Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
66. The Inter-American Commission said that it preferred the dissenting opinion of Blackmun J for the reasons given in the amicus brief filed for the Office of the UNHCR. He rejected the view of the majority at p 180 that the word "return" in article 33, reinforced by the word "refouler" in parenthesis, had a narrower meaning than its common meaning. At pp191-193 he said that ordinary meaning of the word "refouler" (which he took to mean to repulse, drive back or repel) strongly reinforced the straightforward interpretation of the duty of non-return, that the text of article 33 was clear and that, whether the operative term was "return" or "refouler", it prohibited the Government's actions. In the Court of Appeal  QB 811, para 34 Simon Brown J said:
67. Blackmun J's dissenting opinion was invoked by Lord Lester in support of his argument that the actions of the immigration officers at Prague Airport were contrary to the principle of non-refoulement as that principle was now recognised in customary international law. The executive order required the US Coast Guard to drive back or repel the Haitian asylum seekers, forcing them to return to their country of origin. That, he said, was the effect of the pre-clearance scheme, which was another example of an act in breach of the principle. He recognised, of course, that those who were dealt with at Prague Airport were in a different position from those who were turned back in the Haitians' case, who were undoubtedly refugees as defined by article 1A of the Convention when they were intercepted on the high seas as, assuming the other conditions were satisfied, they were outside the country of their nationality. But he submitted that the application of the refoulement principle by Blackmun J to the Haitians' case was directly comparable.
68. I do not, with respect, think that the Sale case was wrongly decided. The issue in that case was not as to what was or was not fair. The majority recognised the moral weight of the argument that a nation should be prevented from repatriating refugees to their potential oppressors whether or not the refugees were within that nation's borders: p 187. But in their opinion both the text and the negotiating history of article 33 affirmatively indicated that it was not intended to have extraterritorial effect. Judicial support for this view is found in the opinion of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225,273-274 and in the other authorities which Lord Bingham has referred to.
69. As for the word "refouler", the dictionaries show both that there are many possible translations of it and that it is not an exact synonym for the English word "return" to which it has been attached in parenthesis by article 33. Le Trésor de la Langue Française informatisé, in the version dated 10 December 2002, gives a variety of meanings of the word, depending on what one is talking about. Its use in the medical and military contexts is referred to, as also is a description of the movement achieved by shunting a train. Its meaning in international law, in the context of "refoulement des étrangers", is said to be "acte par lequel la police des frontières s'oppose à l'entrée sur le territoire d'un État d'un ressortissant étranger qui cherche à y pénétrer." This definition indicates an acceptance in contemporary usage of the wider meaning that Lord Lester was contending for. But the crucial question for present purposes is what the phrase "expel or return [refouler]" was understood to mean in 1951 when it was adopted by the Convention.
70. On this point I agree with the majority in the Sale case. The materials quoted in footnote 40 to their opinion provide ample support for the proposition that the word "return" in article 33 is not an exact synonym for the word "refouler." It refers to a refugee who is within the territory but is not yet resident there - to a person who has crossed the border and is on the threshold of initial entry, as it was put in Shaughnessy v United States, ex rel Mezei (1953) 345 US 206, 212. Grahl-Madsen, The Status of Refugees in International Law (1972), p 94 states that the prohibition of non-refoulement may only be invoked in respect of persons who are already present in the territory of the contracting state, and that article 33 does not oblige it to admit any person who has not set foot there.
71. The majority in Sale concluded their discussion of the meaning to be given to the text of the Convention with these words, at p 183:
I see no reason to disagree with this assessment.BARONESS HALE OF RICHMOND
72. On the asylum issue, I am in full and respectful agreement with the reasoning and conclusions of my noble and learned friend, Lord Bingham of Cornhill. A quite separate issue is whether the operation at Prague Airport was carried out in an unlawfully discriminatory manner, in that would-be travellers of Roma origin were treated less favourably than non-Roma were. In particular, it is alleged that they were subjected to longer and more intrusive questioning, they were required to provide proof of matters which were taken on trust from non-Roma, and far more of them were refused leave to enter than were non-Roma. The appellants seek a declaration to that effect.
