European Roma Rights Centre and Others v. the Immigration Officer at Prague Airport and the Secretary of State for the Home Department
- Author: Court of Appeal (Civil Division)
- Document source:
-
Date:
20 May 2003
European Roma Rights Centre and Others v. the Immigration Officer at Prague Airport and the Secretary of State for the Home Department
In this section
The claimants, six Czech Roma and an NGO European Roma Rights Centre, challenged the pre-entry immigration procedure at Prague airport. The six appellants had been refused entry due to UK Immigration Rules which operated extra-territorially. The appellants applied for judicial review arguing that such extra-territorial laws violated Article 33 of the Geneva Convention relating to the Status of Refugees 1951, which provided "No contracting state shall expel or return (refouler) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." The appellants had also contended that they had been treated less favourably than other UK asylum applicants due to their Romanian race.
The appellants are respectively the European Roma Rights Centre ("ERRC"), an NGO based in Budapest devoted to the protection of the rights of Romani people in Europe and six Czech Roma who were refused leave to enter the UK by immigration officers at Prague airport. Section 3(1)(a) of the Immigration Act 1971 provides that a person may not enter the UK "unless given leave to do so in accordance with the provisions of, or made under?the Immigration Act. " Section 4(1) provides that the power to give or refuse leave to enter is generally exercised by immigration officers. A legislative scheme in 1999 authorised the UK Home Secretary to enable Immigration rules to be operated extra-territorially rather than simply at UK ports. The appellants applied for judicial review arguing that such extra-territorial laws violated Article 33 of the Geneva Convention relating to the Status of Refugees 1951, which provided "No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." There was also the question whether the claimants had potentially been treated unfavourably due to their Romanian race by the Immigration authorities.
The key considerations for the court in this case was whether the Prague immigration procedure was in violation of the UK's international obligations under the Geneva Convention 1951 and whether the United Kingdom is permitted to extra-territorially prevent asylum seekers from leaving their own state.
LJ Brown:
42. "As Mr Howell has pointed out, only two provisions in the Convention apply to admissions and they are of the most limited scope. Article 11 applies to refugee seaman and requires no more than that a state under whose flag they are serving "shall give sympathetic consideration to ? their temporary admission in its territory". Article 28(1) requires states to issue ?to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory? and by paragraph 13 of the Schedule to the Convention the state undertakes that the holder of such a document ?shall be readmitted to its territory at any time during the period of its validity?. The very limitations upon these obligations serve to illustrate the distinction between, on the one hand, the obligations owed to those already within a state?s territory and, on the other, the lack of any obligation to admit those (perhaps simply across a land frontier) aspiring to become refugees.
43. It is, indeed, accepted by the appellants that a state is under no obligation to admit refugees. How then can there be an obligation not to impede but rather to admit someone so that he can become a refugee? For my part I remain of the view I expressed in Hoverspeed, namely that not merely is the Home Secretary under no obligation to facilitate the arrival of asylum seekers but rather he is entitled to take steps to prevent their arrival. I referred there to the ?tension [which] undoubtedly arises from our obligation to asylum seekers under the 1951 Convention on the one hand and our entitlement to impede their arrival on the other?. In the later case of R -v- Uxbridge Magistrates? Court ex parte Adimi [2001] QB 667, in the context of article 31, I noted that states strive increasingly to prevent the arrival of asylum seekers and observed that ?the combined effect of visa requirements and carriers? liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents?. None of this, I readily acknowledge, is entirely satisfactory. In an ideal world there would no doubt be provision for states to facilitate the escape of persecuted minorities by allowing entry to their own country. I am satisfied, however, that on no view of the Convention is this within its scope. The distinction between on the one hand a state preventing an aspiring asylum seeker from gaining access from his own country to its territory and on the other hand returning such a person to his own country (the distinction, in short, between this case and Sale) can be made to seem a narrow and unsatisfactory one. In my judgment, however, it is a crucial distinction to make and it is supported both by the text of the Convention and by the authorities dictating its scope.
