(back to preceding text)

    25.  The appellants rely very strongly on an Opinion given by Sir Elihu Lauterpacht QC and Daniel Bethlehem QC on "The scope and content of the principle of non-refoulement" published in Refugee Protection in International Law (ed Feller, Türk and Nicholson, Cambridge, 2003). Among the conclusions reached by these eminent authorities are these:

"61.  These principles will be particularly relevant to the determination of the application of the principle of non-refoulement in circumstances involving the actions of persons or bodies on behalf of a State or in exercise of governmental authority at points of embarkation, in transit, in international zones, etc. In principle, subject to the particular facts in issue, the prohibition on refoulement will therefore apply to circumstances in which organs of other States, private undertakings (such as carriers, agents responsible for checking documentation in transit, etc) or other persons act on behalf of a Contracting State or in exercise of the governmental activity of that State. An act of refoulement undertaken by, for example, a private air carrier or transit official acting pursuant to statutory authority will therefore engage the responsibility of the State concerned.

67. The reasoning in these cases supports the more general proposition that persons will come within the jurisdiction of a State in circumstances in which they can be said to be under the effective control of that State or are affected by those acting on behalf of the State more generally, wherever this occurs. It follows that the principle of non-refoulement will apply to the conduct of State officials or those acting on behalf of the State wherever this occurs, whether beyond the national territory of the State in question, at border posts or other points of entry, in international zones, at transit points, etc."

Plainly, these observations are supportive of the appellants' case.

    26.  There would appear to be general acceptance of the principle that a person who leaves the state of his nationality and applies to the authorities of another state for asylum, whether at the frontier of the second state or from within it, should not be rejected or returned to the first state without appropriate enquiry into the persecution of which he claims to have a well-founded fear. But that principle, even if one of customary international law, cannot avail the appellants, who have not left the Czech Republic nor presented themselves, save in a highly metaphorical sense, at the frontier of the United Kingdom. Is there a rule of customary international law which provides that if a national of country A, wishing to travel to country B to claim asylum, applies in country A to officials of country B, he may not be denied leave to enter country B without appropriate enquiry into the merits of his asylum claim? It is an important question, since if there is such a rule it binds all states, the 140 or so states which are parties to the 1951 Convention and the 50 or so states which are not.

    27.  I think it a little doubtful whether a consensus of academic opinion has been demonstrated in favour of the rule for which the appellants contend. Even if it had, that would not be conclusive for, as Cockburn CJ said in R v Keyn (1876) 2 Ex D 63, 202,

"even if entire unanimity had existed in respect of the important particulars to which I have referred, in place of so much discrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage …"

In considering whether the rule contended for has received the assent of the nations, it is pertinent to recall that the states parties to the 1951 Convention have not, despite much international discussion, agreed to revise its terms or extend its scope at any time since 1967. None of the citations in para 24 above is from a legislative instrument. The House was referred to no judicial decision supporting the rule contended for and a number of recent decisions (Sale in the United States, Ibrahim and Khawar in Australia) are inimical to it. Have the states in practice observed such a rule? It seems to me clear that they have not.

    28.  Section 1 of the Immigration (Carriers' Liability) Act 1987 provided that where a person requiring leave to enter the United Kingdom arrived in this country by ship or by aircraft and failed to produce a visa where required, the carrier by sea or air should be liable to pay a penalty of £2000. The visa regime and the imposition of liability on carriers were complementary measures intended to stem the flow of applicants for asylum, as Simon Brown LJ explained in R v Secretary of State for the Home Department, Ex p Hoverspeed [1999] INLR 591, 594-595:

"What, then, is it which is said to justify placing these burdens, and most notably ICLA, upon carriers? The answer is said to be the imperative needs of immigration control in the face of ever-growing pressures from around the world. This too is deposed to in great detail by the respondent and once again I shall simplify it. In 1986 there was a significant increase in the number of asylum seekers, in particular from the Indian subcontinent and West Africa. In the result the visa requirement was extended to India, Pakistan, Bangladesh, Ghana and Nigeria. ICLA was passed as a necessary adjunct of the visa regime and, more generally, to complement immigration control and facilitate procedures at the port of entry. As the then Home Secretary, Mr Douglas Hurd, made plain at the second reading of the Bill in March 1987, it was intended to 'make it much more difficult for those who want to come to this country, but who have no valid grounds for doing so … It is also intended to stop abuse of asylum procedures by preventing people travelling here without valid documents and then claiming asylum before they can be returned'.

The logical necessity for carriers' liability to support a visa regime is surely self-evident. Why require visas from certain countries (and in particular those from which most bogus asylum seekers are found to come) unless visa nationals can be prevented from reaching our shores? Their very arrival here otherwise entitles them to apply for asylum and thus defeats the visa regime. Without ICLA there would be little or no disincentive for carriers to bring them."