73. Since 1968, it has been unlawful for providers of employment, education, housing, goods and other services to discriminate against individuals on racial grounds. The current law is contained in the Race Relations Act 1976, which in most respects is parallel to the Sex Discrimination Act 1975. The principles are well known and simple enough to state although they may be difficult to apply in practice. The underlying concept in both race and sex discrimination laws is that individuals of each sex and all races are entitled to be treated equally. Thus it is just as discriminatory to treat men less favourably than women as it is to treat women less favourably than men; and it is just as discriminatory to treat whites less favourably than blacks as it is to treat blacks less favourably than whites. The ingredients of unlawful discrimination are (i) a difference in treatment between one person and another person (real or hypothetical) from a different sex or racial group; (ii) that the treatment is less favourable to one; (iii) that their relevant circumstances are the same or not materially different; and (iv) that the difference in treatment is on sex or racial grounds. However, because people rarely advertise their prejudices and may not even be aware of them, discrimination has normally to be proved by inference rather than direct evidence. Once treatment less favourable than that of a comparable person (ingredients (i), (ii) and (iii)) is shown, the court will look to the alleged discriminator for an explanation. The explanation must, of course, be unrelated to the race or sex of the complainant. If there is no, or no satisfactory explanation, it is legitimate to infer that the less favourable treatment was on racial grounds: see Glasgow City Council v Zafar  1 WLR 1659, approving King v Great Britain-China Centre  ICR 516. If the difference is on racial grounds, the reasons or motive behind it are irrelevant: see, for example, Nagarajan v London Regional Transport  1 AC 501.
74. If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual, not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do indeed have such characteristics, a process sometimes referred to as stereotyping. Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify.
75. The complaint in this case is of direct discrimination against the Roma. Indirect discrimination arises where an employer or supplier treats everyone in the same way, but he applies to them all a requirement or condition which members of one sex or racial group are much less likely to be able to meet than members of another: for example, a test of heavy lifting which men would be much more likely to pass than women. This is only unlawful if the requirement is one which cannot be justified independently of the sex or race of those involved; in the example given, this would depend upon whether the job did or did not require heavy lifting. But it is the requirement or condition that may be justified, not the discrimination. This sort of justification should not be confused with the possibility that there may be an objective justification for discriminatory treatment which would otherwise fall foul of article 14 of the European Convention on Human Rights.
76. Discrimination law has always applied to public authority providers of employment, education and housing, and other services, as long as these services are of a similar kind to those which may be supplied by private persons. But a majority of this House held, in R v Entry Clearance Officer, Bombay, Ex p Amin  2 AC 818, that it did not apply to acts done on behalf of the Crown which were of an entirely different kind from any act that would ever be done by a private person, in that case to the application of immigration controls. This is still the case for sex discrimination, but the race discrimination law was changed in response to the Macpherson Report into the Stephen Lawrence case. It is now unlawful for a public authority to discriminate on racial grounds in carrying out any of its functions. There are, however, a few exceptions and qualifications, one of which is relevant to this case.
77. The amendments came into force on 2 April 2001. The relevant provisions of the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000, at the material time (they have been further amended since) were as follows:
"1 Racial discrimination
3 Meaning of 'racial grounds', 'racial group' etc
(1) In this Act, unless the context otherwise requires-
19B Discrimination by public authorities
(3) In subsection (2), 'relevant authorisation' means a requirement imposed or express authorisation given-
(4) For the purposes of subsection (1) 'immigration and nationality functions' means functions exercisable by virtue of any of the enactments mentioned in subsection (5).
(5) Those enactments are-
78. The effect, therefore, is to exempt an immigration officer from the requirement not to discriminate if he was acting under a relevant authorisation, that is a requirement or express authorisation given by a Minister of the Crown acting personally (or by the law itself, but that does not arise here). Shortly before the Prague operation began on 18 July 2001, the Minister had made the Race Relations (Immigration and Asylum) (No 2) Authorisation 2001, which came into force in April 2001, at the same time as the 2000 Act amendments. The operative parts are as follows:
79. Among the ethnic or national origins listed in the Schedule were Roma.
80. When these proceedings were begun on 18 October 2001, the claimants assumed that the immigration officers in Prague were operating under this Authorisation. The claim form therefore attacked the validity of the Authorisation. However, it is and has always been the respondents' case that the Authorisation did not apply to the Prague operation. Their case is not that the officers were discriminating lawfully but that they were not discriminating at all. Burton J accepted that they were not. Some individual differences in treatment were explicable, not by ethnic difference, but by more suspicious behaviour. There were too few instances of inexplicable differences in treatment to justify a general conclusion. The difference between the proportion of Roma and non-Roma refused entry was explicable by reference to the proportions of Roma and non-Roma who were likely to seek asylum.
