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Bashir v SoS for Home Department: Finding Housed Refugees a Home

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About The Author

Isaac Richardson (Guest Contributor)

Isaac is an aspiring barrister and a graduate from UCL.

We live in the age of the refugee, the age of the exile.

Ariel Dorfman

On the small tract of land that remains of Britain’s colony of Cyprus, six families of refugees are housed. Having travelled from Lebanon in a boat that was barely a floating coffin, and run aground near Akrotiri, they were temporarily settled in the Dhekelia military base, whilst the search for a permanent home was conducted.

Or so they were told. Nineteen years have since passed, yet the families’ situation remains unchanged. If their accommodation ever was fit for human habitation, it certainly is no longer. It is increasingly overcrowded, dilapidated, and unsafe; the families are exposed to broken asbestos panels and live electrical wires, and rats and snakes are frequently found inside.

The situation is no brighter beyond their four walls. Within the territory there are few opportunities to exercise the rights contained within the UN Refugee Convention 1951 (the Convention): there are ‘no practical employment opportunities’; the support services and education available to the children are extremely limited; and there is no meaningful society into which they can integrate.

The cumulative effect of this on the families is pronounced. In 2013, the United Nations High Commissioner for Refugees (UNHCR) expressed serious concern about their ‘precarious mental health’, concluding that each individual suffered from extensive psychological problems and stress. The same year, an independent social worker assessed that a sense of hopelessness was endemic.

It is indisputable that this situation is prima facie in breach of the Convention. As stated by Foskett J in the High Court’s decision in R (Bashir) v Secretary of State for the Home Department [2016], it is ‘common ground’ that the full range of rights cannot be secured in Britain's Sovereign Base Areas in Cyprus (SBAs). Yet the families remain in a protracted legal battle to have those rights recognised; one which – as this article will examine – last month was heard before the UK Supreme Court.

How Can This Be Justified?

The Secretary of State’s justification for the situation is two-fold. Firstly, it is argued that the Convention simply does not extend to the SBAs. The rationale for this is that when Cyprus was declared independent in 1960, the two small areas which remained under the control of the UK were so different to the Colony from which they derived that they had to be considered a ‘new political entity’. As such, it is argued that the 1956 declaration that extended the Convention to the Colony of Cyprus has lapsed, thereby extricating the UK from its previous obligations.

Secondly, it is argued that the UK would not be in breach of the Convention regardless. This is either because the families have the option of relocating to the Republic of Cyprus, where their rights would be satisfied; or because the Republic has agreed to ‘import’ the rights that the UK cannot uphold within the SBAs, even if the families remain located in the same place.

The Decision of the High Court

In R (Bashir) v Secretary of State for the Home Department [2016], Foskett J approved the position of the Secretary of State, to a large extent. In relation to applicability, the High Court was necessarily bound by the principle espoused by the House of Lords in R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008]: that declarations of application attach not to the land which is contained in the territory of the signatory state, but instead to the ‘political entities’ about which the declaration is made; with the result that a declaration lapses whenever a ‘new political entity’ is formed.

In that case – as Keir Baker has examined for Keep Calm Talk Law – the Chagos Archipelago had been detached from the Colony of Mauritius and joined with various territories from the Colony of Seychelles, collectively forming the British Indian Ocean Territories (BIOT). As a matter of law this was unequivocally a new political entity, because Article 3 of the BIOT Order which created it explicitly described it as a ‘separate colony’. Accordingly, little further discussion was necessary: under the test formulated, the Human Rights Act 1998 no longer had force. 

In R (Bashir) v Secretary of State for the Home Department [2016], Foskett J concluded that the SBAs were likewise a ‘new political entity’. In reaching this decision he appeared to look holistically at all the circumstances, putting great weight on the marked differences between the Colony of Cyprus and the SBAs: the change to a predominantly military purpose; the reforms to the internal political arrangements (an Administrator, Chief Officer, Resident Judge, Senior Judge, Administrator's Advisory Board and Legal Adviser were all appointed at the outset); and the reductions in size and population.

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He went on to consider that the ‘spirit’ of the Convention did still apply, due to the UK’s promise to treat the families as refugees; but then expressed circumspection as to whether it had been breached in any event. Whilst he did remit the decision not to relocate for reconsideration, this was due to the procedural failure to properly consider the representations made about the situation by the UNHCR.

As to the issue of substantive breach, Foskett J was clearly sympathetic to the suggestion of the Secretary of State that the UK would be in compliance with the Convention if they continued to house the families in the SBAs, but transferred the responsibility for securing their other rights to a third country. Provided that the third country was also a signatory of the Convention, and had consented to meeting the ‘essential minimum requirements’ included therein, he stated that it would be ‘difficult to see’ why the UK would be in breach. Underlying this was the belief that the Convention is not concerned with providing protection in specific countries, but instead with ‘protection’ howsoever secured.

The Decision of the Court of Appeal

On both issues, the Court of Appeal in R (Bashir) v Secretary of State for the Home Department [2017] departed from the conclusions of the High Court. Firstly, they considered that the SBAs were in fact a continuing political entity, with the result that the UK owed direct obligations to the families. Secondly, they rejected the notion that these could be exported, and stated that any failure to resettle with haste would therefore be ‘unreasonable and a failure of the obligations to the refugees’.

Regarding the circumstances under which a ‘new political entity’ would come into being, they held that this must be considered primarily in the context of the obligations of a state in international law. It was true, said Irwin LJ, that there had been significant alteration to the size and internal arrangements of the territory. But the determinative question was whether it was constitutionally and politically a continuation of what had gone before; and the fact that the British government’s international law obligations remained unchanged meant that it in this instance it was.

