In a unanimous decision the Court of Appeal has today (25 May 2017) found that Theresa May acted unlawfully by refusing to consider allowing entry to the UK to a group of refugee families stranded on the British Sovereign Base Areas (SBA) in Cyprus.
The unlawful decision was made in November 2014 when Mrs May was Home Secretary. The Court of Appeal has ordered the current Home Secretary to urgently reconsider the refusal of entry noting that “there can be no justification for any future decision which leaves these Claimants’ position unresolved for any further length of time”.
The judgment by Lord Justice Irwin together with Lord Justice Jackson and Lord Justice Briggs was delivered in the case of R [Bashir & Others] v SSHD.
The Claimants are the heads of six refugee families, who were amongst a group of 75 individuals who washed ashore on the SBA in October 1998, after the boat they were travelling in foundered off the Cypriot coast.
Following their arrival on the SBA, the six were detained for months. They were released after being recognised as refugees under the 1951 Refugee Convention (the Refugee Convention) in 1999/2000 following a procedure conducted in conjunction with the Home Office and the UN Refugee Agency (UNHCR).
For the last 18 years the six refugee claimants and their nineteen children have had to endure deteriorating living conditions on the SBA where they are housed in ex-military accommodation which was due to be demolished in 1997. Many of the children have spent their whole lives on the SBA.
The Claimants have always maintained that the UK is legally responsible for them and owes them direct obligations under the Refugee Convention. They have argued that their rights as recognised refugees cannot be delivered in the SBA and that the only durable solution for them and their families is resettlement in the UK.
However, the UK Government has consistently denied legal responsibility for the Claimants and their families. Instead, it has argued that the Refugee Convention was never extended to the SBA and that the families have no grounds on which to seek resettlement in the UK.
In April 2016, the High Court quashed the November 2014 decision. Whilst it found that the Refugee Convention did not apply to the SBA as a matter of public international law, the High Court ruled that UK and the SBA Administration were required to act within the spirit of the Refugee Convention because they adopted a policy to do so from the outset.
Following an appeal by both parties, the Court of Appeal today went further than the lower court. It found that contrary to the UK Government’s position, the Refugee Convention does apply directly to the SBA by virtue of the earlier extension of the Refugee Convention to the colony of Cyprus in 1957.
As such, the United Kingdom owes direct obligations to the six refugee claimants by operation of public international law. The Court noted that the United Kingdom has ample resources to fulfil its responsibilities under the Refugee Convention. In ordering the Home Secretary, Amber Rudd, to reconsider whether to give the Claimants entry to the UK the Court of Appeal stated:
“The Secretary of State must take the decision once more but on the basis that the Refugee Convention applies directly and the United Kingdom owes direct obligations to the Claimants by operation of public international law." [Para 79]
"… There can be no justification for any future decision which leaves these Claimants’ position unresolved for any further length of time. As the Judge made clear, their present conditions are quite unacceptable. That appears to be common ground." [Para 84]
"…. I would regard it as unreasonable and a failure of the obligations to the refugees if resettlement was not achieved rapidly." [Para 85]
Tag Bashir, the Lead Claimant said:
“We are delighted that the Court of Appeal has found in our favour and confirmed what we have always known: that we are the responsibility of the UK Government. For the last eighteen years the UK Government has sought to ignore us and has left us stranded on the SBA living in awful conditions. All we have ever wanted is an opportunity to work and make a future for our children. We hope that the Home Secretary will now allow us entry to the UK. We will keep fighting until she does.”
Tessa Gregory, a partner from the human rights team at Leigh Day who is representing the refugees said:
“Our clients have been in legal limbo for 18 years living in wholly unacceptable conditions on a British military base. They have suffered enough. Now is the time for the Government to show compassion and a ‘strong and stable’ resolve to address this situation which has festered for far too long. We hope the UK Government will not seek to pursue further costly legal proceedings and will face up to its responsibilities by allowing this small group of recognised refugees entry to the UK.”