Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
16. The requirement that a foreign national applying for refugee status must, to qualify as a refugee, be outside his country of nationality is unambiguously expressed in the Convention definition of refugee quoted in para 6 above. The point could not be more clearly expressed than in para 88 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992):
17. In his work Convention Relating to the Status of Refugees (Institute of Jewish Affairs, 1953), Nehemiah Robinson wrote:
This opinion was endorsed by Weis (op cit, pp 123-124) and Grahl-Madsen (op cit, p.94). It was upheld by a majority of the United States Supreme Court in Sale, Acting Comr, Immigration and Naturalisation Service v Haitian Centers Council Inc 509 US 155 (1993), p183, fn 40. It has been upheld by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Ibrahim, above, para 136, and Minister for Immigration and Multicultural Affairs v Khawar  HCA 14, (2002) 210 CLR 1, para 42. In the last passage cited, McHugh and Gummow JJ said:
The House was referred to no judicial authority to contrary effect. It has had the benefit of expert and authoritative commentary on the negotiations which culminated in the 1951 Convention, a legitimate guide to interpretation if the effect of a provision is in doubt and the travaux préparatoires yield a clear and authoritative answer: see article 32 of the Vienna Convention on the Law of Treaties. Those conditions are, in my opinion, met in this case when the scope of article 33 of the Convention falls to be considered. As appears from Weis, The Refugee Convention 1951 (Cambridge, 1995, pp 328, 334, 335) and "The UN Declaration on Territorial Asylum" (1969) CYIL 92, 124, "expel" was understood to apply to a refugee who had already been admitted to the territory of a country. There was more doubt about the meaning of "refouler". It was however understood that the expression should have the same meaning as "return", applicable to refugees who had already entered a country but were not yet resident there. The potential ambiguity was resolved by agreement that the French word refoulement (refouler in verbal use) should be included in brackets and between inverted commas after the English word "return" wherever the latter appeared in the text. In 1967 the United Nations adopted a Declaration on Territorial Asylum which provided, in article 3, that no person entitled to invoke article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier, but a conference held in 1977 to embody this and other provisions in a revised convention ended in failure. As Gummow J put it in Ibrahim (2000) 204 CLR 1, para 142, in his judgment given in October 2000,
18. Lord Lester of Herne Hill QC, for the appellants, did not seek to advance what would have been an impossible contention, that the appellants were covered by the express provisions of the 1951 Convention. Plainly they were not, for they had at no stage been outside the country of their nationality nor within this country and the procedures adopted by the British authorities at Prague airport did not involve expelling or returning them to the frontiers of the Czech Republic, a state they had never left. Instead, Lord Lester urged that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and purpose clearly stated in the preamble quoted in full in para 6 above. This is, in my opinion, a correct approach to interpretation of a convention such as this and it gains support, if support be needed, from article 31(1) of the Vienna Convention on the Law of Treaties which, reflecting principles of customary international law, requires a treaty to be interpreted in the light of its object and purpose. But I would make an important caveat. However generous and purposive its approach to interpretation, the court's task remains one of interpreting the written document to which the contracting states have committed themselves. It must interpret what they have agreed. It has no warrant to give effect to what they might, or in an ideal world would, have agreed. This would violate the rule, also expressed in article 31(1) of the Vienna Convention, that a treaty should be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context. It is also noteworthy that article 31(4) of the Vienna Convention requires a special meaning to be given to a term if it is established that the parties so intended. That rule is pertinent, first, because the Convention gives a special, defined, meaning to "refugee" and, secondly, because the parties have made plain that "refouler", whatever its wider dictionary definition, is in this context to be understood as meaning "return". It is in principle possible for a court to imply terms even into an international convention. But this calls for great circumspection since, as was said in Brown v Stott  1 AC 681, 703,
and caution is needed
19. In urging a broader and less literal approach to interpretation of the Convention, Lord Lester relied on article 26 of the Vienna Convention, entitled Pacta sunt servanda, which requires that a treaty in force should be performed by the parties to it in good faith and also on the requirement in article 31(1) that a treaty should be interpreted in good faith. Taken together, these rules call for good faith in the interpretation and performance of a treaty, and neither rule is open to question. But there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do. The principle that pacta sunt servanda cannot require departure from what has been agreed. This is the more obviously true where a state or states very deliberately decided what they were and were not willing to undertake to do. The important backdrop to the Convention was well described by Hyndman, "Refugees under International Law with a Reference to the Concept of Asylum" (1986) 60 ALJ 148, 153, in a passage quoted by McHugh and Gummow JJ in Khawar, above, para 44:
While a state party must show good faith in interpreting and performing a treaty obligation, the International Court of Justice made plain in In re Border and Transborder Armed Actions (Nicaragua v Honduras)  ICJ Rep 69, para 94, and repeated in In re Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria)  ICJ Rep 275, para 39, that
20. Lord Lester relied by analogy on the important decision of the European Court of Human Rights in Golder v United Kingdom (1975) 1 EHRR 524. In that case the applicant, while a serving prisoner, had sought to consult a solicitor with a view to issuing libel proceedings but had been denied access to the solicitor. He complained of interference with his article 6 right to a fair and public determination of his civil rights and obligations but faced the difficulty that, without legal help, he had been unable to initiate a proceeding to which his fair trial right could attach. Despite this difficulty his application succeeded and the Court held in paras 35-37:
The analogical argument based on Golder is to the following effect: had the appellants not been effectively prevented by the UK authorities from travelling to this country, they could have done so and could on arrival have applied for asylum; that application would then have been assessed and, if the requisite grounds were established, granted; the British authorities' conduct in preventing the appellants travelling to the UK and failing to evaluate their asylum applications in Prague should not prejudice the appellants. There are, in my opinion, several reasons why this argument cannot prevail. In the first place, the Court's judgment in Golder was in large measure based on a detailed analysis of the French text of the European Convention and on the Court's interpretation of that Convention as a whole. But there are more fundamental objections. Nothing in Mr Golder's claim was inconsistent with any provision of article 6 or any other article of the European Convention, indeed the right claimed was held to be inherent in article 6. By contrast, the appellants' claim is inconsistent with the text of the Refugee Convention since it puts those expressly excluded from the protection of the Convention in the same position as those expressly included. It is a further point of distinction that Mr Golder on any showing had a right under article 6; the argument was as to the scope of that right. By contrast, the appellants had no right save such as might be correlative with the obligations undertaken by the United Kingdom in the 1951 Convention; but such obligations were dependent on the appellants being outside the state of their nationality, which they never were.
21. Reliance was also placed on the European Convention in a more direct way. Lord Lester accepted that the application of the Convention was essentially territorial, and acknowledged that, save for a fleeting reference in article 5(i)(f) and protocol number 4 (which the United Kingdom has not ratified), the Convention does not directly address issues of immigration and asylum. But there were, he submitted, situations in which a member state could, through the action of its agents outside its territory, assume jurisdiction over others in a way that could engage the operation of the Convention, and he suggested that this was one of them. The first of these points is correct, and also important. In Bankovic v Belgium (2001) 11 BHRC 435 the Court accepted (para 59) "that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial", and added (para 67):
Its conclusions, so far as relevant for present purposes, were expressed in paras 71 and 73:
I have the very greatest doubt whether the functions performed by the immigration officers at Prague, even though they were formally treated as consular officials, could possibly be said to be an exercise of jurisdiction in any relevant sense over non-UK nationals such as the appellants. But even if this be assumed in the appellants' favour (as, on different facts, the Court of Appeal was content to assume in R(B) v Secretary of State for the Foreign and Commonwealth Office  EWCA Civ 1344, 18 October 2004, para 66), the agreed facts summarised in para 3 above do not disclose any threat to life such as might engage article 2 of the European Convention or any risk of torture or inhuman or degrading treatment or punishment such as might engage article 3. The appellants were at all times free to travel to another country, or to travel to this country otherwise than by air from Prague. The appellants' position differs by an order of magnitude from that of the Haitians, whose plight was considered in Sale, above, and whose treatment by the United States authorities was understandably held by the Inter-American Commission of Human Rights (Report No 51/96, 13 March 1997, para 171) to breach their right to life, liberty and security of their persons as well as the right to asylum protected by article XXVII of the American Declaration of the Rights and Duties of Man, of which the Commission found the United States to be in breach in para 163. The Commission also found the United States to be in breach of article 33(1) of the Refugee Convention: paras 156-158. This was a view shared by Blackmun J in his dissent in Sale. The facts differ from the present case since the Haitians, although they never reached the United States, were certainly outside Haiti, the country of their nationality.
