Judgments - Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)

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    44.  It has been noted how in the early fifties weak non discrimination provisions were adopted in some early human rights treaties, namely in article 14 of the European Convention on Human Rights (1950) and articles 1 and 33 of the Refugee Convention (1951). But the strong moral condemnation of race discrimination in the Charter of the United Nations (1945) and in the Universal Declaration of Human Rights (1948) led in the sixties in more modern human rights instruments to the formulation of free standing non discrimination legal norms. The first of these treaties to be considered is the International Convention on the Elimination of All Forms of Racial Discrimination (1966). The first three preambles of this Convention read as follows:

    "Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organisation, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,

    Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,

    Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discriminate . . .

Article 2 provides:

    "1.  States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

    (a)  Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

    (b)  Each State Party undertakes not to sponsor, defend or support racial discrimination by any person . . ."

On 4 January 1969 this Convention entered into force. To date 169 states have become parties to it. On 6 April 1969 the United Kingdom ratified this treaty. The operation at Prague Airport placed the United Kingdom in breach of this international obligation.

    45.  The next relevant treaty provision is article 26 of the International Covenant on Civil and Political Rights (1966). It provides:

    "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

On 23 March 1976 this Convention entered into force. To date 152 states have become parties. On 20 August 1976 the United Kingdom ratified this treaty. The United Kingdom purported to exercise governmental authority at Prague Airport. The operation carried out at Prague placed the United Kingdom in breach of the International Covenant.

    46.  Lastly, I turn to customary international law. The Universal Declaration of Human Rights (1948) was a proclamation of ethical values rather than legal norms. In article 1 it stated that "All human beings are born free and equal in dignity and rights." Article 2 expressly condemned distinctions of any kind on the grounds of race. The moral force of this instrument was enormous. The European Convention on Human Rights (1950) and the Refugee Convention (1951) are direct descendants of the Universal Declaration. But they contained relatively weak legal norms of non-discrimination. The great theme which runs through subsequent human rights instruments, national, regional and international, is the legal right of equality with the correlative right of non-discrimination on the grounds of race. Since 1965 international treaties have established comprehensive and strong legal norms against discrimination on the grounds of race. In 1970 the majority of the International Court, consisting of twelve judges, delivering judgment in In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) [1970] ICJ Rep 3, at paras 33-34 referred to obligations erga omnes (ie binding on all states and also having the status of peremptory norms [jus cogens]) in contemporary international law which included "the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination." State practice virtually universally condemns discrimination on grounds of race. It does so in recognition of the fact that it has become unlawful in international law to discriminate on the grounds of race. It is true that in the world, as we know it, departures from this norm are only too many. But the international community has signed up to it. The moral norm has ripened into a rule of customary international law. It is binding on all states: see Shaw, International Law, 5th ed (2003), at p 257; Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, at pp 95, 112, 118, 169, 184 and 191; and Ragazzi, The Concept of International Obligations Erga Omnes, 1997, Chapter 7. The operation at Prague Airport was also a breach of this rule of customary international law.

    47.  For these reasons, as well as the reasons given by Baroness Hale on the discrimination issue, I would allow the appeal and I would make the declaration which Baroness Hale proposes.


My Lords,

    48.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill on the asylum issue and Baroness Hale of Richmond on the discrimination issue. For the reasons which they have given, with which I am in full agreement, I would make the order that Lady Hale proposes. I should like to add just a few footnotes to what they have said.

Rule 320 of the Immigration Rules

    49.  Mention should be made of the appellants' argument that a decision to refuse leave to enter the United Kingdom was inconsistent with rule 320 of the Statement of Changes in Immigration Rules (1994) (HC 395). Lord Lester of Herne Hill QC chose, in the interests of time, not to develop this argument orally. But he adopted the arguments which were included in his written case, and I should like to say why, in agreement with Simon Brown LJ in the Court of Appeal [2004] QB 811, paras 52-54, I think that this argument too cannot be accepted.

    50.  These rules form part of the domestic legislation which was extended to the operation at Prague Airport in July 2001. They were made under section 3(2) of the Immigration Act 1971. This subsection permits the Secretary of State to make rules as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter. Immigration officers are required in the exercise of their functions to act in accordance with such instructions given to them by the Secretary of State as are not inconsistent with the immigration rules: 1971 Act, Schedule 2, para 1(3). It was the statement in para 16 of the former Statement of Changes in the Immigration Rules (1983) (HC 169) that where a person is a refugee full account shall be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmnd 3906) ("the 1951 Convention") that enabled Lord Keith of Kinkel to observe in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990 that their provisions had for all practical purposes been incorporated into United Kingdom law.