48. Let me at this stage address the distinctions which the appellants seek to draw between visa regimes and the Prague scheme, distinctions which they suggest make the latter the more objectionable of the two types of control. Lord Lester criticises in particular the fact that the decision to refuse leave is made at the airport, after the intending asylum seeker has already committed himself to purchasing a ticket and to effecting an escape, and in such a way as to increase the risk of persecution. He contrasts this with the more discreet process involved in making an advance visa application in writing. He complains too that the pre-clearance scheme operates only on a sporadic basis which is accordingly arbitrary and unfair as between asylum seekers. Mr Goodwin-Gill too submits that there is a distinction to be made between ?the active interdiction or interception of persons seeking refuge from persecution? on the one hand and ?passive regimes, such as visa and carrier sanctions? on the other.
49. In my judgment there is nothing in these criticisms and indeed the Prague scheme seems to me to constitute if anything a less, rather than more, serious problem for would-be asylum seekers than visa control. The fact that it operates only sporadically means that sometimes the intending asylum seeker will be free to travel. In any event it applies only to travel to the UK: the intending asylum seeker can travel anywhere else he pleases and, indeed, if he does so, there is nothing in the scheme which precludes his then travelling on to the UK. There is no stamping of his travel document or any permanent record of his having been refused leave. Rather the immigration officer when refusing leave merely issues a document recording such refusal which he faxes to the airline. Although in practice the airline will be unwilling to carry the passenger and will immediately refund the ticket price, it is not in fact prohibited from carrying the passenger to the United Kingdom. Nor indeed would it incur carrier?s liability (as it would if a visa regime were imposed) although it might be liable to some lesser financial sanction pursuant to paragraphs 8 or 20 of Schedule 2 to the 1971 Act. Whilst in certain countries the operation of the scheme might perhaps expose a refused asylum seeker to the risk of further persecution for having sought to escape, that certainly cannot be said of the Prague operation: persecuted Czech Roma ordinarily suffer at the hands of nonstate agents; they are not subject to persecution by the state itself.
50. In short, it seems to me impossible to draw any principled distinction in international law between the legality of the Prague operation and visa controls. Both Lord Lester and Mr Goodwin-Gill, I should note at this point, take exception also to visa controls, at any rate insofar as they are designed to impede the escape of prospective asylum seekers. In this regard Mr Goodwin-Gill puts before us a letter from UNHCR to the Home Secretary dated 13 December 2002 objecting to the then proposed visa restrictions on Zimbabwean nationals. In my judgment, however, these objections do not sound in international law. Rather one must hope that when in truth acute humanitarian concerns arise states will respond beyond the strict call of their international obligations. This, I believe, is the only answer the court is entitled to give when Lord Lester conjures up the spectre of a fresh Holocaust. Visa controls are, in short, clearly not outlawed under the Convention or under international law generally. EU law, indeed, not merely sanctions them but requires for certain countries both visa controls and carriers? liability with stipulated minimum penalties attaching - as to which see International Transport Roth GmbH -v- Home Secretary [2002] 3 WLR 344, 366."
Secondly, whether the Prague airport immigration procedure contravenes s19(B) of the Race Relations Act 1976 and therefore constitutes direct racial discrimination against Czech Roma who are seeking to come to the UK not as asylum seekers but for other purposes.
LJ Brown:
57. "Pursuant to a recommendation in the Macpherson Report, the 1976 Act was amended so that its provisions applied (as previously they had not) to public authorities, albeit subject to certain exceptions. Section 1 of the Race Relations (Amendment) Act 2000 introduced into the 1976 Act further provisions as follows: ?19B(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.? ?19D(1) S19(B) does not make it unlawful for a relevant person to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration and nationality functions."
