Neutral Citation Number: [2016] EWHC 954 (Admin) Case No: CO/879/2015 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 28/04/2016 Before: MR JUSTICE FOSKETT - - - - - - - - - - - - - - - - - - - - - Between: R on the application of TAG ELDIN RAMADAN BASHIR & others Claimants - and – SECRETARY OF STATE FOR THE HOME DEPARTMENT Defendant and SOVEREIGN BASE AREA AUTHORITY Interested Party - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Raza Husain QC, Tom Hickman and Jason Pobjoy (instructed by Leigh Day) for the Claimants Thomas Roe QC and Penelope Nevill (instructed by Treasury Solicitor) for the Defendant Hearing dates: 2, 3, 4, 7, 9 and 10 March 2016 - - - - - - - - - - - - - - - - - - - - - Approved Judgment Judgment Approved by the court for handing down. Bashir & ors v SSHD MR JUSTICE FOSKETT: Introduction 1. The geographical location of Cyprus in the Mediterranean Sea represents the effective reason for the human, legal and diplomatic story that lies behind this case. Cyprus has been described as “at an important cross-roads between the Middle East and Europe” (see paragraph 316 below). 2. So far as the human story is concerned, a boat leaving the coast of Lebanon with the intention of travelling to Italy is likely to pass close to Cyprus. One such fishing boat (“a 40 foot clinker built open-decked vessel in poor condition”, according to a report dated 9 October 1998) left Telebibi near the Lebanese Tripoli at about midnight on 6 October 1998 carrying 75 people who were trying to escape from their home countries for a variety of reasons. The boat (described by one observer as “barely a floating coffin”) was operated by people smugglers who charged $2000 for each person for the proposed journey. After two days at sea the boat’s engine failed and the “crew” abandoned the boat in an inflatable with an outboard motor leaving the “passengers” behind. Some of the men on board succeeded in restarting the engine and, having sighted land, managed to steer the vessel towards what turned out to be a rocky shore line at the base of some cliffs near to Akrotiri on the south-west coast of Cyprus. (The sketch map in the Appendix demonstrates the position of Akrotiri.) The boat arrived there at about 17.00 on Thursday, 8 October 1998. 3. It was the good fortune of those on board, a group which included 10 adult women and 24 children (one of whom was only 2 days old), that British servicemen at the nearby RAF base became alerted to their plight. They were all airlifted by helicopter from the boat and taken initially to Episkopi within the Akrotiri Sovereign Base Area. Happily, unlike many who have attempted a similar journey, all survived. 4. The existence of the Akrotiri Sovereign Base Area (and also the Dhekelia Sovereign Base Area) on the island of Cyprus is a reflection of the geographical importance of Cyprus from the UK’s strategic military point of view (see paragraph 58 below). 5. Amongst those rescued were the six claimants in this action and various members of their respective families. As will appear, in the ensuing years various other children were born within those families (and certain other family members joined the claimants’ families) and this claim for judicial review is effectively brought on behalf of the whole group. What distinguishes the individual claimants and their families from some others who were on the boat is that the claimants have been recognised as “refugees” for the purposes of the 1951 Convention Relating to the Status of Refugees (‘the Refugee Convention’). 6. It is that Convention and the subsequent Protocol Relating to the Status of Refugees (‘the 1967 Protocol’) that represents the beginning of the legal story in this case. That legal story is set against the background of Cyprus ceasing to be a British colony and becoming a Republic in 1960 when at the same time two areas (Akrotiri and Dhekelia) were retained under UK sovereignty to enable them to continue to be used as military bases reflecting the strategic importance to which reference has been made above. Judgment Approved by the court for handing down. Bashir & ors v SSHD 7. The claimants and their families have essentially been permanently resident in the Dhekelia military base since their recognition as refugees. In the absence of what they say is any appropriate alternative, they wish to come to the UK. The Secretary of State says that they cannot do so. 8. The court is being invited to say whether the Secretary of State’s position is lawful. The legal issues in a nutshell and the nature of the judicial review claim 9. As indicated above, the Secretary of State has denied the claimants the option of entry to the UK. In essence the claimants assert that this breaches their rights under the Convention and