    51.  An updated statement of the immigration rules was laid before Parliament on 23 March 1990 (HC 251). It was further updated with effect from 1 October 1994 in the light of section 2 of the Asylum and Immigration Appeals Act 1993, which states that nothing in the immigration rules shall lay down any practice which would be contrary to the 1951 Convention. Further statements of changes have been issued from time to time. As at the relevant date the rules provided, among other things:

    "320.  In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2 - 8 of these Rules … the following grounds for the refusal of entry clearance or leave to enter apply:

    Grounds upon which entry clearance or leave to enter the United Kingdom is to be refused

    (1)  the fact that entry is being sought for a purpose not covered by these Rules;

    Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused


    327.  Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under the [1951 Convention] for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.

    328.  All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the [1951 Convention]. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.

    334.  An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and (ii) he is a refugee, as defined by [the 1951 Convention]; and (iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of [the 1951 Convention], to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.

    336.  An application which does not meet the criteria set out in paragraph 334 will be refused."

    52.  The appellants argue that the refusal to grant leave to enter the United Kingdom to the individual appellants who said when they were interviewed that they were intending to claim asylum there was not authorised by rule 320. This is because leave to enter was being sought "for a purpose" which was covered by the Rules, namely for the purpose of making a claim for asylum in the United Kingdom. Thus, so the argument runs, the immigration officers at Prague Airport should have allowed the appellants to travel to the United Kingdom, neither granting nor refusing them leave to enter, in the light of what they said their purpose was when they were being interviewed in Prague. This would have enabled a decision to be taken on their arrival in the United Kingdom, where the immigration officers would have been required by rule 328 to refer their applications to the Secretary of State. They would then have been given limited leave to enter or been detained pending the Secretary of State's decision on their applications.

    53.  We must take the Rules as we find them for the purposes of this argument. The one thing that is crystal clear is that the making of an asylum claim is not one of the purposes for which leave to enter may be given. Nor are there any rules which say that this is one of the purposes for which a person may seek leave to enter. The purposes to which rule 320 refers apply to particular categories of entrants for which the Rules in terms provide, such as visitors, students, family members, persons seeking to enter or remain in the United Kingdom for employment, for training or work experience, and so on. For each of these categories the Rules set out the matters about which the immigration officer must be satisfied. None of these categories includes the seeking of asylum or the status of a refugee. It is also to be noted that rule 334, which provides for the granting of asylum, adopts the language of the 1951 Convention without any modification or enlargement. The Secretary of State must be satisfied, among other things, that the applicant is in the United Kingdom or has arrived at a port of entry in the United Kingdom and that he is a refugee as defined by the Convention. Plainly, neither of these requirements was satisfied in the case of the appellants. They were refused leave to enter while they were still at Prague Airport.

    54.  Recognising these difficulties, the appellants rely on the latter part of rule 320 which deals with cases which are not covered by other rules dealing with the grant or refusal of leave. In these cases, while leave to enter will "normally" be refused, the immigration officer is in terms of the rule not bound to refuse leave. But he is not bound to grant leave either. This is made clear by rule 17A of the Immigration Rules, inserted by Statement of Changes in Immigration Rules (2000) (HC 704), which provides that where a person is outside the United Kingdom but wishes to travel to the United Kingdom an immigration officer may give or refuse him leave to enter. The most that can be said is that, as the Secretary of State has power to grant exceptional leave to enter, such a person may be detained or granted temporary leave to enter pending a decision as to whether or not exceptional leave is to be granted.

    55.  The argument that the immigration officers at Prague Airport were not authorised by rule 320 to refuse leave to the appellants breaks down at this point. The appellants would have to show that the immigration officers were not authorised to refuse leave because the purpose for which the appellants were seeking to travel to the United Kingdom was one for which the Rules required that leave be granted. The latter part of rule 320 does not provide any support for that argument. The Rules lack any provision which requires that a person who wishes to claim asylum on arrival in the United Kingdom must be granted leave to enter before he begins his journey. As the respondents point out in their written case (para 123), visas are granted or refused on the same basis as leave to enter. There is no obligation under the Rules to grant a visa to a person who wishes to travel in order to seek asylum in this country. Equally there is no obligation to grant him leave to enter for this purpose.

    56.  For these reasons I am in no doubt that the argument which was based on rule 320 of the Immigration Rules must be rejected.

