(back to preceding text)

    89.  The combination of the objective of the whole Prague operation and a very recent ministerial authorisation of discrimination against Roma was, it is suggested, to create such a high risk that the Prague officers would consciously or unconsciously treat Roma less favourably than others that very specific instructions were needed to counteract this. Officers should have been told that the Directorate did not regard the operation as one which was covered by the Authorisation. They should therefore have been given careful instructions in how to treat all would-be passengers in the same way, only subjecting them to more intrusive questioning if there was specific reason to suspect their intentions from the answers they had given to standard questions which were put to everyone.

    90.  It is worth remembering that good equal opportunities practice may not come naturally. Many will think it contrary to common sense to approach all applicants with an equally open mind, irrespective of the very good reasons there may be to suspect some of them more than others. But that is what is required by a law which tries to ensure that individuals are not disadvantaged by the general characteristics of the group to which they belong. In 2001, when the operation with which we are concerned began, the race relations legislation had only just been extended to cover the activities of the immigration service. It would scarcely be surprising if officers acting under considerable pressure of time found it difficult to conform in all respects to procedures and expectations which employers have been struggling to get right for more than quarter of a century.

    91.  It is against this background that such evidence as there is of what happened on the ground at Prague Airport needs to be assessed. The officers did not make any record of the ethnic origin of the people they interviewed. The respondents cannot therefore provide us with figures of how many from each group were interviewed, for how long, and with what result. This, they suggest, makes it clear that the officers were not relying on the Authorisation: if they had been, they would only have had to record their view of the passenger's ethnicity. If correct, that would have been enough to justify refusal of leave. But what it also shows is that no formal steps were being taken to gather the information which might have helped ensure that this high-risk operation was not being conducted in a discriminatory manner. It also means that the only information available is that supplied by the claimants, and in particular the ERRC which was attempting to monitor the operation. The respondents can cast doubt on the reliability of this, but they cannot contradict it or provide more reliable information themselves. Indeed the figures gathered were used by both sides before Burton J as a 'useful working basis' (Judgment, para 27).

    92.  Mr Vasil, a Czech Roma working for the ERRC, observed most flights leaving for the UK on 11 days in January, 13 days in February, 14 days in March and 13 days in April 2002. He was able to identify the Roma travellers by their physical appearance, manner of dress and other details which were recognisable to him as a Roma himself. His observations showed that 68 out of 78 Roma were turned away whereas only 14 out of 6170 non-Roma were rejected. Thus any individual Roma was 400 times more likely to be rejected than any individual non-Roma. The great majority of Roma were rejected. And only a tiny minority of non-Roma were rejected. It is, of course, entirely unsurprising that a far higher proportion of Roma were turned away. But if the officers began their work with a genuinely open mind, it is more surprising that so many of the Roma were refused. If all or almost all asylum seekers are Roma, it does not follow that all or almost all Roma are asylum seekers. It is even more surprising that so few of the non-Roma were refused. One might have expected that there would be more among them whose reasons for wanting to travel to the UK were also worthy of suspicion. The apparent ease with which non-Roma were accepted is quite consistent with the emphasis given in the Instructions and training materials to the sensible targeting of resources at busy times. The respondents have not put forward any positive explanation for the discrepancy.

    93.  Mr Vasil also observed that questioning of Roma travellers went on longer than that of non-Roma and that 80% of Roma were taken back to a secondary interview area compared with less than 1% of non-Roma. The observations of Ms Muhic-Dizdarevic, who was monitoring the operation on behalf of the Czech Helsinki Committee, were to much the same effect. She also points out that 'It was very obvious from their appearance which travellers were Roma and which were not. Firstly, at least 80% of the Roma could be readily identified by their darker skin and hair . . .' Aspects of her evidence have been attacked but not this.

    94.  These general observations are borne out by the experience of the individuals whose stories were before the court. The ERRC conducted an experiment in which three people tried to travel to the UK for a short visit. Two were young women with similar incomes, intentions and amounts of money with them, one non-Roma, Ms Dedikova, and one Roma, Ms Grundzova; the third, Ms Polakova, was a mature professional married Roma woman working in the media. Ms Dedikova was allowed through after only five minutes' questioning, none of which she thought intrusive or irrelevant. Her story that she was going to visit a woman friend who was also a student was accepted without further probing. Ms Grundzova was refused leave after longer questioning which she found intrusive and requests for confirmation of matters which had been taken on trust from Ms Dedikova. Ms Polakova was questioned for what seemed to her like half an hour, was then told to wait in a separate room, and was eventually given leave to enter. She felt that the interview process was very different from that undergone by the non-Roma passengers travelling at the same time as her and that the only reason she was allowed to travel was that she had told them that she was a journalist interested in the rights of the Roma people. All three of these people were to some extent acting a part, in that their trips had been provoked and financed by the ERRC, but they were genuinely intending to pay a short visit to a friend or relatives living here. Czech television also conducted a similar experiment with a Roma man and a non-Roma woman wishing to pay a short visit to the UK. The non-Roma was given leave while the Roma was refused after a much longer interview. Unlike the ERRC test, we have a transcript from which one can see what it was about the Roma's answers which might have made the official suspicious even if he had not been a Roma. But the question still remains whether a non-Roma who gave similar answers would have been treated the same. The tiny numbers of non-Roma refused may suggest otherwise.