In an article published in 1998 ("United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention" (1998) 10 Int J Refugee Law 205, 209-210), Richard Dunstan, formerly Refugee Officer, Amnesty International United Kingdom, graphically described the practice of some leading countries:

"There can be little doubt that this pattern of the criminal conviction and imprisonment of would-be asylum-seekers for their use of false travel documents is related to the imposition of financial penalties under 'carrier sanctions' legislation in both the United Kingdom and North America. In recent years, and in common with many other western countries, the United Kingdom, Canada and the United States have imposed visa regimes on nationals of practically all significant refugee-producing countries, in an apparent attempt to reduce the number of would-be asylum-seekers from such countries arriving at their borders. These visa regimes have then been enforced by the imposition of heavy financial penalties on those transport operators bringing passengers lacking a valid visa where one is required. For example, under the Immigration (Carriers' Liability) Act 1987, the United Kingdom authorities impose a financial penalty of £2,000 per passenger brought without either a valid passport or a valid visa where one is required. Introducing this legislation in March 1987, the then Home Secretary, Douglas Hurd, stated that 'the immediate spur to this proposal has been the arrival of over 800 people claiming asylum in the three months up to the end of February 1987'. Between May 1987 and October 1996, fines totalling £97.6 million were imposed on over 440 airlines and shipping companies. The United Kingdom authorities have also provided training, advice and technical support in respect of the detection of false travel documents to airline staff based at various points of embarkation. In September 1996, for example, the Ethiopian News Agency (ENA) reported that the British Ambassador in Addis Ababa had recently donated forgery detection equipment to the Ethiopian Immigration Service; the same ENA report quoted the Ambassador as saying that a number of British immigration officers had spent two weeks in Addis Ababa in October 1995, training both Ethiopian immigration officers and Ethiopian Airline staff in the 'detection of forged documents and British visa and passport requirements'.

Similarly, in the United States a financial penalty of US$3,000 per improperly-documented passenger may be imposed under section 273 of the Immigration and Nationality Act 1952, the penalty having been increased from US$1,000 in 1990. And in Canada a financial penalty of up to CAN$3,200 per improperly-documented passenger may be imposed under the Immigration Act 1976, as amended. As long ago as 1986, a total of 541 airlines were each fined CAN$1,000 by the Canadian authorities for not demonstrating sufficient vigilance in their checking of passengers' travel documents …"

A study conducted for the European Council on Refugees and Exiles, published in February 1999, showed that all states parties to the Schengen Convention, plus Norway and Iceland, who had concluded a parallel convention, had introduced a system of carriers' liability. Of 17 Western European countries only Ireland and Switzerland, at that time, had not. There was no evidence before the House to show the effect on prospective applicants for asylum of foreign countries' visa and carriers' liability regimes, but there is no reason to suppose that their effect is any different from our own. The evidence in the present case states that

"But for the existence of the new pre-clearance powers under the 2000 Order, [the Home Secretary] may well have felt constrained to promote the introduction [of] a visa regime in respect of the Czech Republic, as has occurred (for example) with other countries that have generated large numbers of asylum applications."

Had a visa regime been imposed, the effect on the appellants, so far as concerned their applications for asylum, would have been no different. But it could not plausibly be argued that a visa regime would have been contrary to the practice of the nations. That conclusion must in my opinion apply also to the pre-clearance procedure which the appellants challenge. This makes it unnecessary to address the first submission recorded in para 22 above on the extent to which and the manner in which international law is or may become part of the common law.

    29.  I should briefly mention two additional arguments relied on by the appellants. It was said that the Prague Airport procedure violated the principle of legality. That principle is perhaps most clearly stated by Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131:

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

This is an important and valuable principle. But it has no application to the present case, since the appellants enjoyed no right which, on any construction, Parliament had legislated to infringe or curtail.

    30.  It was argued on behalf of the three appellants who stated their purpose of seeking asylum to the immigration officers in Prague that leave to enter should not have been refused on the ground (rule 320 of the Immigration Rules: see para 5 above) that entry was being sought for a purpose not covered by the Rules. It was said that applying for asylum is a purpose covered by the Rules. It is of course true that the Rules lay down the procedure to be followed when an application for asylum is made. But it does not follow that applying for asylum is a purpose covered by the Rules, and it seems to me clear that it is not. Even if an application for asylum is duly made, this does not lead to the grant or refusal of leave to enter until the application is determined.

    31.  I am in full agreement with the opinion of my noble and learned friend, Lord Hope of Craighead, which I have had the opportunity to read in draft. For all these reasons, in essence those of the judge and the Court of Appeal, I would reject the appellants' arguments on the issues canvassed in this opinion. But the appeal must be allowed, for the reasons given by my noble and learned friend Baroness Hale.

