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High Court rules Cyprus refugees decision unlawful

Home Secretary forced to rethink ban on six refugees and their children, stranded in Cyprus since 1998, coming to the UK

28 April 2016

In an important judgment, the High Court today declared that the Home Secretary’s decision, not to allow entry to the UK for six refugees, and their 19 children, currently stranded on a MoD base in Cyprus since 1998, is unlawful and must be quashed.

In the ruling the judge, Mr Justice Foskett, has ordered Theresa May to retake her decision in light of the judgment and all relevant up-to-date factors. In October 1998, a group of 75 individuals from Ethiopia, Iraq, Sudan and Syria, were washed up on the British Sovereign Base Area (SBA) after a boat in which they were travelling to Italy foundered off the coast of Cyprus.   

Following their arrival, the six claimants who took this case were detained for lengthy periods of ranging from eight to fourteen months.  

In 1999 - 2000 the six men and women were released after being recognised as refugees under the 1951 Refugee Convention following a procedure conducted by the SBA Administration in conjunction with the Home Office and UNHCR.   

The six Claimants and their children have remained living on the SBA for the past 17 years stuck in a legal limbo. Many of the children have spent their whole lives on the SBA and those who were born there possess British Overseas Territories Citizenship.

The Court heard that UK and SBA officials repeatedly argued that the refugees would have to be resettled in the UK but this was rejected at a Ministerial level because it was “not on politically”.1

Instead the Government sought to persuade the Republic of Cyprus (RoC) to accept the Claimants whilst continuing to pay them subsistence benefits.

Documents disclosed during the proceedings showed the RoC’s reluctance to accept the refugees as they purportedly told the UK that “if [the UK] claim sovereignty, with all the benefits that implies, [the UK] cannot shrug off responsibilities…”2

During the hearing, lawyers for the Government argued that it came to an ‘informal agreement’ with the RoC to accept the refugees in 2005, seven years after the refugees washed ashore.

Following this ‘informal agreement’ the SBA withdrew essential services from the families in what documents disclosed during the proceedings revealed was an attempt to ‘encourage‘ them to seek transfer to the RoC.3

They did not move because they remain concerned that their status in the RoC is very precarious4 and maintain that they are the UK’s responsibility. Despite repeated requests the Government has failed to provide any written assurance from the RoC of this ‘informal agreement’.

According to their lawyers, the families have had to endure deteriorating living conditions on the SBA with no access to healthcare, living in bungalows which were due to be demolished in 1997 and have been found by the SBA to contain potentially harmful levels of asbestos.5

Expert reports commissioned by the UNHCR in 2013 found high levels of anxiety and depression amongst the families with all children being assessed to have suffered in their “psychological health” due to their living conditions.

A report prepared by an independent social worker for these proceedings made similar findings. In November 2014, in response to a joint letter from the UNCHR and the Claimants’ Cypriot lawyer, the Home Secretary refused to consider the Claimants for admission into the UK. 

It is that decision which was the subject of these judicial review proceedings and the High Court heard the case over six days at the start of March 2016.

In today’s complex judgment Mr Justice Foskett found that whilst the Refugee Convention does not apply to the SBA as a matter of international law, the UK and the SBAA are required to act within the spirit of the Refugee Convention because they adopted a policy to do so from the outset.

The judge held that whilst the UK Government could in principle discharge its obligations in this regard via the RoC, the Secretary of State failed to act within the spirit of the Refugee Convention in her decision of November 2014 as she did not take into account crucial concerns raised by the UNHCR.

As a result the judge held that the decision should be quashed.

Tessa Gregory, the claimants’ solicitor and partner at Leigh day stated: “We are pleased that the Court has quashed the Home Secretary’s decision. The Government can now avoid further costly legal proceedings by allowing this small group of recognized refugees to resettle in the UK.

“To do so would not create a dangerous precedent or a back-door to the UK, it would simply be a humanitarian response in recognition of the unique circumstances of these families. It is extraordinary that successive UK Governments have allowed this situation to fester for so long leaving the children of refugees to grow up in increasingly hopeless and squalid conditions.

“We hope that the Home Secretary will now do the right thing, until she does we will continue to seek the only lawful durable solution: resettlement of our clients in the UK”

Tag Bashir, the lead claimant said:

“We hope that with today’s judgment we are one step closer to providing our children with a decent future. I was 26 years old when I came to the SBA and for 17 years I have been trying to work and build a life for my family but there is nothing here.

“I worry every day about my three children and how this situation and the uncertainty is affecting them. I hope the UK Government will finally recognise that we are their responsibility and allow us to come to the UK where our only wish is to work hard and integrate into society”
Notes

1) See further paragraphs 76, 86, 91, 95 and 96 and the disclosure quoted.
2) See paragraph 83 and for details of the UK’s negotiations with the RoC see paragraphs 76 - 105
3) See paragraph 123.
4) Concerns which have been borne out on discovering that in 2008 the RoC indicated that it was not in fact prepared to accept the refugees (see paragraphs 141 - 144 of the judgment).
5) See paragraph 146.
6) See paragraphs 381 – 392 in relation to the Claimants’ living conditions.
It should also be noted that on 22 March 2016 the Council of Europe's Commissioner for Human Rights, Nils Muižnieks, published a memorandum on the human rights of asylum seekers and immigrants in the UK in which he made the following recommendation regarding the claimants and the families of failed asylum seekers who also arrived on the SBA in 1998:

"The Commissioner expresses his serious concern about the long-standing plight and precarious situation of the 67 refugees and asylum seekers who remain with their families in the UK SBAs in Cyprus since 1998. The UK government retains its sovereignty and effective control over the SBAs, thus being responsible for this group of persons who entered Cyprus through the SBA of Akrotiri. The Commissioner urges the authorities to live up to the UK’s tradition of humanitarianism and to meet its legal obligations, thus ending the protracted mental and psychological suffering of the persons concerned by resettling them, even belatedly, to the UK. There is no reason to believe that resettling this small group of persons to the UK after all these years would create a pull factor. (https://www.ein.org.uk/news/council-europe-publishes-memorandum-human-rights-asylum-seekers-and-immigrants-uk at paragraph 51)"

7) A summary of the principal conclusions are set out at paragraph 397 of the judgment and the judgment is accompanied by a press summary prepared by the judge.

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