81. The Court of Appeal accepted that the judge was entitled to find that the immigration officers tried to give both Roma and non-Roma a fair and equal opportunity to satisfy them that they were coming to the United Kingdom for a permitted purpose and not to claim asylum once here. But they considered it 'wholly inevitable' that, being aware that Roma have a much greater incentive to claim asylum and that the vast majority, if not all, of those seeking asylum from the Czech Republic are Roma, immigration officers will treat their answers with greater scepticism, will be less easily persuaded that they are coming for a permitted purpose, and that 'generally, therefore, Roma are questioned for longer and more intensively than non-Roma and are more likely to be refused leave to enter than non-Roma' (Simon Brown LJ, paras 66 - 67). Laws LJ referred to the last of these propositions as 'plainly true on the facts of this case' (para 102). Simon Brown LJ, with whom Mantell LJ agreed, held that nevertheless this was not less favourable treatment, or if it was, it was not on racial grounds. The Roma were not being treated differently qua Roma but qua potential asylum-seekers. Laws LJ considered it 'inescapable' that this was less favourable treatment (para 102). He also concluded (para 109) that this was discrimination:
82. On the factual premises adopted by the Court of Appeal, this conclusion must be correct as a matter of law. The Roma were being treated more sceptically than the non-Roma. There was a good reason for this. How did the immigration officers know to treat them more sceptically? Because they were Roma. That is acting on racial grounds. If a person acts on racial grounds, the reason why he does so is irrelevant: see Lord Nicholls of Birkenhead in Nagarajan at p 511. The law reports are full of examples of obviously discriminatory treatment which was in no way motivated by racism or sexism and often brought about by pressures beyond the discriminators' control: the council which sacked a black road sweeper to whom the union objected in order to avoid industrial action (R v Commission for Racial Equality, Ex p Westminster City Council)  ICR 827); the council which for historical reasons provided fewer selective school places for girls than for boys (R v Birmingham City Council, Ex p Equal Opportunities Commission  AC 1155). But it goes further than this. The person may be acting on belief or assumptions about members of the sex or racial group involved which are often true and which if true would provide a good reason for the less favourable treatment in question. But 'what may be true of a group may not be true of a significant number of individuals within that group' (see Hartmann J in Equal Opportunities Commission v Director of Education  2 HKLRD 690, para 86, High Court of Hong Kong). The object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group. As Laws LJ observed, at para 108:
83. As we have seen, the legislation draws a clear distinction between direct and indirect discrimination and makes no reference at all to justification in relation to direct discrimination. Nor, strictly, does it allow indirect discrimination to be justified. It accepts that a requirement or condition may be justified independently of its discriminatory effect.
84. The question for us, therefore, is whether the factual premise is made out. The appellants mount essentially the same argument before us as they did before both Burton J and the Court of Appeal. But, greatly to their credit, the respondents have made a further search and produced further evidence which casts a rather different light upon the case than was cast by their evidence in the courts below.
85. The appellants' case is, first, that the Prague operation carried with it a very high risk of racial discrimination. Its avowed object was to prevent people travelling from the Czech Republic to this country in order to seek asylum or otherwise overstay the limits of their leave to be here. The vast majority of those who have done this in the past are Roma. Many Roma have good reason to want to leave. For some, this may amount to persecution within the meaning of the Refugee Convention. The operation was targeting all potential asylum seekers, with or without a good claim. The object was not only to prevent the would-be travellers at the airport. It was also to deter others from even getting that far. Given the high degree of congruence between the object of the exercise and a particular ethnic group, which was recognised in public statements by the Czech Prime Minister and his deputy, the risk that the operation would be carried out in a racially discriminatory manner was very high.
86. That risk was exacerbated by the very existence of the Authorisation. This sanctioned discriminatory treatment of the very ethnic group to which the vast majority of the people against whom the Prague operation was targeted belonged. The evidence is that the immigration authorities responsible for the operation did not intend the officers in Prague to act on the Authorisation: its main object was to speed up processing at ports of entry to the United Kingdom when particular problems arose. So there was no instruction to the Prague officers to implement it. Nor do the records of individual cases give any indication that the officers thought that they were operating it. But the Authorisation was annexed to the Immigration Directorate's Instructions, chapter 1, section 11 of which is headed 'Race Relations (General)'. This seeks to explain the effect of this Authorisation, dealing with discrimination on grounds of ethnic or national origin, and an earlier one, which authorised discrimination on grounds of nationality if there was statistical or intelligence information of breach of immigration laws by persons of that nationality. Having set out the various ways in which officers might discriminate under either Authorisation, it contains the following passage about the later one with which we are concerned:
87. This is under the heading of 'Examination of passengers', which relates to people arriving at UK ports of entry; but under the heading 'Persons wishing to travel to the UK' the following passage appears:
88. Also available now are the slides and accompanying briefing for the training which all staff received on the 2000 Act and the Ministerial Authorisations under it. These stress the importance of the Authorisations to the work of the Department, point out that discrimination against the listed groups is permissible without statistical or intelligence information, and advise of the need to be familiar with the list, to be able to identify passengers belonging to those groups, and to use their experience, knowledge of groups and local intelligence to assist in identification. They do point out that 'discrimination is likely to be exercised primarily in relation to specific port exercises', but do not suggest that these are the only circumstances in which it can be done. The briefing stresses that 'personnel need to be alert to the ways in which the integrity of the control function might be detrimentally affected if staff chose to disengage by not subjecting certain people/groups to extra scrutiny where appropriate.'