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


SESSION 2004-05
[2004] UKHL 55
on appeal from: [2003]EWCA Civ 666






Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell




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

[2004] UKHL 55


My Lords,

    1.  At issue in this appeal is the lawfulness of procedures adopted by the British authorities and applied to the six individual appellants at Prague Airport in July 2001. All these appellants are Czech nationals of Romani ethnic origin ("Roma"). All required leave to enter the United Kingdom. All were refused it by British immigration officers temporarily stationed at Prague Airport. Three of these appellants stated that they intended to claim asylum on arrival in the UK. Two gave other reasons for wishing to visit the UK but were in fact intending to claim asylum on arrival. One (HM) gave a reason for wishing to visit the UK which the immigration officer did not accept: she may have been intending to claim asylum on arrival in the UK or she may not. The individual appellants, with the first-named appellant ("the Centre", a non-governmental organisation, based in Budapest, devoted to protection of the rights of Roma in Europe), challenge the procedures applied to the individual appellants as incompatible with the obligations of the UK under the Geneva Convention (1951) and Protocol (1967) relating to the Status of Refugees and under customary international law. They also challenge the procedures as involving unjustifiable discrimination on racial grounds.


    2.  It is well known that the number of those seeking asylum in the UK has risen steeply in recent years. It is also well known that while a minority of asylum applications have succeeded, whether directly or on appeal, a large majority have not. There is, as Burton J observed in paragraph 10 of his very lucid judgment in these proceedings ([2002] EWHC 1989 (Admin)), an "administrative, financial and indeed social burden borne as a result of failed asylum seekers".

    3.  An increasing number of applications for asylum in recent years have been made by Czech nationals. The number more than doubled from 515 in 1998 to 1200 in 2000. It is agreed that the vast majority (if not all) of these applications were made by Roma. At around this time Czech Roma generally had low levels of education, suffered from high unemployment and lived in relatively poor housing conditions. Some Roma may have faced discrimination from within Czech society in employment, education and access to services. Sporadic attacks by "skinheads" occurred. In some individual cases (it is agreed) discrimination and harassment may have been sufficiently severe to reach the level of persecution. But the success rate of asylum applications in this country was not high. Of 1800 asylum decisions affecting Czech applicants made by the Home Secretary in the year 2000, only ten were to grant asylum and a further ten to grant exceptional leave to remain. The success rate of asylum appeals by Czech nationals was around 6% at the beginning of 2001.

    4.  In February 2001 the governments of this country and the Czech Republic made an agreement. The effect of this was to permit British immigration officers to give or refuse leave to enter the UK to passengers at Prague Airport before they boarded aircraft bound for this country. The agreement was first implemented on 18 July 2001. British immigration officers were posted to Prague airport to "pre-clear" all passengers before they boarded flights for the UK. Leave to enter was granted to those passengers requiring it who satisfied the officers that they were intending to visit the UK for a purpose within the Immigration Rules. Others who required leave to enter, including those who stated that they were intending to claim asylum in the UK and those who the officers concluded were intending to do so, were refused leave to enter. This effectively prevented them from travelling to this country, since no airline would carry them here. This operation was mounted at Prague Airport intermittently, usually for a few days or weeks at a time, without advance warning. Its object was to stem the flow of asylum seekers from the Czech Republic. That was its effect. In the three weeks before the operation began there were over 200 asylum claims (including dependants) made by Czech nationals at entry points in the UK. Only 20 such claims were made in the three weeks after it began, during which period 110 intending travellers were refused leave to enter at Prague Airport. Among those refused leave to enter at this time were the six individual appellants, to whom it is convenient to refer collectively as "the appellants".

Domestic immigration legislation

    5.  The domestic statute generally governing the administration of immigration control is the Immigration Act 1971. Under sections 1 and 2 of this Act, British and some Commonwealth citizens are in the ordinary way free to come and go from the UK without let or hindrance. Others are not permitted to enter unless given leave to do so under the Act (section 3). The power to give or refuse leave to enter is exercised by immigration officers (section 4). There are a number of grounds, specified in the Immigration Rules, on which leave to enter may be granted, as (for example) to visit or study. The Rules also specify grounds on which leave to enter will be refused, one of which (rule 320(1)) is that "entry is being sought for a purpose not covered by these Rules". By section 3A of the Act, inserted by section 1 of the Immigration and Asylum Act 1999, it was provided (so far as relevant):

    "(1)  The Secretary of State may by order make further provision with respect to the giving, refusing or varying of leave to enter the United Kingdom.

    (2) An order under subsection (1) may, in particular, provide for -

      (a) leave to be given or refused before the person concerned arrives in the United Kingdom;

      (b) the form or manner in which leave may be given, refused or varied;

      (c) the imposition of conditions;

      (d) a person's leave to enter not to lapse on his leaving the common travel area.

    (3) The Secretary of State may by order provide that, in such circumstances as may be prescribed -

      (a) an entry visa, or

      (b) such other form of entry clearance as may be prescribed,

    is to have effect as leave to enter the United Kingdom."