22. With the strong and erudite support of Mr Goodwin-Gill, Lord Lester submitted, first, that customary international law is part of the common law and, secondly, that customary international law precludes a state from treating a potential or prospective applicant for asylum as the UK authorities treated the appellants, that is, by refusing them leave to enter and effectively thwarting their journey by air from Prague to the UK without examining the merits of any asylum claim the appellants, if allowed to travel, would make. I shall consider first the second of these submissions.
23. The conditions to be satisfied before a rule may properly be recognised as one of customary international law have been somewhat differently expressed by different authorities, but are not in themselves problematical. Guidance is given by the International Court of Justice in the North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands)  ICJ Rep 3, paras 70-71, on the approach where a treaty made between certain parties is said to have become binding on other states not party to the treaty:
The relevant law was, I think, accurately and succinctly summarised by the American Law Institute in its Restatement of the Foreign Relations Law of the United States (Third) vol 1, 1986, para 102(2) and (3):
This was valuably supplemented by a comment to this effect:
It is in my opinion clear, applying these principles, that even if the interpretation I have put on the Refugee Convention is accepted as correct, that is by no means the end of the appellants' international law argument. For the convention was made more than half a century ago. Since then the world has changed in very many ways. The existence of the Convention is no obstacle in principle to the development of an ancillary or supplementary body of law, more generous than the Convention in its application to those seeking asylum as refugees. That, essentially, is the argument advanced for the appellants.
24. The principles which should govern the treatment of those seeking asylum as refugees have continued to be the subject of continuing international discussion, and the appellants were able to point to a considerable body of material on the subject. I will refer to only some of it. In 1966 the Asian-African Legal Consultative Committee formulated the Bangkok Principles, which defined a refugee as one who had left the country of his nationality and provided that "A State has the sovereign right to grant or refuse asylum in its territory to a refugee". In 1967 the Committee of Ministers of the Council of Europe recommended (resolution (67)14) that member states should act in a particularly liberal and humanitarian spirit in relation to persons seeking asylum on their territory and that they should
In 1977 the UNHCR Executive Committee (in Conclusion No 6 (XXVIII) "Non-Refoulement" Report of the 28th Session: UN doc A/AC. 96/549, para 53.4) reaffirmed
The same body reiterated in 1981 (Conclusion No 22 (XXXII, 1981, "Protection of Asylum-Seekers in Situations of Large-Scale Influx": Report of the 32nd Session: UN doc A/AC.96/601, para 57(2)) that
In 1984 the Committee of Ministers of the Council of Europe (Recommendation No R(84)1) adopted Resolution (67)14 and considered that the principle of non-refoulement had been recognised as a general principle applicable to all persons. In the same year a colloquium held at Cartagena, Colombia, on the international protection of refugees in Central America, Mexico and Panama reiterated
The states parties to the 1951 Convention met at Geneva in December 2001 and adopted a Declaration (doc HCR/MMSP/2001/09, 16 January 2002) in which they called for universal adherence to the Convention and acknowledged
The International Law Association, meeting in New Delhi in April 2002, referred in Resolution 6/2002 to "the fundamental obligation of States not to return (refouler) a refugee in any manner whatsoever to a country in which his or her life or freedom may be threatened" and declared:
Attention should lastly be drawn to General Comment No 31 ("The Nature of the General Legal Obligation Imposed on States Parties to [the International Covenant on Civil and Political Rights]") of the Human Rights Committee of the United Nations adopted on 29 March 2004:
The United Kingdom is a state party to the ICCPR but has not incorporated that Covenant (which contains no article specifically directed to asylum) into its domestic law.