Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
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:
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,
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  INLR 591, 594-595:
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:
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
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  2 AC 115, 131:
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.
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 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  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  QB 811. Simon Brown LJ said (para 86, 840):
Mantell LJ agreed with this analysis. Laws LJ dissented. In "Equality: The Neglected Virtue"  EHRLR 142, Mr Rabinder Singh QC convincingly exposed the flaw in the reasoning of the majority. He stated (at p154):
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:
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:
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  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:
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  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.