It was in due course provided that visas were required to enter the UK by nationals or citizens of a large number of countries, not including the Czech Republic. It was also provided, in article 7 of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161), as follows:

    "Grant and refusal of leave to enter before arrival in the United Kingdom

    7. - (1) An immigration officer, whether or not in the United Kingdom, may give or refuse a person leave to enter the United Kingdom at any time before his departure for, or in the course of his journey to, the United Kingdom.

    (2) In order to determine whether or not to give leave to enter under this article (and, if so, for what period and subject to what conditions), an immigration officer may seek such information, and the production of such documents or copy documents, as an immigration officer would be entitled to obtain in an examination under paragraph 2 or 2A of Schedule 2 to the Act.

    (3) An immigration officer may also require the person seeking leave to supply an up to date medical report.

    (4) Failure by a person seeking leave to supply any information, documents, copy documents or medical report requested by an immigration officer under this article shall be a ground, in itself, for refusal of leave."

This provision was supplemented by a new rule 17A of the Immigration Rules, which provides:

    "Persons outside the United Kingdom

    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. An Immigration Officer may exercise these powers whether or not he is, himself, in the United Kingdom. However, an Immigration Officer is not obliged to consider an application for leave to enter from a person outside the United Kingdom."

The Refugee Convention and its domestic effect

    6.  The United Kingdom is one of some 140 states parties to the 1951 Refugee Convention. The broad aims of that Convention are reflected in its preamble:

    "The High Contracting Parties,

    Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,

    Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms,

    Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement,

    Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation,

    Expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States,

    Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner,…..".

Under article 1A(2), the term "refugee" applies to any person who

    "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

For present purposes the most relevant articles of the Convention are articles 31, 32 and 33:

    "Article 31. Refugees unlawfully in the country of refuge

    1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

    2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

    Article 32. Expulsion

    1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

    2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

    3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

    Article 33. Prohibition of expulsion or return ('refoulement')

    1. 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.

    2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."

    7.  Under rule 16 of the Statement of Changes in Immigration Rules (1983)(HC 169) it was formerly provided:

    "Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmnd 3906). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments …"

Despite this somewhat informal mode of incorporation Lord Keith of Kinkel, in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990, observed that the provisions of the Convention and Protocol had for all practical purposes been incorporated into United Kingdom law. But in 1993 steps were taken to strengthen the mode of incorporation by providing in primary legislation, in section 2 of the Asylum and Immigration Appeals Act 1993, headed "Primacy of Convention", that

    "Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention" [defined to mean the 1951 Convention and the Protocol]."

Plainly the Rules cannot provide for asylum applications to be handled less favourably to the applicant than the Convention requires.

    8.  The following immigration rules, relating to asylum, are relevant:

    "Definition of asylum applicant

    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 United Nations Convention and Protocol relating to the Status of Refugees 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.

    Applications for asylum

    328. All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees. 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.

    329. Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate under section 11 or section 12 of the Immigration and Asylum Act 1999, no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom.

    330. If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter.

    Grant of Asylum

    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 Convention and Protocol; 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 Convention and Protocol, 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.

    335. If the Secretary of State decides to grant asylum to a person who has been given leave to enter (whether or not the leave has expired) or to a person who has entered without leave, the Secretary of State will vary the existing leave or grant limited leave to remain.

    Refusal of asylum

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

The course of proceedings

    9.  In their application for judicial review, the Centre and the appellants challenged the procedure adopted by the Immigration Officer at Prague Airport on the grounds, first, that it unlawfully discriminated against Roma on racial grounds and, secondly, that it was (put very generally) contrary to the obligations of the United Kingdom under the 1951 Convention and customary international law. Both these contentions were fully argued before Burton J, who rejected them in the judgment already referred to and dismissed the application. In the Court of Appeal (Simon Brown, Mantell and Laws LJJ) the Centre and the appellants again advanced both contentions, this time with the support of the United Nations High Commissioner for Refugees (represented by Mr Guy Goodwin-Gill) as intervener. All three members of the court held against the Centre and the appellants on the Convention and international law issue, and a majority (Simon Brown and Mantell LJJ, Laws LJ dissenting) on the discrimination issue also: [2003] EWCA Civ 666, [2004] QB 811.

    10.  Both issues (perhaps better described as groups of issues) have again been fully debated before the House, again with the benefit of Mr Goodwin-Gill's submissions on behalf of the UNHCR. On the discrimination issue, I am in full and respectful agreement with the opinion of my noble and learned friend Baroness Hale of Richmond and would, for the reasons which she gives, make the order which she proposes. I shall in this opinion address only the Convention and international law issue, as it is convenient to call it.

The Convention and international law issue

    11.  The power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state. In England, it was a prerogative power of the crown. Sir William Holdsworth (A History of English Law, vol x, pp 395-396) considered Jeffreys CJ undoubtedly correct when he said in The East India Company v Sandys (1684) 10 ST 371, at pp 530-531:

    "I conceive the King had an absolute power to forbid foreigners, whether merchants or others, from coming within his dominions, both in times of war and in times of peace, according to his royal will and pleasure; and therefore gave safe-conducts to merchants strangers, to come in, at all ages, and at his pleasure commanded them out again."

