the public international law obligations of the British Government, arising when a Colonial power, must be interpreted as having persisted.
The SBAs and the EU Charter
The Claimants also argued that the Refugee Convention applies by virtue of the EU Charter of Fundamental Rights.
The starting point for this argument is that the Refugee Convention does not already apply to the SBAs. Therefore this point was largely academic, as the Court had found in favour of the Claimants on the first issue.
The argument began with a perhaps unpromising statement from the UK Treaty of Accession to the EU:
The Treaty shall not apply to the Sovereign Base Areas of the United Kingdom in Cyprus.
However, Part Four of the annex to the Cyprus SBA Protocol provides that:
The Republic of Cyprus, bearing in mind humanitarian considerations, shall work with the United Kingdom with a view to devising practical ways and means of respecting the rights and satisfying the needs of asylum seekers and illegal migrants in Sovereign Base Areas…
Therefore the Claimants argued that because the UK is working with the Republic of Cyprus as regards “the rights and needs of asylum seekers”, the UK is implementing the arrangements described in that article. Therefore, the purported exclusion in the Treaty is set aside, as the Charter applies in respect of those responsibilities. As a result the Charter is applicable.
The Court began by acknowledging that the exclusion is the overriding provision in the Treaty. The fact that the UK controls the SBA’s borders does not import EU law, but a different agreement, giving rise to different obligations.
A new decision required
The Court of Appeal unanimously held that:
The Secretary of State must take the decision once more but on the basis that the Refugee Convention applies directly and the United Kingdom owed direct obligations to the Claimants by operation of public international law.
The Court also took aim at the significant delay in the case, stating that:
There can be no justification for any future decision which leaves these Claimants’ position unresolved for any further length of time
The Claimants also advanced arguments based on the Launder principle. This states that where the Secretary of State says that she has taken into account the terms of an unincorporated international convention when making a decision, but misdirects herself as to its consequences, judicial review of that decision is available.
The High court had found against them on this point, and it is a pity that the argument was not considered in the Court of Appeal. Arguments ran on discrimination grounds were also unaddressed.
As a result, the judgment in Bashir remains closely tied to the constitutional settlement in the Republic of Cyprus and the SBAs. There was little need for any change to the law as laid down in Bancoult No 2. The central point in the High Court – that adoption of a policy compelled the government to act within the spirit of the Convention – may have had wider repercussions for immigration policy and practice in the UK. The fact that the Court of Appeal decided differently on the public international law point somewhat narrows the scope of the judgment.
A highly significant decision for the Claimants, of course, and a unanimous decision at appellate level that then Home Secretary Theresa May acted unlawfully. However, the knock-on effects of this judgment will be limited.