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

Pre-existing treaty obligations continue to bind a colonial territory after constitutional or territorial change unless the change creates a genuinely new political entity. The question requires attention to all relevant circumstances, focusing on continuity of the international legal entity rather than domestic administrative changes, official legal advice or practical capacity. The Sovereign Base Areas were a continuation of the former Colony of Cyprus, so the Refugee Convention continued to apply. Refugee obligations cannot ordinarily be exported without agreement or a narrow applicable exception. The EU Charter provided no alternative route because the EU Treaties excluded the Sovereign Base Areas except for measures necessary to implement the specific Cyprus protocol.

Six heads of household represented refugees who had lived for many years in the Dhekelia Sovereign Base Area in Cyprus. The Secretary of State refused to admit them to the United Kingdom, proposing relocation to the Republic of Cyprus. Foskett J quashed the decision because the Secretary of State had not considered UNHCR representations that relocation to Cyprus was no longer desirable or practical: [2016] EWHC 954 (Admin). The refugees appealed on the application of the Refugee Convention, the EU Charter and related issues. The Secretary of State cross-appealed on the UNHCR issue. The central questions were whether the Refugee Convention applied to the Sovereign Base Areas and what consequences followed.

Appeal allowed to the extent indicated. A fresh decision was required. The court did not address the cross-appeal further.

1. The question whether treaty obligations survived the constitutional settlement in Cyprus was governed by the approach in R (Bancoult) v SSFCA (No 2) [2008] UKHL 61. The court had to decide whether the change created a new political entity, considering all relevant circumstances and focusing on continuity of public international law obligations.
2. The Sovereign Base Areas were a continuation of the Colony of Cyprus, not a new colony or British Overseas Territory. The Treaty of Establishment, the Cyprus Act 1960 and the Sovereign Base Areas of Akrotiri and Dhekelia Order in Council 1960 preserved United Kingdom sovereignty, legislative authority and existing law. Administrative change, territorial reduction and arrangements for cooperation with the Republic of Cyprus did not alter that conclusion. The Refugee Convention therefore continued to apply as a matter of public international law.
3. The Secretary of State could not rely on issue estoppel arising from earlier Sovereign Base Area proceedings. The established rule excluding issue estoppel in judicial review, stated in R v Secretary of State for the Environment, ex parte Hackney LBC [1983] 1 WLR 524 and upheld on appeal at [1984] 1 WLR 592, was not to be reconsidered on these facts. The case would in any event likely fall within the special-circumstances exception.
4. The EU Charter argument failed. The Treaties excluded the Sovereign Base Areas except so far as necessary to implement the Cyprus SBA Protocol. Provisions requiring border control, readmission and cooperation concerning asylum seekers did not import the EU asylum acquis or the Charter. They also could not amount to the formal territorial declaration required by article 40 of the Refugee Convention.
5. The United Kingdom’s obligations to the refugees remained with it. They could be satisfied elsewhere by agreement, but could not simply be exported. The fresh decision had to consider current facts, the refugees’ unacceptable conditions, the prolonged delay and the duty under article 34 to facilitate assimilation and naturalisation as far as possible. The arrangement with Cyprus was not constructive expulsion under article 32, although repeating it without an effective solution would likely fail to discharge the United Kingdom’s obligations. The Secretary of State was also required to consider the material UNHCR representations.

1. Court of Appeal (Civil Division): The Claimants’ appeal succeeded to the extent indicated. A fresh decision was required, and the cross-appeal was not addressed further.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Foskett J quashed the refusal decision because the Secretary of State had failed to consider UNHCR representations: [2016] EWHC 954 (Admin).