But the crown's prerogative power over aliens was increasingly questioned, and since 1793 the power to exclude aliens has in this country been authorised by statute, whether temporary in effect (33 George III c.4; 56 George III c.86; 11 & 12 Victoria c.20) or permanent (for example, the Aliens Act 1905, the Aliens Restriction Act 1914).

    12.  It has been the humane practice of this and other states to admit aliens (or some of them) seeking refuge from persecution and oppression in their own countries. The generous treatment of French protestants in this country is an early and obvious example (see Holdsworth, op cit, vol IX, pp 100-101), and many later examples spring to mind. But even those fleeing from foreign persecution have had no right to be admitted and no right of asylum. There is a wealth of authority to this effect: see, for example, Blackstone, 1 Commentaries, p 251; Musgrove v Toy [1891] AC 272, 282; R v Bottrill, Ex p Kuechenmeister [1947] KB 41; Ruddock v Vadarlis [2001] FCA 1329, (2001) 183 ALR 1, para 125; Halsbury's Laws of England, 3rd ed (1952), vol 1, para 967. Three quotations will suffice. In Attorney-General for Canada v Cain [1906] AC 542, 546, the Privy Council held:

    "One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests: Vattel, Law of Nations, book 1, s 231; book 2, s 125."

In Johnstone v Pedlar [1921] 2 AC 262, 283, Lord Atkinson said:

    "Aliens, whether friendly or enemy, can be lawfully prevented from entering this country and can be expelled from it …"

More recently, in T v Secretary of State for the Home Department [1996] AC 742, 754, Lord Mustill said:

    "although it is easy to assume that the appellant invokes a 'right of asylum', no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries."

Over time there came to be recognised a right in sovereign states to give refuge to aliens fleeing from foreign persecution and to refuse to surrender such persons to the authorities of their home states: Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55, (2000) 204 CLR 1, paras 137-138; P Weis, "The United Nations Declaration on Territorial Asylum" (1969) CYIL 92, 95. But these rights were not matched by recognition in domestic law of any right in the alien to require admission to the receiving state or by any common law duty in the receiving state to give it.

    13.  The treatment of those seeking refuge from persecution in their home states was, pre-eminently, a field calling for international co-operation and agreement. Inter-governmental arrangements were made between certain states in 1922, 1924, 1926 and 1928, and in 1933 a Convention relating to the International Status of Refugees was made at Geneva under the auspices of the League of Nations. This was of limited application. Article 3 provided:

    "Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who have been authorized to reside there regularly, unless the said measures are dictated by reasons of national security or public order.

    It undertakes in any case not to refuse entry to refugees at the frontiers of their countries of origin …"

This language might be understood to oblige contracting states to admit refugees coming to seek asylum, but in the opinion of a respected commentator the word refouler in the authoritative French text was not used to mean "refuse entry" but "return" "reconduct" or "send back", and the provision did not refer to the admission of refugees but only to the treatment of refugees who were already in a contracting state: A Grahl-Madsen, The Status of Refugees in International Law (1972), vol II, para 179(i). Further international conventions and arrangements were made in 1935, 1938, 1939 and 1946.

    14.  Article 14 of the Universal Declaration of Human Rights proclaimed in 1948 that

    "Everyone has the right to seek and to enjoy in other countries asylum from persecution."

Those who drafted this provision rejected a proposal that a right to asylum should be granted, and Professor Hersch Lauterpacht described the formula adopted as "artificial to the point of flippancy": "The Universal Declaration of Human Rights" (1948) 25 BYIL 354, 373-374. See also F Morgenstern, "The Right of Asylum" (1949) 26 BYIL 327, 336-337; Grahl-Madsen, op cit, para 179 (ii).

    15.  The brutal persecutions and the mass displacements of people experienced during the 1930s and 1940s highlighted the need for a new international agreement on refugees. This was negotiated under the aegis of the newly-formed United Nations. The provisions most germane to this appeal have been quoted in paragraph 6 above, and need not be repeated. Nor need reference be made to the 1967 Protocol. But attention must be drawn to certain features of the Convention. First, it was (like its predecessor) a convention relating to the status of refugees. The focus of the Convention was on the treatment of refugees within the receiving state. Secondly, and like most international conventions, it represented a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 247-248, 274; Rodriguez v United States (1987) 480 US 522, 525-526. Thirdly, the Convention was exclusively directed to those who are "outside the country" of their nationality or, in the case of stateless persons, "outside the country" of their former habitual residence. It is only to persons meeting that definition, expressed in article 1A(2) of the Convention, that the Convention applies at all, unless they have been considered to be refugees under earlier arrangements. Fourthly, the Convention is directed towards those who are within the receiving state. Fifthly, the French verb refouler and the French noun refoulement are, in article 33, the subject of a stipulative definition: they must be understood as having the meaning of the English verb and noun "return". The last three of these points merit some elaboration.