The Supreme Court held, in an interim judgment, that the Refugee Convention still applies to the Sovereign Base Areas of Akrotiri and Dhekelia, but does not give refugees living there a right to enter the United Kingdom. Six refugees brought there in 1998 challenged the Home Secretary’s refusal to resettle them. The Court decided those threshold questions and left the effect of arrangements with the Republic of Cyprus, and any domestic remedy, for further argument.
The refugees and the refusal to admit them
The respondents arrived on the British Sovereign Base Areas in Cyprus in 1998. Their claims concerned the responsibilities of the UK towards recognised refugees there.
The Bases’ administration recognised them as refugees. They wanted admission to the UK and challenged the Home Secretary’s refusal.
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A 2003 UK–Cyprus memorandum provided for services to asylum seekers and refugees arriving in the Bases after its operative date. Because the respondents had arrived earlier, it mattered whether support was available to them on some other basis.
The courts below
The claim was a judicial review of a Home Office letter of 25 November 2014 refusing admission. Foskett J held that the Bases were a new international entity, so the Convention did not apply. He treated the United Kingdom as obliged only to observe the Convention’s spirit, and held that support arranged with the Republic would be lawful if it could be achieved. He quashed the letter because it had not considered the UNHCR’s view that relocation to the Republic was no longer realistic, or examined the 2005 understanding.
The Court of Appeal overruled him on the status of the Bases. Irwin LJ, giving the only substantive judgment, held that they were not a new entity and that the United Kingdom’s notification of 24 October 1956, extending the Convention to Cyprus, still covered them. The Court of Appeal did not decide whether the Convention required entry to the United Kingdom or whether support through the Republic was lawful. It ordered a fresh decision by 6 July 2017, on current facts and on the footing that the Convention applied directly. Irwin LJ considered that the obligations could not be exported and that leaving the respondents where they were was likely to conflict with article 34.
On 6 July 2017 the Home Secretary again refused entry. She said that, if the Convention applied, it could be met through the Republic, and had not been only because the respondents would not engage while the litigation continued. The 2014 decision had been quashed and replaced. The 2017 decision was not technically before the Supreme Court, but the questions overlapped. Rather than remit the case, the Court decided the issues it could and asked for further submissions on the rest.
Why the Convention still applies
The question was whether separating the Bases in 1960 ended the Convention’s application to land it had previously covered. Treaty obligations are owed by states in respect of territory for which they are internationally responsible, and can cease if territory secedes or becomes independent. There is no settled rule that humanitarian treaties attach to the land itself. In Bancoult (No 2) the House of Lords held that extending the European Convention on Human Rights to Mauritius did not carry it to the British Indian Ocean Territory, constituted in 1965 as a new colony. The Court declined to overrule that decision. Domestic law cannot excuse breach of a treaty which applies, but whether it applies depends on the current constitutional relationship.
The Bases were not a new colony. The Cyprus Act 1960 excluded them from the territory transferred to the Republic; the 1960 Order in Council organised their administration and did not declare a new political entity. They had been part of dependent Cyprus and were afterwards the whole of what remained. Losing 97 per cent of the island did not change the status of the 3 per cent retained. The United Kingdom had treated other pre-1960 treaties as continuing to apply to the Bases. The 1956 declaration therefore still applied, and with it the 1967 Protocol. The United Kingdom was bound by the Convention itself, not merely its spirit.
Why that is not a right to enter the United Kingdom
The Convention has not been incorporated generally into United Kingdom law, so that conclusion does not itself decide the judicial review. Section 2 of the Asylum and Immigration Appeals Act 1993 provides that nothing in the Immigration Rules shall lay down a practice contrary to the Convention, and a mistaken application of the Convention may also matter in domestic public law. The Court left the working of those principles for further argument.
The Convention’s references to territory do not grant a refugee in a dependent territory a right to resettle in the administering state. The Court distinguished the UK’s international responsibility for the Bases from a duty to admit the respondents to the UK itself.
Article 19 points the same way: for refugees in liberal professions, the state promises only to use its best endeavours to secure settlement in a non-metropolitan territory. That privilege would be unnecessary if every refugee could already move anywhere the Convention applied. Article 32 restrains expulsion from the territory of refuge — here, the Bases — except on grounds of national security or public order. It confers no right to resettle in the United Kingdom. Article 34, requiring states so far as possible to facilitate assimilation and naturalisation, does not override the distinction between metropolitan and overseas territories, and does not entitle a refugee to choose the territory of assimilation. If the Court of Appeal intended that result, it was wrong. In principle and in normal circumstances, the duties were limited to securing Convention rights in the Bases.
Support through the Republic
The 2003 Memorandum does not in terms cover the respondents. For Base law, the 2003 Ordinance treats Convention rights as properly accorded whether enjoyed in the Bases or the Republic; its validity was for the Base courts and was not challenged. The respondents nevertheless argued that the Memorandum was unfit even for people within it. The Court rejected that argument. The Bases depend unusually closely on the Republic: Cypriot residents vote and receive services there, the border is open, and the Base administration does not provide a civilian welfare state. Nothing in the Convention is expressly directed to that situation, or expressly inconsistent with co-operative arrangements. The Court found it hard to see an objection in principle to facilities being provided through the Republic.
It also rejected the detailed objections: it was appropriate for the United Kingdom, which is internationally responsible for the Bases, to be the party; treatment by the Republic as if it had itself recognised the refugees was not shown to be a lower standard; an undertaking to endeavour to resettle people within a year did not limit rights to a year; an inter-state memorandum would not itself create rights enforceable in the domestic courts; and termination was unlikely to remove treatment already promised to people accepted under it. The United Kingdom’s Convention obligations would continue in any event. Whether the same course could be imposed in 2005 on refugees already lawfully present, without their consent, was a different and undecided question.
Verdict: In this interim judgment the Court held that the Refugee Convention and 1967 Protocol applied in the Bases, but conferred no right to resettlement in the UK. It invited further submissions on support in Cyprus and available domestic remedies. It did not dispose of the appeal.
