![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bashir & Ors, R (On the Application Of) v Secretary of State for the Home Department [2017] EWCA Civ 397 (25 May 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/397.html Cite as: [2017] EWCA Civ 397, [2019] AC 484, [2017] WLR(D) 365 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2017] WLR(D) 365]
[Buy ICLR report: [2019] AC 484]
[Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon Mr Justice Foskett
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE BRIGGS
and
LORD JUSTICE IRWIN
____________________
R (on the application of TAG ELDIN RAMADAN ![]() ![]() |
Appellants/ Cross-Respondents |
|
- and – |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent/ Cross-Appellant |
|
- and – |
||
SOVEREIGN BASE AREA AUTHORITY |
Interested Party |
____________________
Thomas Roe QC and Penelope Nevill (instructed by Government Legal Department) for the Respondent
Hearing dates : 17, 18, 19 January 2017
____________________
Crown Copyright ©
Lord Justice Irwin :
Introduction
Ground 1(a): Does the Refugee Convention apply as a matter of public international law?
Ground 1(b): Does the Refugee Convention apply by virtue of the principle in Launder?
Ground 1(c): Does the Refugee Convention apply as a matter of EU Law?
Ground 2: Did the decision of 25 November 2014 breach Articles 26, 32 and 34 of the Refugee Convention?
Ground 3: Did the decision of 25 November 2014 breach Article 14 of the ECHR?
Does the Refugee Convention apply to the SBAs as a matter of public international law?
"Article 1
The territory of the Republic of Cyprus shall comprise the Island of Cyprus, together with the islands lying off its coast, with the exception of the two areas defined in Annex A to this Treaty, which areas shall remain under the sovereignty of the United Kingdom. These areas are in this Treaty and its Annexes referred to as the Akrotiri Sovereign Base Area and the Dhekelia Sovereign Base Area."
.……………………………
"Article 8
(1) All international obligations and responsibilities of the Government of the United Kingdom shall henceforth, in so far as they may be held to have application to the Republic of Cyprus, be assumed by the Government of the Republic of Cyprus.
(2) The international rights and benefits heretofore enjoyed by the Government of the United Kingdom in virtue of their application to the territory of the Republic of Cyprus shall henceforth be enjoyed by the Government of the Republic of Cyprus."
"take any action which would conflict with pre-existing obligations of the United Kingdom under international agreements".
"2.- (1) The Republic of Cyprus shall comprise the entirety of the Island of Cyprus with the exception of the two areas defined as mentioned in the following subsection, and –
(a) nothing in the foregoing section shall affect [emphasis added] Her Majesty's sovereignty or jurisdiction over those areas ;
(b) the power of Her Majesty to make or provide for the making of laws for the said areas shall include power to make such laws (relating to persons or things either within or outside the areas) and such provisions for the making of laws (relating as aforesaid) as appear to Her Majesty requisite for giving effect to arrangements with the authorities of the Republic of Cyprus."
"Existing Law to continue to have effect
5. (1) the existing law shall, save in so far as it is in its application to the Sovereign Base Areas or any part thereof repealed or amended by, or by virtue of, any law enacted under this Order continue to have effect, but by virtue of, any law enacted under this Order continue to have effect, but shall be construed subject to such modifications and adaptations as may be necessary to bring it into conformity with the provision of this Order.
(2) In this section "existing law" means any law enacted by any authority established for the Island of Cyprus, any Instrument made under such a law, and any rule of law, which is in force in the Sovereign Base Areas or any part thereof immediately before the date of commencement of this Order or [emphasis added] which, in the case of such a law or Instrument, has been made, but has not yet come into force, before that date."
"A person other than a recognised resident must not reside in the Areas for more than 28 days in any consecutive period of 12 months, except in accordance with a permit in writing issued by a Control Officer …"
"221. I have to say that, however the principles of public international law are to be deduced and/or applied, it makes no sense, in my judgment, to conclude that a Convention as significant as the Refugee Convention (with its substantive humanitarian obligations) can be applied to a territory which does not make an informed decision about whether it is willing and able to accept those obligations. This was the approach of the Secretary of State in the Circular referred to in paragraph 214 above and the need to adopt it is obviously sound. Whilst it is quite possible to see why a "deeming provision" could be applied to acceptance of the Protocol, such a provision would clearly be inapplicable to the Convention itself.