Good faith as a source of law

    57.  Lord Lester made much in the course of his argument of what he described as the obligation of good faith. He said that the actions of the immigration officers at Prague Airport were in breach of the 1951 Convention because their actions were designed, in breach of what he described as the obligation of good faith, to frustrate the central purposes of the Convention. This argument was supported by Mr Goodwin-Gill for the intervener. But he described good faith not as an obligation but as a principle. As he put in his written case, good faith is a general principle of customary international law which requires states, among other things, to exercise their rights consistently with their other obligations. Replying to the respondents' argument that the principle had no application in this case because it cannot give rise to new obligations, he said that no new obligations were in issue here. What was in issue was the lawfulness of measures that were taken to prevent the Convention ever being triggered. A state lacked good faith in the implementation of a treaty when it sought to avoid or to divert the obligation which is has accepted, or to do what it is not permitted to do directly.

    58.  This argument is attractive because it appears, if sound, to provide a neat and logical solution to the problem which faithful adherence to the language of the Convention presents. But it needs to be approached with caution. Lord Lester's description of good faith as an obligation is apt to mislead if taken out of context. Rules such as those on the observance of treaties described in articles 26 and 31 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964), which provide that every treaty in force must be performed by the parties to it in good faith and that a treaty shall be interpreted in good faith, may be described as obligations. They are specific rules by which the parties to the Convention have agreed to be bound. But to describe good faith generally as an obligation suggests that good faith has a life and energy of its own. It suggests that it can operate outside the obligations which a treaty creates, by enlarging their scope beyond that which the parties agreed to when they signed up to it. And even if one adopts Mr Goodwin-Gill's more accurate approach to it as a principle, care still needs to be taken lest the boundaries of its operation are exceeded and it is used to enlarge what parties have agreed to, rather than to ensure fair dealing in the performance of the agreement and the exercise of the rights and duties which have been created by it.

    59.  The limited way in which the principle operates can be seen in the field of private law, where its origins lie. The modern theory of contract is derived from the consensual contracts of Roman law which are said to have been governed by the principle of bona fides: Reinhard Zimmermann, The Law of Obligations (1992), p 674. There are differences between the legal systems as to how extensive and how powerful the penetration of the principle has been. They range from systems in the civilian tradition where as a guideline for contractual behaviour the principle is expressly recognised and acted upon, to those of the common law where a general obligation to conform to good faith is not recognised. In an appeal in a Scottish case, Smith v Bank of Scotland 1997 SC (HL) 111, 121B Lord Clyde referred to "the broad principle in the field of contract law of fair dealing in good faith." The preferred approach in England is to avoid any commitment to over-arching principle, in favour of piecemeal solutions in response to demonstrated problems of unfairness: Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, 439, per Bingham LJ. The same result is reached by other means: Ole Lando and Hugh Beale, Principles of European Contract Law, Parts I and II (2000), p 116, note 1; Ewan McKendrick, Contract Law (2003), pp 533-535.

    60.  But, as Hector MacQueen, "Delict, Contract, and the Bill of Rights: a Perspective from the United Kingdom" (2004) 121 South African LJ 359, 382, points out, good faith in Scottish contract law, as in South African law, is generally an underlying principle of an explanatory and legitimating rather than an active or creative nature: see also his chapter on good faith in the Scots law of contract in Good Faith in Contract and Property Law, ed ADM Forte (Harte Publishing, 1999). That was so in Roman law, which distinguished between obligations bona fidei and stricti iuris, and enabled the iudex in the former case to provide remedies on grounds of good faith in bonae fidei judicia: Buckland, A Text-Book of Roman Law, 2nd ed (1932), pp 678, 704. It was a distinction which applied properly to the remedy, rather than to the obligation. It was not a source of obligation in itself. That remains generally true today in the civilian systems, which recognise the principle.

    61.  Against this background we ought not to be surprised that much of the development of international law, representing what has been agreed among nations, has been informed by the same principle and that it uses it in practice in the same way. Article 2 of the United Nations Charter (1945) provides that the principles in pursuance of which the Organization and its Members shall act include the principle in para 2 of the article, which states that all members "shall fulfil in good faith the obligations assumed by them in accordance with the present Charter." The principle of good faith was explained by Sir Gerald Fitzmaurice, a former Judge of the International Court of Justice, "The Law and Procedure of the International Court of Justice: General Principles and Sources of Law" (1950) 27 BYIL 1, 12-13:

    "The essence of the doctrine is that although a State may have a strict right to act in a particular way, it must not exercise this right in such a manner as to constitute an abuse of it; it must exercise its rights in good faith and with a sense of responsibility; it must have bona fide reasons for what it does, and not act arbitrarily or capriciously."

