European Roma Rights Centre and Six Others v. the Immigration Officer at Prague Airport and the Secretary of State for the Home Department

"There were three main considerations for the court in this case;

(1) Did the immigration procedure at Prague airport violate the 1951 Geneva Convention?

Mr Justice Burton:

48. ""It must, in my judgment, be right that a pre-clearance system such as here (with the
same extra-statutory concession for advance asylum requests) would be no more or no
less objectionable than a visa control system instituted for the same purpose. In those
circumstances the approach of the Divisional Court in Hoverspeed is directly
persuasive.

49. I am entirely clear as follows:

i) On the basis of the Convention, as it stands at present, there is no obligation on
a signatory state not to introduce or continue a system of immigration control,
whether by way of a requirement for visas or by the operation of a preclearance system such as is here being considered, to prevent those who are
not yet refugees and are still in their countries of origin from travelling to the
territory of the signatory state, or make it more difficult for them to do so.

ii) The UNHCR letter does not in fact purport to say the contrary. The UNHCR
has, it seems, reservations about the pre-clearance system, but it does not
explain either how in practice it is to be distinguished from a visa system, and
whether that system too is to be regarded as objectionable, and if so on what
basis, or how the position it takes in the Letter is consistent with its own
Handbook.

iii) If such an obligation is to be imposed, it must derive from a further
Convention, and not implied into the present one. No doubt any discussions in
that regard would need to consider the question of how far and how much
further there can be intervention within the internal affairs of countries in
order to protect those who are, or allege they are, being persecuted (and
whether such is to be best done by facilitating their departure from such a
country): and how far indeed the UNHCR, as was canvassed in the course of
the hearing, is then to be extending its responsibilities from refugees to
potential or internal refugees. But whatever may occur in the future, I am
satisfied that the ambit of the Convention at present does not so extend.""

(2) Did the immigration procedure constitute racial discrimination?

50. ""I turn to the Second Ground. Apart from s19(B), the Claimants draw specific attention
to s71 of the 1976 Act, which provides for an obligation on bodies such as the
Immigration Service to ?have due regard for the need to eliminate unlawful racial
discrimination?. As to the authorities, there is no dispute between the parties as to
what can be drawn from them. I have been referred to King v Great Britain-China
Centre [1992] ICR 516, Zafar v Glasgow City Council [1997] 1 WLR 1659,
Nagarajan v London Regional Transport [2000] AC 501 and Anya v University of
Oxford [2001] ICR 847. These emphasise or set out the following principles:

i) A complainant must prove his or her case on the balance of probabilities (King
at 528-9 approved in Zafar at 1664f).

ii) Claims brought under the race and sex discrimination legislation present
special problems of proof for complainants, since those who discriminate on
the grounds of race or gender do not in general advertise their prejudices:
indeed they may not even be aware of them (Zafar at 1664d).

iii) It is unusual to find direct evidence of racial discrimination. The outcome of
the case will therefore usually depend on what inferences it is proper to draw
from the facts (King at 528-529 approved in Zafar in 1664f-g).

iv) If a claimant can show that he has been less favourably treated than
comparable individuals from a different racial group, the court will look to the
alleged discriminator for an explanation. If no explanation is put forward or if
such explanation is inadequate or unsatisfactory it will be legitimate to infer
that the discrimination was on racial grounds (King at 528-9 approved in Zafar
at 1664h).

51. The Claimants draw attention to the danger of stereotyping, which does not need to be
deliberate, and to guidance to be obtained form Lord Nicholls in Nagarajan at 511H-
512D:

?All human beings have preconceptions, beliefs, attitudes and
prejudices on many subjects. It is part of our make-up.
Moreover we do not always recognise our own prejudices ?
Members of racial groups need protection form conduct driven
from unrecognised prejudices as much as from conscious and
deliberate.

58. Statistics. The Claimants rely upon the figures which I have set out in paragraph 27 above to support their case that there was differential treatment of Roma and nonRoma. As I have stated, they do not rely upon the figures to establish indirect discrimination ? i.e. an inevitable result of the operation of the process ? but as evidence of the existence of direct discrimination. Even allowing for the rough and ready figures, and for the fact that there is bound to have been faulty identification of Roma and non-Roma, as the classifications were all done only by observation, nevertheless 68 out of the 78 recorded as Czech-Roma were refused leave to enter, and only 14 out of 6170 of those recorded as Czech non-Roma during the relevant period.