67. Let me state the problem as clearly as I can. What we are postulating is this: i) The immigration officers at Prague have treated all passengers in the same way irrespective of race in the sense that they have genuinely tried their utmost not to discriminate against Roma but rather to give Roma and non-Roma alike a fair and equal opportunity to satisfy them on the balance of probabilities that they are coming for a permitted purpose and will not apply for asylum on arrival. So the judge below has found and so to my mind he was entitled to find. ii) Being aware, however, that Roma alone as a group suffer discrimination (whether or not amounting to persecution) in the Czech Republic and so in general have a much greater incentive than others to seek asylum and therefore, when being questioned at Prague airport, to lie about their intentions in visiting the United Kingdom, immigration officers on that account are inevitably more sceptical of a Roma applicant's true intentions than those of a non-Roma, and are less easily persuaded that the Roma is genuinely intending to come only for a permitted purpose. iii) 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.
70. The first point made by the appellants is that an assumption that the effective implementation of the Prague scheme requires a racially discriminatory approach on the part of the immigration officers involved underlies the very authorisation granted by the minister just ten weeks before the operation began - see paragraphs 58 and 59 above. The authorisation expressly provided for such discrimination. True, the Home Office for whatever reason chose not to make use of it. Its grant, however, is not without significance; rather it emphasises the need for such an exception to justify the practice.
84. The policy at Prague airport is manifestly not to refuse Roma as Roma; rather it is to refuse prospective asylum seekers, or rather those who cannot satisfy the immigration officer to the requisite standard that they will not claim asylum on arrival. (That the policy is designed also to prevent travel to the UK even for one of the permitted purposes if the applicant cannot satisfy the immigration officer of a relevant condition for entering, seems to me for present purposes immaterial.) It is, it must be noted, a very different policy from that which could properly have been adopted pursuant to paragraph 3 of the s19D(2)(b) authorisation, namely a refusal of leave to any and all Roma qua Roma, irrespective of their purpose in travelling. That, of course, would have involved direct discrimination and been unlawful save under an express statutory authorisation.
85. Nor to my mind can the Prague operation be said to fall foul of the principle established in the Hong Kong case (see paragraph 76 above) or the Northern Ireland case (see paragraph 79 above). In both those cases a general policy was being adopted which necessarily depended for its validity upon assumed characteristics as between the respective sexes and which inevitably, therefore, disadvantaged a number of girls without their being given an opportunity to qualify for the relevant benefit on individual merit.
86. I have already recognised that, because of the greater degree of scepticism with which Roma applicants will inevitably be treated, they are more likely to be refused leave to enter than nonRoma applicants. But this is because they are less well placed to persuade the immigration officer that they are not lying in order to seek asylum. That is not to say, however, that they are being stereotyped. Rather it is to acknowledge the undoubtedly disadvantaged position of many Roma in the Czech Republic. Of course it would be wrong in any individual case to assume that the Roma applicant is lying, but I decline to hold that the immigration officer cannot properly be warier of that possibility in a Roma?s case than in the case of a non-Roma applicant. If a terrorist outrage were committed on our streets today, would the police not be entitled to question more suspiciously those in the vicinity appearing to come from an Islamic background? Similarly in the case of sectarian violence in Northern Ireland. These seem to me the relevant analogies here, not the now defunct practice of repeatedly stopping and searching black youths, clearly an unjustifiable interference with their liberty unless reasonable grounds exist for suspecting those actually stopped.
87. There are, it seems to me, various jurisprudential paths by which to reach what I conceive to be the common sense result in this case. I would hold either that the Roma applicants are not being treated less favourably than others in the respects alleged, alternatively, if they are, that this is not ?on racial grounds?. If necessary I would hold that there are no relevant comparators against whom to judge the treatment of Roma applicants. I believe that the true analysis of this case is that, so far from Roma applicants being treated less favourably than others in a comparable position, in reality there is being applied to them a requirement or condition which is applied equally to others - the requirement that they satisfy the immigration officer that they are not travelling to the UK with a view to claiming asylum. True, a considerably smaller proportion of Roma applicants than others are able to satisfy that requirement, but it is nonetheless justifiable. In other words, this appears to me to be a case of justifiable indirect discrimination. No case of indirect discrimination, however, has ever been advanced here, or is now sought to be advanced. The appellants? claim stands or falls as one of direct discrimination. For the reasons already given, I take the view that it falls."
Appeal rejected. The case was eventually heard in the House of Lords.
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