222. It is at this point and in this context that the argument in the Detailed Grounds of Defence (see paragraph 191 above) concerning the limited nature of what the SBAs comprised at their inception has effect. These areas totalling 98 square miles and 3% of the land mass of the island of Cyprus were, it was argued, to be military bases in respect of which there was a clear understanding and commitment by the UK Government not to populate them other than with necessary military and administrative personnel. Those who lived and worked there would ordinarily be there on a relatively temporary basis to serve in the military forces or to render such educational and health support to those forces as was necessary. There would be a significant local Cypriot population living in the SBAs (albeit not in the military establishments per se) and their needs were to be provided for by the RoC. If anyone within the UK Government had addressed specifically the role which the Convention might have in the context of such a geopolitical unit, the conclusion must surely have been that it lacked the social and legal infrastructure to be able to sustain fully the obligations to which adherence to the Convention would give rise.
223. Whilst those considering the matter may well not have addressed the issue on the basis of whether the SBAs constituted new political entities, it is not inconceivable that the prevailing view (if the issue was addressed at all) was that the question simply did not arise as there was no realistic way in which the obligations under the Convention could be fully met. On that basis there was nothing to do, either positively or negatively, so far as the Convention was concerned. I agree with Mr Husain that, for the avoidance of doubt, the UK Government could have made a decision in 1966/67 formally to exclude the SBAs from the Protocol under Article IX (see paragraph 34 above). However, that would have involved a recognition that the Convention had applied to the SBAs prior thereto and, if I am right, the UK Government did not consider that it did apply – or at least thought that it probably did not apply.
224. This is, of course, speculative to a degree as there is no clear contemporaneous material to suggest that the matter was given express consideration. However, that itself adds weight to the proposition that no one considered that the Convention applied to the SBAs. If the position had been considered in 1960, it is unlikely that the scenario that has occurred in the present case (and, it appears, subsequently), namely, of a boat full of migrants from across the waters landing on the shore of one of the SBAs and seeking refuge, would have been foreseen as a real possibility.
225. Subject to the further arguments that Mr Husain advances concerning the direct application of the Convention to the SBAs to which I will refer below, I do not consider that the suggested analogy of the Turks and Caicos and Cayman Islands supports his argument and, in my view, the conclusion of the Senior Judges Court that the SBAs did indeed constitute new political entities (and very different from the new RoC) at the time of their inception was correct. If that is the test I must apply, then it means that my conclusion must be that the Convention does not apply to the SBAs."
Bancoult (No 2)
"If the claimant's submissions are otherwise rejected, he has a valid claim to relief under the European Convention since it has, at all material times, applied to the Chagos Islands by virtue of the declaration extending rights to the territory made pursuant to article 56 (ex article 63), and the absence of any denunciation under article 58 (ex article 65) of that declaration. The Order creating BIOT cannot be read as diminishing the inhabitants' rights. The Crown, having conferred those rights on them and having entered into an international obligation under the Convention to respect them and refrain from withdrawing them is obliged to secure them."
The Secretary of State replied:
"The notification by the United Kingdom in 1953 of the Convention rights under article 56 (ex article 63) to Mauritius and the Seychelles did not refer in terms to the Chagos Islands and lapsed in respect of the islands when BIOT was created. No separate extension of the Convention has ever been notified in relation to BIOT. The United Kingdom is not therefore responsible for alleged violations there of any rights guaranteed by the Convention. In any event notification applies to a legal entity; the effect of the United Kingdom's notification in respect of Mauritius was to make the United Kingdom responsible for any violations of the Convention in the territory of that colony; the effect of the creation of the legal entity of BIOT was that the islands ceased to be part of the legal entity in respect of which notification had been made and the notification ceased to apply to them. BIOT was a new and separate legal entity in respect of which no notification was ever made. In 1968, after the grant of independence to Mauritius, the United Kingdom, being no longer responsible for its international relations, the 1953 notification lapsed in its entirety. On no footing, therefore, could the Convention extend to BIOT."
"64. That leaves two points which were not considered by the Divisional Court or the Court of Appeal and which were lightly touched upon in argument but upon which the House is invited to rule. They are whether, in principle, the validity of the Constitution Order may be affected by the Human Rights Act 1998 or by international law. I do not think that the Human Rights Act 1998 has any application to BIOT. In 1953 the United Kingdom made a declaration under article 56 of the European Convention on Human Rights extending the application of the Convention to Mauritius as one of the "territories for whose international relations it is responsible". That declaration lapsed when Mauritius became independent. No such declaration has ever been made in respect of BIOT. It is true that the territory of BIOT was, until the creation of the colony in 1965, part of Mauritius. But a declaration, as appears from the words "for whose international relations it is responsible" applies to a political entity and not to the land which is from time to time comprised in its territory. BIOT has since 1965 been a new political entity to which the Convention has never been extended.