LORD STEYN

My Lords,

    32.  In this appeal many significant issues have been debated. But surely the most important issue is whether the operation mounted by immigration officers at Prague Airport under the authority of the Home Secretary in 2001 and 2002 discriminated against Roma on grounds of their race. It is unlawful for public authorities, such as the Home Secretary and an immigration officer, to discriminate on racial grounds in carrying out any of their functions. The appellants put forward a case of direct discrimination on the grounds of race under the Race Relations Act 1976. The Home Secretary and the immigration officers strenuously denied that any discrimination had taken place. Mr Howell, who appeared on behalf of the Home Secretary and the immigration officer, invited the House of Lords to regard the allegations as very serious. He submitted that the case of the appellants should be viewed with an initial scepticism that the United Kingdom could have put in place a system of discrimination on the grounds of race. That is how I will approach the matter.

    33.  The operation at Prague Airport is unique in the history of the immigration service. It was the first time such a procedure had been undertaken. And it has not been repeated. But the decision of the House transcends the particular circumstances of the case: it has implications for the responsibility of government not only for immigration policy but also for race relations policy generally.

    34.  The essential features of the operation can be stated quite simply. It was designed as a response to an influx of Czech Roma into the United Kingdom. The immigration officers knew that the reason why they were stationed in Prague was to stop asylum seekers travelling to the United Kingdom. They also knew that almost all Czech asylum seekers were Roma, because the Roma are a disadvantaged racial minority in the Czech Republic. Thus there was from the outset a high risk that individuals recognised as Roma would be targeted by specially intrusive and sceptical questioning. There was a striking difference in treatment of Roma and non Roma at the hands of immigration officers operating at Prague Airport. The statistics show that almost 90% of Roma were refused leave to enter and only 0.2% of non Roma were refused leave to enter. Roma were 400 times more likely than non Roma to be refused permission. No attempt was made by the Home Office to explain by the evidence of immigration officers the difference in treatment of Roma and non Roma. Although the Home Office was from the beginning on notice of the high risk of discrimination on grounds of race, no attempt was made to guard against discrimination.

    35.  New documents rightly produced by the Home Office during the hearing of the appeal are revealing. One extract is sufficient to show what immigration officers must have understood their functions at Prague Airport to involve:

"The fact that a passenger belongs to one of these ethnic or national groups will be sufficient to justify discrimination - without reference to additional statistical or intelligence information - if an immigration officer considers such discrimination is warranted."

The immigration officers would have read this document in the light of a formal authorisation by the Secretary of State under section 19D of the Race Relations Act 1976. That authorisation purported to confer on immigration officers the express power to discriminate by reason of a person's ethnic origin against Roma. It is true that the Secretary of State does not rely on the authorisation. But it would have been known to immigration officers sent to Prague. Counsel for the Secretary of State argued that the authorisation was not in law an instruction. I would accept that. But the documents nevertheless reveal how immigration officers would have understood their principal task.

    36.  Following the principles affirmed by the House of Lords in Nagarajan v London Regional Transport [2000] 1 AC 501, there is in law a single issue: why did the immigration officers treat Roma less favourably than non-Roma? In my view the only realistic answer is that they did so because the persons concerned were Roma. They discriminated on the grounds of race. The motive for such discrimination is irrelevant: Nagarajan v London Regional Transport, supra.

    37.  The reasoning of the majority of the Court of Appeal in this case had at first glance the attractiveness of appearing to be in accord with common sense: R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] QB 811. Simon Brown LJ said (para 86, 840):

"because of the greater degree of scepticism with which Roma applicants will inevitably be treated, they are more likely to be refused leave to enter than non-Roma applicants. But this is because they are less well placed to persuade the immigration office that they are not lying in order to seek asylum. That is not to say, however, that they are being stereotyped. Rather it is to acknowledge the undoubtedly disadvantaged position of many Roma in the Czech Republic. Of course it would be wrong in any individual case to assume that the Roma applicant is lying, but I decline to hold that the immigration officer cannot properly be warier of that possibility in a Roma's case than in the case of a non -Roma applicant. If a terrorist outrage were committed on our streets today, would the police not be entitled to question more suspiciously those in the vicinity appearing to come from an Islamic background?"

