Bashir & Ors, R (On the Application Of) v Secretary of State for the Home Department

The Refugee Convention did not apply to the Sovereign Base Areas as a matter of international law because they were new political entities and no fresh territorial declaration had been made. Nevertheless, the United Kingdom had adopted a domestic public-law policy of treating recognised refugees in the Bases in accordance with the spirit of the Convention. A decision-maker relying on an arrangement with a third country to discharge that obligation must consider whether the arrangement is effective and capable of securing the refugees’ essential Convention rights. Failure to engage with a material UNHCR warning about the proposed arrangement made the decision unlawful. The court quashed the refusal to admit the claimants to the United Kingdom and remitted the matter for reconsideration, without deciding that they were entitled to resettlement in the United Kingdom.

Six recognised refugees and their families had lived for many years in Richmond Village in the Dhekelia Sovereign Base Area. They challenged the Secretary of State’s refusal to consider their admission to the United Kingdom. The Secretary of State relied on the policy governing refugees arriving in British Overseas Territories and on an informal 2005 arrangement under which the Republic of Cyprus was said to have accepted responsibility for them under a 2003 memorandum of understanding.

The claimants argued that the Refugee Convention and 1967 Protocol applied to the Bases, or that the United Kingdom had undertaken to act in their spirit. They also relied on discrimination and public-law grounds. The central issues were the Convention’s territorial application, the effect of the United Kingdom’s self-imposed policy, and whether the Secretary of State had adequately assessed the effectiveness of the proposed Cypriot solution.

1. Territorial application. The Refugee Convention did not apply to the Sovereign Base Areas as a matter of international law. Applying R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453, the Bases were new political entities rather than surviving parts of the former colony of Cyprus. A fresh declaration under Article 40 was therefore required, but none had been made.
2. The Convention could not be applied through the EU Charter, Protocol No 3 to the Treaty of Accession, or the extra-territorial control principles in Al-Skeini v United Kingdom (2011) 53 EHRR 18. The analogy with the European Convention on Human Rights was insufficient, and the absence of an Article 40 declaration remained significant.
3. Domestic public-law commitment. Although the Convention did not apply directly, the United Kingdom had consistently undertaken to treat the claimants as refugees and to act within the spirit of the Convention. Under the principle in R v SSHD, ex parte Launder [1997] 1 WLR 839, the Secretary of State had to take the Convention’s implications into account when deciding how to deal with them.
4. In principle, the United Kingdom could discharge that self-imposed obligation indirectly through a reliable arrangement with a third country capable of providing the essential Convention protection. The arrangement did not necessarily amount to expulsion or require admission to mainland United Kingdom. The claimants’ lack of consent was relevant but not decisive.
5. The Secretary of State’s decision was unlawful because it relied on the alleged 2005 arrangement without addressing the UNHCR’s substantial warning that relocation to Cyprus was no longer a desirable or practical option and without evaluating the arrangement’s strength and effectiveness. The failure was material and prevented a conscientious decision excluding admission to the United Kingdom.
6. The discrimination claim under Article 14 of the ECHR failed. Article 8 was engaged by the effect of prolonged residence in the inadequate accommodation, but refugees in other British Overseas Territories had no more general entitlement to admission to the United Kingdom. The statutory disadvantage concerning British citizenship was authorised by Parliament.
7. The claim was not defeated by delay. The letter of 25 November 2014 constituted a sufficiently clear decision capable of judicial review.
8. The refusal was quashed and the matter remitted to the Secretary of State for reconsideration in light of the judgment and up-to-date material. The court did not decide that the claimants had a right to be resettled in the United Kingdom.

First-instance judicial review. The judgment records earlier proceedings in the SBA courts, including Bashir & Ors v Administrator of the Sovereign Base Areas of Akrotiri and Dhekelia and Secretary of State for Defence, Judicial Review No. 1 of 2010, and Appeal No. 1 of 2011, but those decisions concerned earlier proceedings in the same dispute.