    95.  Then there are the claimants in the case. Three of them made no secret of their intention to seek asylum on arrival in the UK. They do not therefore complain of discrimination, because their less favourable treatment was on grounds other than their ethnic origin. Two of the claimants also intended to claim asylum but pretended that they did not. It is difficult therefore for them to complain of more intensive questioning which revealed their true intentions. The last claimant, HM, was refused entry in circumstances which again invite the question whether a non-Roma in similar circumstances would have been refused. She was of obviously Roma appearance, aged 61 at the time, living with her husband and children, but travelling alone. Her husband was recovering from a heart attack and she was awaiting spinal surgery. Both were unemployed and living on social security because of ill health, which might not be thought surprising given their age. She planned to visit her grandson-in-law in England, and was carrying a sponsorship letter from him, together with a return ticket and £100 cash. These facts do not suggest someone who is planning to abandon her husband and five children and move to England. On the other hand, the file note records that the grandson-in-law states that he has been awarded refugee status but provides no evidence of this, is currently living on benefits though seeking employment, and makes no mention of the grand-daughter to whom he was presumably married.

    96.  These are judicial review proceedings, not a discrimination claim in the county court. No oral evidence has been heard or findings of fact in the individual cases made. The question is not whether HM was indeed intending to claim asylum on arrival, although it seems somewhat unlikely in the circumstances. The question is whether a non-Roma grandmother would have been treated in the same way. Again, the ERRC figures and the outcome of their test are some evidence that she would not.

    97.  It is not the object of these proceedings to make a finding of discrimination in any individual case. The object, as Burton J pointed out (Judgment, para 53(iv)), is to establish a case that the Prague operation was carried out in a discriminatory fashion. All the evidence before us, other than that of the intentions of those in charge of the operation, which intentions were not conveyed to the officers on the ground, supports the inference that Roma were, simply because they were Roma, routinely treated with more suspicion and subjected to more intensive and intrusive questioning than non-Roma. There is nothing surprising about this. Indeed, the Court of Appeal considered it 'wholly inevitable'. This may be going too far. But setting up an operation like this, prompted by an influx of asylum seekers who are overwhelmingly from one comparatively easily identifiable racial or ethnic group, requires enormous care if it is to be done without discrimination. That did not happen. The inevitable conclusion is that the operation was inherently and systemically discriminatory and unlawful.

    98.  In this respect it was not only unlawful in domestic law but also contrary to our obligations under customary international law and under international treaties to which the United Kingdom is a party. It is commonplace in international human rights instruments to declare that everyone is entitled to the rights and freedoms they set forth without distinction of any kind such as race, colour, sex and the like: see, for example, the Universal Declaration of Human Rights 1948, article 2; the International Covenant on Civil and Political Rights 1966, article 2; the European Convention on Human Rights, article 14; and the Refugee Convention itself in article 3 provides:

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

    99.  But the ICCPR goes further, in article 26:

"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."

    100.  The International Convention on the Elimination of all Forms of Racial Discrimination 1966 provides in article 2:

"(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."

    101.  Racial discrimination is defined in article 1 in terms of distinctions which have the 'purpose or effect of nullifying or impairing the recognition, or enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.' Article 1(2) states that the Convention does not apply to distinctions, exclusions, restrictions or preference made between citizens and non-citizens, but this certainly does not mean that States Parties can discriminate between non-citizens on racial grounds.

    102.  It was the existence of these and other instruments, some only in draft at the time, together with the principle of equality enshrined in the Charter of the United Nations and emphasised in numerous resolutions of the General Assembly, which led Judge Tanaka and the dissenting minority of the International Court of Justice in the South West Africa Cases (Ethiopia v South Africa) (Liberia v South Africa) (second phase) [1966] ICJ Rep 6, 293 to conclude that

'we consider that the norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law . . .'

    103.  The General Assembly has 'urged all States to review and where necessary revise their immigration laws, policies and practices so that they are free of racial discrimination and compatible with their obligations under international human rights instruments' (UNGA Resolution 57/195, para I.6, adopted 18 December 2002; see also UNGA Resolution 58/160 adopted on 22 December 2003). The UN Committee on the Elimination of Racial Discrimination has expressed its concern at the application of section 19D, which it considers 'incompatible with the very principle of non-discrimination' (UN doc CERD/C/63/CO/11, para 16, 10 December 2003). A scheme which is inherently discriminatory in practice is just as incompatible as is a law authorising discrimination.

