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United Kingdom Asylum and Immigration Tribunal
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Cite as:  UKIAT 2,  UKIAT 00002
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STARRED VD (Nationality – Country of Habitual Residence –TRNC) Cyprus  UKIAT 00002
Date of hearing: 28 November 2000
Date Determination notified: 14 March 2001
|Secretary of State for the Home Department||RESPONDENT|
The Security Council,
Having heard the statement of the foreign minister of the government of the Republic of Cyprus,
Concerned at the declaration by the Turkish Cypriot authorities issued on 15 November 1983 which purports to create an independent state in Northern Cyprus,
Considering that this declaration is incompatible with the 1960 Treaty concerning the Establishment of the Republic of Cyprus and 1960 Treaty of Guarantee,
1. 'Deplores the declaration of the Turkish Cypriot authorities of the purported succession of part of the Republic of Cyprus;
2. Considers the declaration referred to above as legally invalid and calls for its withdrawal;
6. Calls upon all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus;
7. Calls upon all States not to recognise any Cypriot states other than the Republic of Cyprus;…'
The Convention context
For the purposes of the present Convention the term 'refugee' shall apply to any person who:
(2)… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he has a national.
Northern Cyprus as a State in English Law
The courts in questions whether a particular person or institution is a sovereign must be guided only by the statement of the sovereign on whose behalf they exercise jurisdiction. As we said by this court in Mighell v Sultan of Johore  1 QB 149, 158: 'When once there is the authoritative certificate of the Queen through her minister of state as to the status of another sovereign, that in the courts of this country is decisive'.
I pause here to say that not only is this the correct procedure, but that it is the only procedure by which the Court can inform itself of the material fact whether the party sought to be impleaded, or whose property is sought to be affected, is a foreign sovereign State. This, I think, is made clear by the judgments in this House in the Kelantan case  AC 797. With great respect I do not accept the opinion implied in this Majesty's Government is only one way in which the judge can ascertain the relevant fact. The reason is, I think, obvious. Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognise as a fellow Sovereign in the family of states; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone.
Her Majesty's Government have not accorded any form of recognition to the so-called 'Turkish Republic of Northern Cyprus (TRNC)'. To the best of my knowledge no other State, with the exception of Turkey, has recognised the 'TRNC'. Her Majesty's Government recognise only one State in the island of Cyprus, that is the Republic of Cyprus established in 1960 under the Treaties of Guarantee and Establishment to which the United Kingdom, Greece, Turkey and the Republic of Cyprus are parties. Under Article II of the Treaty of Guarantee, the United Kingdom, together with Greece and Turkey, 'recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus'.
Northern Cyprus as a Country of Nationality for the Purposes of the Convention
117. … As this Court has held, referring to one of its decisions declaring a situation as contrary to the rule of international law: 'This decision entails a legal consequence, namely that of putting an end to an illegal situation' (ICJ Reports 1951, p. 82).
118. South Africa, being responsible for heaving created and maintained a situation which the Court has found to have been validly declared illegal, has the obligation to put an end to it. It is therefore under obligation to withdraw its administration from the Territory of Namibia. By maintaining the present illegal situation, and occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any violations of its international obligations, or of the rights of the people of Namibia. The fact that South Africa no longer has any title to administer the Territory does not release it from its obligations and responsibilities under international law towards other States in respect of the exercise of its powers in relation to this Territory. Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States…
125. In general, the non-recognition of South Africa's administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.
That is one of the few decided cases on this area of the law. It is authority for the proposition that a person's country of … former habitual residence need not be a State. It is also authority for the proposition that 'country' in that phrase is to be interpreted differently from 'country' in the phrase 'country of …nationality'. This second proposition does appear to be part of the ratio, because it was only by making the distinction between the two phrases that Tamberlin J found himself able to conclude that Hong Kong (although not a State) was the claimant's country of former habitual residence. He said this:
The language of Article 1A of the Convention itself draws a distinction between 'the country of nationality' and 'the country of former habitual residence'. The word 'country' in each of these expressions is used in a different sense. In the first phrase it is used to designate a country capable of granting nationality. IN the second it is used to denote a country which need not have this capability but in which the individual resides. The concept of 'country' is broader than the concept of a State.
The 'country' the 'national government', the 'legitimate government', the 'nominal government' will probably vary depending on the circumstances and the evidence and it would be presumptuous to attempt to give a genera definition. I will simply note here that I do not rule out the possibility that there may be several established authorities in the same country which are each able to provide protection in the part of the territory controlled by them, protection which may be adequate though not necessarily perfect.
Northern Cyprus as a Country of Former Habitual Residence
The position of the appellant
Return to Northern Cyprus
(b) It follows that, for a person who has (another) nationality, a link with Northern Cyprus is irrelevant for the purposes of deciding whether he is a refugee.
(c) Northern Cyprus is, it seems, not capable of being the country of former habitual residence of a person who has no nationality. Cyprus, however, undoubtedly is capable of being a country of former habitual residence.
(d) If a person establishes that he is a refugee within the meaning of Article 1(A)(2) of the Convention, care must be taken to ensure that his return to Northern Cyprus will not breach Article 33.
C. M. G. Ockelton