Mantell LJ agreed with this analysis. Laws LJ dissented. In "Equality: The Neglected Virtue" [2004] EHRLR 142, Mr Rabinder Singh QC convincingly exposed the flaw in the reasoning of the majority. He stated (at p154):

"It is clear that there was less favourable treatment. It is also clear that it was on racial grounds. As all the judges acknowledged, the reason for the discrimination is immaterial: in particular, the absence of a hostile intent or the presence of a benign motive is immaterial. What the majority view amounts to is, on analysis, an attempt to introduce into the law of direct discrimination the possibility of justification. But Parliament could have provided for that possibility - as it has done in the context of allegations of indirect discrimination - and has chosen not to do so. In so far as the fields of immigration and nationality may be thought to require special treatment, permitting discrimination on certain grounds (ethnic or national origins) but not others (such as colour), again Parliament has catered for that possibility in enabling a minister to give an authorisation. The Government did not want to rely on the authorisation in the Roma case: that was a matter for its tactical choice but the courts should not bend over backwards to save the executive from what may have been its own folly. Their duty, as Laws LJ said, is to apply the will of Parliament as enacted in its laws. Moreover, the danger in the majority's reasoning is that it is capable of application outside the limited areas with which the Court was concerned. For example, it could be applied in the context of police stop and search powers. Simon Brown LJ expressly gives an example from just that context. This is potentially very damaging to race relations law going beyond what may have been perceived to be the problem in the Roma case itself."

I am in respectful agreement with this analysis. In my view the majority was wrong. Laws LJ was right.

    38.  I agree with the conclusion of Baroness Hale of Richmond that the system operated by immigration officers at Prague Airport was inherently and systemically discriminatory on racial grounds against Roma, contrary to section 1(1)(a) of the Race Relations Act.

    39.  It is now necessary to consider to what extent the operation at Prague Airport was also contrary to the obligations of the United Kingdom under international treaties to which the United Kingdom is a party and under customary international law.

    40.  It is necessary to consider the Convention relating to the Status of Refugees (1951). Article 3 provides as follows:

"The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin."

Before I consider the reach of article 3, it is important to bear in mind the status of the Refugee Convention in United Kingdom in law. It is not a mere unincorporated treaty. Under rule 16 of the Statement of Changes in Immigration Rules (1983) (HC 169) it was formerly provided:

"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmnd 3906). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments . . ."

In R v Secretary of State for the Home Department, Ex p Singh, The Times, June 8, 1987, the Divisional Court held that the Refugee Convention had "indirectly" been incorporated under English law. Later in the same year in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990 Lord Keith of Kinkel observed that "The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law." Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with the opinion of Lord Keith. The difficulty is, however, that Immigration Rules are not law but merely instructions to immigration officers. By themselves they cannot effect an incorporation.

    41.  Against this background, Parliament decided to make reference to the Refugee Convention in primary legislation. Parliament was informed that the new provision was to be "an additional safeguard": Hansard, Standing Committee A, 19 November 1992, col 151. Section 2 of the Asylum and Immigration Appeals Act 1993 provides:

"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."

It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. After all, it would be bizarre to provide that formal immigration rules must be consistent with the Convention but that informally adopted practices need not be consistent with the Convention. The reach of section 2 of the 1993 Act is therefore comprehensive.

    42.  Parliament must be taken to have been aware, in enacting the 1993 Act, that the courts had treated references in the immigration rules to the Refugee Convention as "indirectly" or "for practical purposes" incorporating it into domestic law: Bennion, Statutory Interpretation, 4th ed (2002), p 469. In the context of the decisions of the Court of Appeal and House of Lords in 1987 Parliament must have intended that the strengthened reference to the Refugee Convention in primary legislation would be treated by the courts as an incorporation of the Refugee Convention into domestic law. Moreover, the heading of section 2 is "Primacy of the Convention." This is a relevant and significant pointer to the overriding effect of the Convention in English law: R v Montila and Others [2004] UKHL 50, paras 31-37, per Lord Hope of Craighead. It is true, of course, that a convention may be incorporated more formally by scheduling it to an enactment, eg the Carriage of Goods by Sea Act 1971 which enacted the Hague-Visby Rules. But there is no rule specifying the precise legislative method of incorporation. It is also possible to incorporate a treaty in part, e.g. the European Convention on Human Rights was incorporated into our law without article 13: see Human Rights Act 1998. In my view it is clear that the Refugee Convention has been incorporated into our domestic law.

    43.  The question is whether, in addition to acting in breach of the Race Relations Act 1976, the immigration officers operating at Prague Airport were in breach of article 3 of the Refugee Convention as incorporated into United Kingdom law. Having given the matter careful consideration, I am driven to the conclusion that article 3 is not applicable. The non discrimination provision in article 3 is limited to the application of "the provisions of this Convention." Article 3 does not contain a freestanding non discrimination provision. It resembles the weak provision in article 14 of the European Convention on Human Rights (1950). The appellants never left the Czech Republic and are therefore not "refugees" under article 1 of the Refugee Convention. They also never presented themselves at the frontier of the United Kingdom and properly construed the non-refoulement obligation under article 33 is not engaged. It is true, of course, that the Refugee Convention is a living instrument and must be interpreted as such. It must also be interpreted in accordance with good faith: article 31 of the Vienna Convention on the Law of Treaties. These are very important principles of interpretation. But they are not capable of filling gaps which were designedly left in the protective scope of the Refugee Convention. In my view there is no answer to the reasoning of Lord Bingham of Cornhill on these points.