    104.  As to remedy, the conclusion is that discrimination is inherent in the operation of the scheme itself. It is therefore more appropriate to make a general declaration, rather than the more specific one sought by appellants. The refusal of leave to enter to far more Roma than non-Roma is only objectionable if some Roma were wrongly refused or some non-Roma were wrongly given leave. That we do not know. But the differential is further evidence of a general difference in approach between the two groups, which may have had other aspects than those to which our attention has specifically been drawn. Hence the following declaration meets the case:

"United Kingdom Immigration Officers operating under the authority of the Home Secretary at Prague Airport discriminated against Roma who were seeking to travel from that airport to the United Kingdom by treating them less favourably on racial grounds than they treated others who were seeking to travel from that airport to the United Kingdom, contrary to section 1(1)(a) of the Race Relations Act 1976."

    105.  I would therefore allow the appeal on this ground and make the above declaration.

LORD CARSWELL

My Lords,

    106.  I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Bingham of Cornhill and Baroness Hale of Richmond, and I too would allow the appeal and make a declaration in the terms proposed by Lady Hale.

    107.  Two main issues fall to be decided on the arguments presented to the House (a) the asylum issue, whether the procedures applied to the appellants were incompatible with the obligations of the United Kingdom under the Geneva Convention and Protocol relating to the Status of Refugees and under customary international law (b) the discrimination issue, whether those procedures involved unjustifiable discrimination on racial grounds.

    108.  On the asylum issue, I agree entirely with the reasons and conclusions contained in the opinion of Lord Bingham of Cornhill.

    109.  On the discrimination issue, it is claimed that persons of Roma origin wishing to travel from Prague to the United Kingdom were subjected to longer and more intrusive questioning than persons not of that origin, that they were required to provide proof of matters which other persons were not required to prove and that persons of Roma origin were refused leave to enter the United Kingdom in circumstances in which other persons would have been given it.

    110.  The last allegation has not on the facts established been borne out, nor, as Burton J pointed out in para 53 of his judgment, was it the immediate object of the proceedings to prove such an allegation in any individual case. It is important therefore to appreciate that the complaint is one of a discriminatory system, not of discrimination which prevented any specified individual from travelling to the United Kingdom. The evidence in relation to the individual claimants is, as the judge said, adduced in order to establish or support a case that the Prague operation has been carried out in a discriminatory fashion. It is also important to appreciate that on the judge's findings the evidence does not go so far as to prove that that operation did in fact have the result that Romani passengers were as a class refused leave to enter the UK where others would not have been. Naturally one cannot fail to suspect that that was the case and to scrutinise the facts with some care, in the light of the "massive differential" (Burton J at para 59) between the numbers and proportion of Romani applicants refused leave by comparison with non-Romani persons. In para 74 of his judgment Burton J set out in detail his reasons for concluding that it had not been proved that such a discriminatory result occurred. In para 65 of his judgment in the Court of Appeal Simon Brown LJ (with whom the other members of the court agreed on this issue) upheld his conclusions. Notwithstanding one's natural concerns, I have not been persuaded by anything in the admirable arguments presented to us that those conclusions were incorrect.

    111.  I do, however, find myself in agreement with Laws LJ concerning the stereotyping of Roma in the manner in which the immigration officers at Prague Airport examined the would-be passengers. It was accepted by the members of the Court of Appeal, who themselves raised the point and requested argument upon it, that immigration officers brought a greater degree of scepticism to bear on applications from Roma for leave to enter than on applications from other persons, and that they consequently tended to question them for longer periods and more intensively. The correctness of this proposition was not disputed before your Lordships.

    112.  That may well be understandable in light of the experience of the officers, that a large preponderance of asylum claims came from Roma and that there was a propensity among those people to make false claims. As Lady Hale has mentioned in para 90 of her opinion, many people would regard it as nothing more than an application of ordinary common sense to treat Romani applicants in that way, given the officers' regular experience of dealing with them (and assuming in the officers' favour that they were doing no more than attempting conscientiously to ascertain which applications were genuine).

    113.  But it is at that very point that discrimination law as it has been developed requires particular care in the approach to a class of persons whose members are strongly suspected of advancing large numbers of false claims. As Hartmann J said in the High Court of Hong Kong in a regularly quoted sentence in Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 at para 86, "what may be true of a group may not be true of a significant number of individuals within that group". It is not legitimate to apply a stereotype and commence with the assumption that applicants from Roma may be making false claims and that for that reason their claims require more intensive investigation. An officer who does so has, as Laws LJ, in my opinion correctly, said at para 109 of his judgment, "applied a stereotype; though one which may very likely be true". The point is that it may not be true, and it is in law discriminatory to subject all applicants from Roma to longer and more intensive questioning because so many of them have been known in the past to merit such treatment. What the officers must do is treat all applicants, whatever their racial background, alike in the method of investigation which they carry out until in any individual case sufficient reason appears to prolong or intensify the examination.

    114.  I accordingly cannot agree with the reasoning of the majority of the Court of Appeal on this issue and prefer that of Laws LJ. I would agree with the terms of the declaration proposed by Lady Hale, but I would emphasise that it is on the limited basis that it is directed to the discriminatory treatment of Roma in the length and method of interrogation.