Thomas Roe QC in leading case on treaty law and the EU Charter.

06 May 2016

R (Bashir) v Secretary of State for the Home Department [2016] EWHC 954 (Admin).

In an important decision, the High Court has upheld the Government’s view that the Refugee Convention and Protocol do not extend as a matter of public international law or EU law to the UK’s Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus (‘the SBAs’). It has also held that an undertaking nevertheless to treat refugees arriving in the SBAs ‘in the spirit of’ the Convention can be satisfied by an understanding with the Republic of Cyprus that it would accept such refugees.

Since 1960, when the then British colony of Cyprus was given independence as the Republic of Cyprus, the UK has maintained sovereignty over two Sovereign Base Areas (SBAs) on the island. These house military bases (currently being used in the fight against ISIS) and supporting civilian infrastructure. They also have a substantial Cypriot population. The UK has promised not to develop them except for military purposes.

The claimants were refugees who in 1998 were rescued from a boat that came ashore in the SBAs, and who have been living in disused Army barracks in the SBAs ever since. They applied to come to live in the United Kingdom. Their application was refused. The claimants argued that this was unlawful because the Refugee Convention applied to the SBAs as a matter of public international law or EU law and this gave them a right to enter the UK. They also complained that the decision refusing to admit them was poorly reasoned.

After six days of argument, the court (Mr Justice Foskett) has rejected all but one of these contentions.

On the issue of international law, the judge noted that the UK had extended the Refugee Convention to the colony of Cyprus, but when the independent Republic of Cyprus was founded the UK had not given any indication as to whether the Convention continued to apply to the parts of the island designated as the SBAs. Applying the rule in the 1969 Vienna Convention on the Law of Treaties that a treaty applies to a state’s ‘entire territory’ unless ‘a different intention’ appears, he found that while the SBAs were part of the UK’s territory, ‘a different intention’ did appear. The SBAs were a new political entity which, being established for military purposes, were wholly unsuited to take on the obligations towards refugees required by the Convention.

On the EU law issue, the judge rejected the claimants’ claim that the Charter of Fundamental Rights, which requires member states to respect the Refugee Convention’s rules, applied by virtue of the Protocol signed when Cyprus joined the EU. He agreed that this would have been made clear in the Protocol if it had been intended.

The judge also rejected the argument that the Refugee Convention, even if it did apply, entitled the claimants to move from one British territory to another.

The claimants succeeded to the extent that the Home Office’s decision was quashed on what the judge called a ‘narrow’ point, namely whether the Home Secretary had sufficiently considered the risks that the Republic of Cyprus might not honour its promise to accept the claimants as refugees. The decision will therefore need to be retaken.

Thomas Roe QC was leading counsel for the Secretary of State for the Home Department

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