What’s another few months when you’ve been waiting two decades? For the past 20 years, a group of Iraqi and Syrian Kurds have been marooned on a British military base in Cyprus, recognised as refugees but denied settlement in the UK. In R (Tag Eldin Ramadan Bashir and others) v Secretary of State for the Home Department [2018] UKSC 45, decided yesterday, the Supreme Court delivered an interim judgment on their bid to come to Britain but decided that it needed more information before making a final decision.

The justices did answer a question of “great general importance”, holding that the Refugee Convention does not guarantee free movement for refugees between a “dependent territory” of a country and its “metropolitan” mainland.

An interim judgment only

The court “regrets the delay in reaching a final disposal of this protracted and deeply troubling case”. Apparently not all the legal issues necessary for resolving the case had been agreed between the parties “nor adequately covered by the written or oral submissions”. It seems a little odd that a case could get as far as a Supreme Court hearing without the legal issues being identified and argued. One of the barristers involved in the case tells me that there were factual developments around the time of the hearing and that the delay is nobody’s fault in particular.

The court does not point fingers either — “no purpose would be served at this stage by examining the reasons for that failure” — and merely says that:

the issues between the parties have broadened in the course of the proceedings, partly because not all of the legal problems raised by the appeals were appreciated at the time of the trial, and partly because of the much broader basis on which the Secretary of State sought to justify her refusal to admit the respondents to the United Kingdom in her second decision of July 2017.

In particular, there seems to have been significant correspondence between the UK government and the UN refugee agency since the hearing in December, some of which was only lodged with the court on 26 July 2018 (see paragraph 57).

All the same, the Supremes’ approach is ironic given what the Court of Appeal said in its judgment last year: “there can be no justification for any future decision which leaves these Claimants’ position unresolved for any further length of time”.

20 years in Sovereign Base Area limbo

The respondents are six refugees who were among a group of 75 travelling by boat from Lebanon to Italy in the autumn of 1998. The boat foundered and those aboard airlifted by the RAF to the UK-controlled Sovereign Base Areas of Cyprus. They were recognised as refugees by the base authorities but denied resettlement in the UK proper. One minister (it seems from the chronology to have been Peter Hain) wrote simply:

I will not support relocation to UK. This is not on politically.

A 2003 agreement between the UK and the Republic of Cyprus made arrangements for dealing with asylum seekers newly arrived in the Sovereign Base Areas, but did not cover the unfortunate few already there. The British government says that Cyprus subsequently agreed to bring the existing refugees into the fold, but “this agreement has never been recorded in writing”. The wrangle over responsibility has continued ever since.

As a result, according to a Guardian profile a few years ago, 21 of the original “boat people” are still there, along with 45 or so family members and children born (stateless) on the base, living in what the Supreme Court describes as “highly unsatisfactory conditions in disused service accommodation”.

Refugee Convention argument for resettlement in the UK

Quoting the press summary:

The broad question at issue in the appeal is whether the Respondents are entitled or should be permitted to be resettled in the UK on the basis of the [Refugee] Convention or that in the exceptional circumstances of the case the Secretary of State should exercise his discretion to admit them.

The Supreme Court decided that it needed to decide various subsidiary issues in order to answer that question. Some of them it did decide, others it invited further submissions on. The issues it was in a position to resolve are as follows:

(i) Does the Refugee Convention apply to the Sovereign Base Areas?

Yes. “The Refugee Convention continues to apply to the SBAs by virtue of the declaration of 1956, in the same way as it applied to the whole colony of Cyprus before 1960” (paragraph 71).

(ii) Does the Convention entitle the respondents to be resettled in the United Kingdom?

The question here, one of “great general importance”, was as follows:

Is it the effect of the Convention that, once a refugee reaches a dependent territory of a state (such as an SBA) to which the Convention applies, the refugee is entitled without more to move freely to what article 19(2) of the Page 33 Convention calls the “metropolitan” territory of that State or to any other dependent territory of the same state to which the Convention has been extended?

The answer is no:

A State’s duties under the Convention to a refugee reaching a particular territory for whose international relations the State is responsible are in principle and in normal circumstances limited to providing and securing the refugee’s Convention rights in the context of that territory [paragraph 89].

The Court of Appeal’s contrasting view of the matter — see paragraph 82 of its judgment — was “mistaken”.

(iii) Can the UK fulfil its Convention obligations by paying Cyprus to discharge them?

In particular:

(a) Was the United Kingdom in principle entitled to fulfil its obligations to refugees in the SBAs by arranging for support to be provided by the Republic of Cyprus?

(b) If so, were the terms of the Memorandum of Understanding (including the 2003 Refugee Ordinance) a proper basis on which to do so?

Yes to all of the above, basically. The court found that “nothing in the Convention, in our opinion, is expressly directed to a situation like that which exists on the island of Cyprus, and nothing in it is expressly inconsistent with the nature of the arrangements which the United Kingdom has made with the Republic of Cyprus” (paragraph 94).

Unresolved issues

The court invited further submissions on whether the UK was entitled to hand the refugees over to Cyprus, a country they have resisted settling in for 20 years. The questions the justices want addressed are:

(iv) Assuming the 2003 Memorandum was valid for those within its scope:

(a) Was the United Kingdom entitled in 2005 to make similar arrangements for the provision by the Republic of facilities in respect of the respondents living in the SBAs without their consent, given their lawful and accepted presence as refugees in the SBAs?

(b) If such transfer of responsibility was permissible, was the 2005 “agreement” with the Republic a legally effective means of doing so, having regard to its informality and the absence of incorporation into SBA law?

(c) Has the support of the Republic in accordance with the 2005 agreement been available in practice, and can it be assured in the future?

(v) If the 2005 agreement, for whatever reason, was not a legally effective means of discharging the United Kingdom’s obligations to the respondents under the Convention, or if such support has not been available in practice, what are the consequences, in terms of rights or remedies potentially available in these proceedings, and how should the court give effect to them in its order?

The court expresses the hope, no doubt sincere, that “with the benefit of this interim judgment, the parties will be able reach agreement without further argument”. Given the course of dealings so far, further legal limbo seems more likely.

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