65. If the Convention has no application in BIOT, then the actions of the Crown in BIOT cannot infringe the provisions of the Human Rights Act 1998: see R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529. The applicant points out that section 3 of the BIOT Courts Ordinance 1983 provides that the law of England as in force from time to time shall apply to the territory. So, they say, the Human Rights Act, when enacted, became part of the law of the territory. So be it. But the Act defines Convention rights (in section 21(1)) as rights under the Convention "as it has effect for the time being in relation to the United Kingdom". BIOT is not part of the United Kingdom and the Human Rights Act, though it may be part of the law of England, has no more relevance in BIOT than a local government statute for Birmingham."
The Decision of the SBA Courts
"61. In my judgment on this point, the Claimants' answer to the question posed is correct. The vital question is not answered by changes in nomenclature or administrative changes but the origins and nature of the political entity. Whilst there are close analogies between this case and the Bancoult (No 2) case, there is a vital difference that, in my judgment, goes to the heart of the question under consideration. In the Bancoult (No 2) case the military bases concerned were created as a new political entity out of a British colony, leaving that colony subsequently to be granted independence. In the case of Cyprus, the military bases and surrounding territory retained by the Treaty of Establishment were what was left as the rump of the British colony of Cyprus after the RoC was created as a newly independent state out of the balance of the colony. The use of a new name, the appointment of an Administrator rather than a Governor and matters of that kind did not change the essential political nature of the territory which remained a UK overseas possession acquired in 1914, albeit much reduced in size.
62. The distinction between this case and the Bancoult (No 2) case is well drawn by the citation of two passages from the 5th (current) edition of Halsbury's Laws of England, Volume 13 that have been put before the court. At paragraph 856, Halsbury deals with the status of the territory concerned in the Bancoult (No 2) case, as follows:
"The British Indian Ocean Territory was created a separate colony in 1956 by removing the Chagos Archipelago from among the dependencies of Mauritius, and by removing the Farquhar Islands, the Aldabra Group and the Island of Desroches from the colony of the Seychelles. These territories were acquired from the King of France by cession in 1814, and the Crown retains its constituent and legislative powers under the prerogative. The Farquhar Islands, the Aldabra Group and the Island of Desroches were restored to Seychelles in 1976.
The Commissioner appointed by her Majesty by instructions through a Secretary of State may legislate for the peace, order, and good government of the territory. He may create, appoint to, and dismiss from offices held at her Majesty's pleasure."
63. At paragraph 864, Halsbury deals with the status of the SBAs as follows:
"Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus
The Sovereign Base Areas of Akrotiri and Dhekelia consist of those portions of the colony of Cyprus that were not established by the Cyprus Act 1960 as the Independent Sovereign Republic of Cyprus and remain within Her Majesty's sovereignty and jurisdiction. They are to be regarded, therefore, as constituting a colony acquired by conquest or cession as from 5 November 1914. The Crown retains its constituent and legislative power under the prerogative; the Constitution of 1960 is made by virtue partly of the prerogative and partly of the power of Her Majesty under the Cyprus Act 1960 to make any laws (and provisions for the making of laws) relating to persons or things either within or outside the areas, which seem requisite for giving effect to arrangements with the authorities of the Republic of Cyprus."
64. I am satisfied that the 1951 Convention as amended by the 1967 Protocol currently applies to the SBAs."
"16. As to whether a new political entity comes into existence in respect of the SBAs, it is appropriate to have regard to all the circumstances, rather than seeking a simple and single test. The creation of the BIOT was a clear case of the creation of a new political entity. It was not a relict. However, there are some parallels between the BIOT and the SBAs. The BIOT was similarly crated to facilitate the establishment of a military base in the largest of its constituent islands, Diego Garcia. Both the BIOT and the SBAs were designed by Orders in Council. Each was given a new system of government and its own administration. In the case of the BIOT the government was headed by a Commissioner, who had law making powers. In the SBAs the government is headed by an Administrator who has law making powers, and the Administrator must be a military officer.
17. In 1960 the Treaty concerning the Establishment of the Republic of Cyprus was made between the UK and the new Republic. Alongside that Treaty came the "Declaration by Her Majesty's Government Regarding the Administration of the Sovereign Base Areas", which is known as Appendix O. Appendix O set out the purposes for which the SBAs were created, namely as military bases, and amongst the other provisions, Appendix O undertook not to allow, within the SBAs, purely civilian development, nor to allow the new settlement of people other than for temporary purposes. Appendix O clearly reflected discussions with the Republic in providing for harmonisation of the laws of the Republic and the SBAs, and in providing for the Republic to be entitled to taxes from Cypriots already settled in the SBAs.
18. Taking Appendix O as a whole, it was more than a self limiting political declaration by the UK. There were fundamental changes in the purpose, nature and governance of the SBAs from those operating within the old colony. Constitutional interactions were set up between the Republic and the SBAs. The conclusion must be that a new political entity had come into existence, and that there was more involved than simply giving a new name to the remaining parts of the old colony. The fact that sovereignty continues over the SBAs is not the test, for the Queen may exercise sovereignty over a BOT, without the BOT being a part of the UK.