    The preamble to the Vienna Convention notes that "the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised." In In re Nuclear Tests (Australia v France) [1974] ICJ Rep 253, 268, para 46, the International Court of Justice stated that good faith is one of the basic principles governing the creation and performance of legal obligations, whatever their source. It has been said that good faith presents itself as an absolutely necessary ingredient to the operation of the whole international legal order: Michel Virally, "Review Essay: Good Faith in Public International Law" (1983) 77 AJIL 130, 133.

    62.  But it is one thing for good faith to present itself as a principle of general application, as it is in these materials. It is another for it to be appealed to as a source of obligation in itself. It is here that caution is needed. In In re Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 69, 105, para 94 the International Court of Justice referred to its observations in the Nuclear Tests case about the basic principle, adding that good faith "is not in itself a source of obligation where none would otherwise exist." This proposition was reaffirmed in In re Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) [1998] ICJ Rep, 275, 297, para 39. In his review essay on La Bonne Foi en Droit International Public by Elisabeth Zoller (Paris, 1977) Michel Virally criticises her conclusion that, as good faith is not an autonomous source of legal rights and duties, no general obligation to behave in good faith exists in public international law (1983) 77 AJIL 130, 131. The view which he takes, which I for my part would accept, is that good faith really is a principle of international law, that all the actors in the international legal order are subjected to it and that they must endure its consequences, since good faith will serve to determine both the legal effects of their declarations and behaviour and the extent of their duties: p 133. But he also accepts it as true that, in practice, this general principle of law has only marginal value as an autonomous source of rights and duties and that, on this point, M Zoller's conclusions cannot be faulted. As he puts it, good faith is always related to specific behaviour or declarations. What it does is invest them with legal significance and legal effects: pp 133-134.

    63.  The question then is whether the appellants are seeking to do no more by appealing to this principle than insist that the rights and obligations which the 1951 Convention creates are exercised within the law, as Mr Goodwin-Gill put it, or whether they are seeking to enlarge what it provides so as to impose new obligations on the contracting states. In my opinion the answer to this question must be found in the language of the Convention, interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, as article 31 of the Vienna Convention requires. The argument that good faith requires the state to refrain from actions which are incompatible with the object and purpose of the treaty can only be pressed so far. Everything depends on what the treaty itself provides.

    64.  Nobody now seeks to argue that the operations which were carried out at Prague Airport were in breach of article 33, even on the most generous interpretation that could be given to it. What the Convention does is assure refugees of the rights and freedoms set out in Chapters I to V when they are in countries that are not their own. It does not require the state to abstain from controlling the movements of people outside its borders who wish to travel to it in order to claim asylum. It lacks any provisions designed to meet the additional burdens which would follow if a prohibition to that effect had been agreed to. The conclusion must be that steps which are taken to control the movements of such people who have not yet reached the state's frontier are not incompatible with the acceptance of the obligations which arise when refugees have arrived in its territory. To argue that such steps are incompatible with the principle of good faith as they defeat the object and purpose of the treaty is to argue for the enlargement of the obligations which are to be found in the Convention. For the reasons that I have given, I am not persuaded that this is the way in which the principle of good faith can operate.

The Sale case: refoulement

    65.  Lord Lester sought to build on the criticism of the decision of the US Supreme Court in Sale, Acting Comr, Immigration and Naturalisation Service v Haitian Centers Council Inc (1993) 509 US 155 in Report No 51/96 by the Inter-American Commission for Human Rights. The question in that case was whether an executive order directing the US Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they qualified as refugees violated article 243(h)(1) of the Immigration and Nationality Act 1952 and article 33 of the 1951 Convention. The Supreme Court held, Blackmun J dissenting, that the executive order was lawful. At p 187 Stevens J, speaking for the majority said:

    "Even if we believed that Executive Order 12807 violated the intent of some signatory states to protect all aliens, wherever they might be found, from being transported to potential oppressors, we must acknowledge that other signatory states carefully - and successfully - sought to avoid just that implication. The negotiating history, which suggests that the Convention's limited reach resulted from a deliberate bargain, is not dispositive, but it solidly supports our reluctance to interpret article 33 to impose obligations on the contracting parties that are broader than the text commands. We do not read that text to apply to aliens interdicted on the high seas."

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