74. The conclusion that is sought to be drawn is that the Prague operation was
discriminatory against Roma. I am wholly unpersuaded that such a proposition is
supported or furthered by the refusal of leave of entry to HM or by the TV
programme. Is the apparently differential treatment of the Roma in the ERRC test
enough, coupled with the statistics, to draw a conclusion that the operation was
targeted against Roma and was discriminatory? I am satisfied that this is not
established:

i) The ERRC test is in my judgment insufficient to draw any conclusion as to the
nature of the whole operation, not least given the fact that all three were acting
out a part.

ii) The evidence as to the individual Claimants cannot be ignored. I have already
concluded that I do not draw support for a case for discrimination from the
case of HM, and obviously the same goes for the three Claimants who simply
claimed asylum and do not allege discrimination. But the evidence in respect
of the other two Claimants must plainly be taken into account. RG and AKu
both now admit that they lied by concealing their intentions to claim asylum,
and no longer claim discrimination. The contemporaneous notes in respect of
RG show his interrogation, and the carefully developing thought processes of
the officer, whereby, notwithstanding the then assertion by RG of an intention
of a short term visit, by reference to questioning as to the wife?s cousin whom
he alleged that he was to visit, and his own financial circumstances, the officer
concluded that the expenditure of a trip ?was wholly out of proportion to the
likely resultant benefits for someone of modest economic background? and that
he ?could not be satisfied that the passenger and his family were genuinely
seeking entry as visitors for the period stated?. When Ms Rose talks of a ?bulls
eye? in relation to the ERRC test, it is in the context that none of the evidence
in relation to the Claimants, or the other non-claimant, supports the case of
discrimination.

iii) Mr Munro makes clear in his evidence that different officers have different
techniques and different methods. Not always are the same questions asked,
and certainly interrogations will vary in length, depending upon whether early
answers are satisfactory or not. I am not persuaded that the evidence of Mr
Munro is displaced; namely that the authorisation was neither in place nor in
mind, and that the operation in Prague was to be and was carried out nondiscriminatorily. Whatever might be the position if Ms Grundzova or indeed Ms Polakova were a claimant in respect of their own individual circumstances(whether in s57 proceedings, if permitted, or otherwise), I am wholly
unpersuaded that, even taken with anything that could be made of the
statistics, this limited evidence shows that the operation in Prague was carried
out discriminatorily, or a fortiori that the six Claimants are entitled to relief in
respect of discrimination, or in particular that any of the Claimants can
establish, as asserted in Lord Lester?s skeleton argument, that the practice of
pre-clearance is being operated in a way that discriminates against Roma on
racial grounds. In those circumstances I express no view either way as to the
desirability of the introduction, either in the United Kingdom or in Prague, of
any system of recording by immigration officials of ethnicity.

(3) Was there an unlawful fettering of discretion by the Immigration Officer regarding asylum claims?

75. ""The third ground relates to fettering of the discretion. As foreshadowed in paragraph
36 above this can be dealt with shortly. There is an extra-statutory concession, still
available to the Claimants, although (i) its ambit is restricted, as indeed is that which
is publicised in the Asylum Policy Instructions and (ii) it is particularly unsatisfactory
that it is not presently recorded in writing, and that should be speedily done. When
MZ, IB and AKu were refused leave to enter because they were intending to seek
asylum, was the Defendant?s discretion fettered? Ms Rose submits that by the refusal
of leave to enter, there was an implicit if not explicit representation that no route was
available to seek asylum outside the United Kingdom. This however does not take
account of what was in fact stated to them. MZ and AKu received a refusal in the
following terms: ?You have sought entry to the United Kingdom in order to claim
asylum but this is not a purpose covered by the Immigration Rules?: IB?s refusal
stated that ?you have sought entry to the UK in order to claim asylum but there is no
provision in the Immigration Rules to apply for asylum abroad?. These
representations were (subject to the Claimants? contentions in respect to the Fourth
Ground below) correct, and there is no room for any such implicit representation as
contended for by Ms Rose. In any event there was and is the extra-statutory
concession referred to, and even if it be, as it was, the end of the road so far as the
individual immigration officers were concerned, as Mr Munro has made clear in his
witness statement, the route was and remains open for consideration, through the
British Embassy or otherwise, by the Secretary of State of any case that can be put
forward within the extra-statutory concession. Indeed, although there is no evidence
that this was said to any of the relevant Claimants, the statement was made by the
Home Officer in its response of 24 October 2001 to the Claimants? letter before action
referred to in paragraph 30 above that ?our advice to those who wish to pursue the
matter was that they should make an application to the Embassy?."