Accordingly, the 1951 Convention ceased to operate within those areas which became the SBAs, and the 1967 Protocol never became operative in the SBAs."
I will return to a discussion of this view after considering the judgments in the SBA Appeal.
"The conclusion of Bancoult 2 was that the BIOT was a newly created political entity. We have been invited – and we are sure that this is the right approach - to look at all the circumstances surrounding the creation of the RoC and the SBAs so as to come to a proper conclusion as to whether these were in reality newly created entities or what was left of the pre 1960 colony. No one feature will be decisive. One must look at matters in the round and decide upon the cumulative effect of the available material. Taking all material into account, what was the reality of the situation in 1960? The first port of call, logically, is the documentation raised at the time. That should shed light upon the reality of what happened in 1960 and what was then created or retained. We cannot hope, in the course of this judgment, to mention, still less analyse, every document; but we look at what we regard as the material of primary relevance. First we turn to the Treaty concerning the Establishment of the Republic of Cyprus, together with the "Declaration by Her Majesty's Government regarding the Administration of the Sovereign Base Areas" – commonly referred to as "Appendix O"."
"21. The respondents ask us to consider the raft of new appointments made at the time the SBAs came in to being, as evidenced by the first few editions of the SBA Gazette now contained within the `appeal bundle'. This is new material – in the sense that it was not made available to the court below. By way of example, an Administrator, Chief Officer, Resident Judge, Senior Judge, Administrator's Advisory Board and Legal Adviser were all appointed at the outset. We also look at the new legislation enacted at the time by the Administrator, as appears in the first SBA Ordinances. One of the first steps was to provide for the continuation of existing law – altogether unnecessary, say the respondents, if this were merely the continuing of a colony. The Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 provided a constitution for the SBAs. All this taken together, in our judgment, points strongly towards the creation of a new regime and entity, the establishment of something new rather than the continuation of the old regime. Of course, Collender J did not have the advantage of some of this material – it seems to us impossible to dismiss this raft of new appointments and positions as mere changes in nomenclature.
22. We also think it a useful exercise to take a step back from the specific and look at the situation as we divine it to have been in 1960 – the people of Cyprus were being given their independence. No longer was the island a colony of an overseas power. The creation of the RoC was, beyond peradventure, a new political entity – an independent state. It is perhaps difficult to see, from the points of view of either the newly emerging RoC or the UK, what the point or advantage would be of retaining two small colonial appendages to a new independent state. What surely was needed was the best arrangement by which two powers who would be geographically and ideologically side by side could best co-exist in peaceful harmony, to their mutual benefit. That would surely be by two new independent political entities. We are driven not only by this but by all the material in the case to the firm and unanimous conclusion that the majority decision of the court below was right – that is to say, that the SBAs were a new creation – a new political entity, rather than what was left of a colony after the creation of the RoC. We thus endorse and uphold the decision of the court below that the provisions of the Geneva Convention do not, as a matter of international law, apply to these appellants."
Analysis
Conclusion on the Refugee Convention
Issue Estoppel
Application of the Refugee Convention by virtue of the EU Charter
"The Treaty shall not apply to the Sovereign Base Areas of the United Kingdom in Cyprus."
In my view that constituted a very clear exclusion of the SBAs from the ambit of the Treaty. However, the Claimants proceed to argue otherwise.
"The arrangements applicable to relations between the European Economic Community and the Sovereign Base Areas … will be defined in the context of any agreement between that community and the Republic of Cyprus."
"This Treaty shall not apply to the United Kingdom Sovereign Base Areas … except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom …"
"Recognising therefore the need to apply certain provisions of the Treaty establishing the European Community and related EC law to the Sovereign Base Areas and to make special arrangements regarding the implementation of these provisions in the Sovereign Base Areas …"
And there follow provisions of the Cyprus SBA Protocol, dealing for example by Article 5(2) with the obligation of the United Kingdom to exercise control on external borders of the SBAs. By Article 7 of the Cyprus SBA Protocol the United Kingdom is made "responsible for the implementation of this protocol in the Sovereign Base Areas".
"7(a) An applicant for asylum who first entered the island of Cyprus from outside the European Community by one of the Sovereign Base Areas shall be taken back or readmitted to the Sovereign Base Areas at the request of the member state of the European Community in whose territory the applicant is present.
(b) 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, in accordance with the relevant Sovereign Base Area administration legislation."
A Fresh Decision: Must the Refugees be permitted to move to Britain?
Lord Justice Briggs:
Lord Justice Jackson: