House of Lords
Session 2004 - 05
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Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
THURSDAY 9 DECEMBER 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hope of Craighead
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
 UKHL 55
LORD BINGHAM OF CORNHILL
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 ( 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):
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:
This provision was supplemented by a new rule 17A of the Immigration Rules, which provides:
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:
Under article 1A(2), the term "refugee" applies to any person who
For present purposes the most relevant articles of the Convention are articles 31, 32 and 33:
7. Under rule 16 of the Statement of Changes in Immigration Rules (1983)(HC 169) it was formerly provided:
Despite this somewhat informal mode of incorporation Lord Keith of Kinkel, in R v Secretary of State for the Home Department, Ex p Sivakumaran  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
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:
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:  EWCA Civ 666,  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:
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  AC 272, 282; R v Bottrill, Ex p Kuechenmeister  KB 41; Ruddock v Vadarlis  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  AC 542, 546, the Privy Council held:
In Johnstone v Pedlar  2 AC 262, 283, Lord Atkinson said:
More recently, in T v Secretary of State for the Home Department  AC 742, 754, Lord Mustill said:
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  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:
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
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.