This was in stark contrast to the position in R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008], where prior to the creation of the BIOT, sovereignty was exercised over two different and distinct colonies; and where Parliament exercised its inherent power to create constitutional change, by passing legislation which expressly created something new. Accordingly, the six families in this instance were covered by the Convention.

As to the question of breach, the Court of Appeal stopped short of ordering resettlement in the UK, but strongly hinted that it was the only tenable option. In doing so, they elucidated several factors that the Secretary of State was required to consider when making a fresh decision.

Firstly, they rejected the notion that obligations could be ‘exported’; whilst some may be capable of satisfaction by mutual agreement, the responsibility for ensuring they are adhered to will always remain with the UK. Secondly, they noted that it was inconsistent for the Secretary of State to now argue that all the rights under the Convention could in fact be secured in the SBAs in conjunction with Cyprus, considering they had previously relied on the impossibility of this. Finally, they found that (at the very least) compliance with the obligation under Article 34 of the Convention to facilitate assimilation and naturalisation ‘as far as possible’ would likely be unattainable in the SBAs, because of the lack of any meaningful society. 

The Next Stage: The Supreme Court

The decision of the Supreme Court in this case will have serious and wide-reaching ramifications. This is patently true for the families themselves, whose future will be determined once and for all. Whether the judges fall on one side or the other, it is clear that there is no appetite for further equivocation. The government’s refusal to accede to relocation will either be unlawful, belatedly providing the families with the opportunity to commence meaningful lives; or it will be lawful, and they will have no choice but to adjust to their new reality.

It can seem callous to search for any wider significance than this, when the tangible human impact is already so immense. In this instance, however, it is inescapable, because the verdict reached on the issue of application may leave a lasting imprint on the landscape of human rights and public international law. Indeed, it could alter significantly the protection afforded to people in comparable situations in the future.

If the Secretary of State’s position is approved, then not only will the test under R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008] persist, but a narrow interpretation of it will take hold. Purely internal changes to territories (such as to their boundaries, populace or purpose) will then be sufficient for the UK to bypass obligations, notwithstanding their previous consent to be bound. To borrow a phrase from counsel for the Secretary of State, provided the territory can be described as ‘fundamentally different’, the UK will no longer be bound with respect to it.

Significantly, no legal or constitutional change whatsoever will be required for this test to be met - even on the domestic level. In this instance, for example, the primary legislation and Order in Council which established Cyprus as an independent state did not exhibit any intention to alter the legal status of the areas that remained under UK control. In fact, quite the opposite is true: having provided for the creation of the new Republic, Section 2(1)(a) of the Cyprus Act 1960 went on to state that ‘nothing in the foregoing section shall affect Her Majesty’s sovereignty or jurisdiction’ over what remained. This means that Cyprus is to be regarded as constituting a colony acquired by consent or cession as from 5 November 1914, and not a new legal entity.

If this approach was approved, the repercussions would be deeply concerning. Legal certainty would be inhibited, both for the beneficiaries of the treaty obligations and for other contracting states. There would effectively be no way of knowing whether a treaty still bit, short of investigating the totality of changes to a territory, and attempting to assess whether they rendered it ‘politically’ new.

Similarly, the gravity of entering into such treaties would be curtailed: what reason would exist not to extend human rights to all overseas territories, in order to benefit from the concomitant suggestion of benevolence, if it were possible to later do away with those rights, without appearing to do anything at all.

Conversely, approval of either of the respondent’s submissions in this regard would improve the position. The first, which does not ask the court to overturn the ‘new political entity’ test, would at least establish as a prerequisite for disapplication some perceptible legal change in the status of an overseas territory - such as that enacted by the BIOT Order in relation to the Chagos Archipelago.

The second submission goes further still, and would immeasurably strengthen the protection afforded to those ostensibly covered by international treaties. It asserts that the R (Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008] approach is fundamentally flawed, and that it should be repudiated entirely. This is because it wrongly focuses on the internal constitutional arrangements of territories, when what is in fact at issue are the international responsibilities that a state holds.

The consequence of this is that purely domestic changes would no longer be relevant - legal or otherwise. Instead, for as long as the UK continued to hold international responsibility for a geographical territory, it would only be able to shirk its pre-existing duties through actions on the international law plane.

This certainly would not render it impossible to rescind application. The UK could still do this through formal denunciation of the treaty in question, inasmuch as it applies to a specific territory (which is expressly provided for under Article 44(3) of the Convention, and Article 58(4) of the European Convention of Human Rights). Likewise, application would automatically cease when international responsibility alters; if territory is lost through international law principles such as cession or independence, it is self-evident that the UK would no longer owe obligations in respect of it.

Nevertheless, the consequences of a verdict being passed in these terms should not be underplayed. The removal of refugee or human rights from a territory would be contingent on compliance with international processes, and the government of the day would therefore be precluded from disputing the protection they owe unless these had been followed. This would force them to openly acknowledge any intention to remove rights from the people who reside in the remnants of their colonies - and pay the political price of any ensuing backlash.

Conclusion

It cannot be said how long will pass before the effects of any decision that the Supreme Court makes will manifest again in another similar case. Considering the unique factual background and somewhat esoteric legal issues involved, it may well be many years. Frankly, however, that is irrelevant. If it transpires that six families have wrongly been left in limbo for nineteen long years, that will already be too many. Any alteration in the law which ensures the same does not happen again must be enthusiastically embraced.

This article was reproduced on Keep Calm Talk Law with kind permission from Matrix Chambers and the editors of the UKSC Blog. The original version is available here.

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Tagged: Human Rights, Law and Development, Supreme Court

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