the Protocol which they say apply to the military bases and thus apply to them, or, if that is wrong, that both have at least been expressly treated by the UK Government as applying to them and they should, therefore, be permitted entry to the UK. They also say that the Secretary of State’s decision means that they are discriminated against by reason of their status as refugees currently resident in one of the military bases and it thus infringes their rights under Article 14 of the European Convention on Human Rights (‘the ECHR’). They seek an order from the court quashing the decision to deny them entry to the UK. 10. The claimants seek to challenge the Secretary of State’s position by challenging a decision said to be contained in a letter dated 25 November 2014. 11. The Secretary of State contends that the Convention and the Protocol do not apply to the military bases as a matter of international law and, accordingly, the obligations asserted to exist by the claimants towards them do not arise. Alternatively, if contrary to that contention the UK owes obligations to the claimants under the Convention (or by virtue of treating them as entitled to the protection of the Convention), those obligations were discharged when in 2005 arrangements were made with the Republic of Cyprus (‘RoC’) by virtue of which the RoC recognised the claimants’ refugee status and agreed to accept the claimants as RoC residents with (a) access to its social services and welfare system and (b) the opportunity to apply for RoC (and thus EU) citizenship. The claim based upon unlawful discrimination is denied. 12. The Secretary of State also contends that the challenge to the letter of 25 November 2014 represents an attempt to bring the judicial review claim within time by challenging “an ancillary or consequential action when the claimants have been told on several occasions throughout the years that the UK would not admit them”. It is contended that the claim is out of time and should not be entertained. 13. Whilst maintaining the argument based on delay, Mr Thomas Roe QC, for the Secretary of State, sensibly and realistically acknowledged that where the future of recognised refugees (including their children) is concerned, the court will want to consider carefully the substance of the case advanced irrespective of any delay. I will, of course, return to it, but my essential focus will be upon the merits or otherwise of the competing arguments on the substantive issues. 14. The judicial review proceedings were issued on 24 February 2015, and thus just within 3 months of the letter of 25 November 2014. The parties agreed various extensions of time thereafter and William Davis J on 22 September 2015 ordered a Judgment Approved by the court for handing down. Bashir & ors v SSHD “rolled-up hearing” which is the procedural form in which the matter was listed before me. 15. Whatever conclusions I may come to, it would be idle to pretend that the claimants’ submissions do not cross the threshold of arguability and, accordingly, I grant permission to apply for judicial review. 16. Before moving to the substance of the arguments I should record this: leaving aside the witness statements on each side (which total 13), the Amended Statement of Facts and Grounds runs to 32 pages with 33 footnotes, the Detailed Grounds of Defence runs to 48 pages with over 100 footnotes (some of the footnotes in each document containing extensive citations and cross-references) and the claimants’ Skeleton Argument (including two Annexes) runs to 51 pages (with footnotes), all of those documents being single-spaced. The agreed bundles of statutory material, authorities and the like consist of 5 tightly-packed lever arch files with 138 divisions. Further material was added during the hearing. I make no complaints because the issues raised are important, but it needs to be appreciated that it has been quite impossible for me to follow every avenue that the text of these documents might suggest is there to be followed. I have focused principally on the matters that Mr Raza Husain QC, for the claimants, and Mr Roe advanced in the course of several days of oral argument. Anonymity order 17. Early in the hearing before me, Mr Husain applied for an anonymity order in relation to the claimants because of the children involved. 18. I invited the view of those representatives of the media in court and no objection was taken to the proposed order save that my attention was drawn to the fact that Mr Bashir’s name was already in the public domain. I granted an anonymity order with the exception of reference to Mr Bashir so that nothing would be reported that would lead to the identification of the children involved.
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