European Roma Rights v Immigration Officer

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WARD,LORD JUSTICE LAWS,Lord Justice Simon Brown
Judgment Date20 May 2003
Neutral Citation[2003] EWCA Civ 666,[2003] EWCA Civ 60
Docket NumberC1/2002/2183(A),Case No: C1/2002/2183/QBACF
Date20 May 2003

[2003] EWCA Civ 60

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(Mr Justice Burton)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Ward

and

Lord Justice Laws

C1/2002/2183(A)

In The Matter Of An Application For Judicial Review
The Queen On The Application Of
The European Roma Rights Centre
And Others
Claimants/Applicants
and
(1) The Immigration Officer At Prague Airport
(2) The Secretary Of State For The Home Department
Respondents

Ms D Rose (instructed by Liberty, London SE1) appeared on behalf of the Applicant Claimants

Ms M Carss-Frisk QC and Mr M Fordham (instructed by the Treasury Solicitor, London SE1) appeared on behalf of the Respondents

LORD JUSTICE WARD

I will ask Lord Justice Laws to give the first judgment.

LORD JUSTICE LAWS
1

This is a renewed application for permission to appeal against a decision of Mr Justice Burton, given in the Administrative Court on 8th October 2002, when he dismissed the applicants' application for judicial review.

2

That application was directed at a practice called pre-clearance which the Home Office had instituted at Prague Airport on 18th July 2001 pursuant to article 7 of the Immigration (Leave to Enter and Remain) Order 2000. Article 7(1) empowered an immigration officer, who might be in the United Kingdom or outside it, to give or refuse leave to enter the United Kingdom to a person at any time before that person's departure for, or in the course of his journey to, the United Kingdom.

3

The nature of the pre-clearance practice is helpfully summarised in the applicants' skeleton argument before us as follows:

"6…. UK Immigration Officers were posted at Prague Airport to interview passengers before they boarded flights to the UK. Leave to enter was granted to passengers whom the Officers were satisfied were intending to visit the UK for a purpose within the Immigration Rules. Others, including those who stated that they were intending to claim asylum on arrival in the UK, were immediately refused leave to enter. This effectively prevented them from travelling, since no airline would carry them.

7.The practice of 'pre-clearance' at Prague Airport has been operated by the Respondents sporadically since June 2001, usually for periods of days or weeks at a time. It is instituted unpredictably and without prior warning.

8.The avowed policy aim of this practice was to prevent Czech nationals from claiming asylum in the UK. It is well-recognised on all sides that the overwhelming majority of Czech nationals who claim asylum in the UK are Roma. …"

I understand those assertions to be uncontroversial, save perhaps for the two sentences in paragraph 8.

4

The first applicant in the case is an organisation based in Budapest devoted to the protection of the rights of Romani people in Europe. The remaining applicants are all Czech Romas who were refused leave to enter Prague Airport under the pre-clearance scheme.

5

Mr Justice Burton rejected all the grounds put forward for judicial review.

6

Four grounds of appeal are sought to be advanced. These are:

(1) The Convention issue. The pre-clearance operation is incompatible with the United Kingdom's international legal obligations, having regard in particular to the United Kingdom's ratification of the 1951 Refugee Convention.

(2) The discrimination issue. The operation at Prague Airport has been conducted unlawfully in that the controls have been operated in a manner that discriminates on racial grounds against Czech nationals of Romani ethnic origin. I shall say more about the formulation of the discrimination issue when I deal, as briefly as I may, with Ms Carss-Frisk's response to today's application.

(3) The fettering of discretion issue. The refusal of leave to enter to three of the applicants, MZ, IB and AKu, who were all seeking to travel to the United Kingdom in order to claim asylum, was unlawful in that leave to enter was refused summarily without any application of the admitted discretion of the second respondent, the Secretary of State, to consider their asylum claim.

(4) The Immigration Rules issue. The refusal of leave to enter to the same applicants, MZ, IB and AKu, on the ground that they were not seeking entry for a purpose covered by the Immigration Rules was unlawful because they were seeking entry in order to claim asylum and that is a purpose covered by the Rules.

7

The judge below granted permission to appeal on the Convention issue and the Immigration Rules issue, recognising their importance, and perhaps in particular that of the Convention issue. That issue raises unquestionably large and significant questions.

8

The applicants renewed their application for permission in relation to grounds 2 and 3. I refused it on consideration of the papers on 13th December 2002. Thus it is now renewed before my Lord and myself today.

9

I turn to the discrimination issue. There is no dispute as to the law to be applied. It was succinctly summarised by Mr Justice Burton at paragraph 50 of his judgment thus:

"(i)A complainant must prove his or her case on the balance of probabilities.

(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.

(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.

(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."

10

Then in paragraph 51 the learned judge referred to the danger of what has been called "stereotyping", and to a passage from the speech of Lord Nicholls in Nagarajan. It is not necessary for me, with respect, to go further into that.

11

In the skeleton argument for the applicants many detailed points are advanced at paragraphs 46 to 84. I have of course carefully read the document. The judge for his part dealt with these detailed matters at paragraphs 53 to 74 of his judgment. I do not propose to set out all the material in the skeleton argument. It seems to me to be more productive to encapsulate as succinctly as I can the submissions made by Ms Rose for the applicants today.

12

Ms Rose opened her submissions by referring to the well-known decision of this court in Anya v University of Oxford [2001] ICR 847. She sought to place emphasis on one of the propositions accepted in paragraph 50 of Mr Justice Burton's judgment, namely that overt proof of direct discrimination is rarely to be found. She referred to certain other propositions to be gleaned from the judgment of Sedley LJ in Anya and from citations made by him from earlier decisions. At p.851D there is a reference to the fact that employers will generally not admit racial discrimination even to themselves. At pp.851H-852A it is emphasised that difference in treatment between a person of one race and a person of another, where that is systematically done, calls for an explanation. At pp.852H-853A emphasis is placed on the fact that the issues which fall to be considered in a racial discrimination case are separate but cumulative and require to be dealt with separately. At p.855E it is stated (and this has importance, says Ms Rose, for the present case) that the judge has to make findings of fact on all the relevant issues, bearing in mind all the evidence. That may seem jejune and elementary, but Ms Rose has a specific point to the effect that here she says the learned judge did not make findings about the dimension of the evidence, namely what had befallen certain persons seeking to travel to the UK, who were not in fact claimants in the proceedings in the context of the racial discrimination issue.

13

Miss Rose proceeded to submit that on the facts of this case there was plain material from which it could readily be inferred (indeed I think she would say the evidence was direct) that immigration officers treated Roma at Prague Airport less favourably on racial grounds; yet, she says, the judge did not make a finding, or at any rate an express finding, upon that important issue. The evidence, she says, was as stark as this: it is shown that, of persons seeking to join flights to come to the United Kingdom, Roma were treated less favourably than non-Roma to the tune of an enormous percentage difference. Nearly 90 per cent of Roma applicants were refused permission to fly; only 0.2 per cent of non-Roma passengers suffered the same fate.

14

Then she says that the immigration officers in Prague were there as part of a special operation which was specifically intended to reduce what has sometimes been called "asylum overload". Those immigration officers were of course perfectly well aware why they were there and aware also that the majority of asylum seekers at Prague were of Roma origin.

15

Next she says that only two months before this operation began an authorisation had been issued by the Home Office stating that it was lawful to refuse leave to enter to Roma on racial grounds. The immigration officers at the airport were aware of that document. They were never instructed, however, not to apply it. It was not in terms at any stage countermanded, and the Home Office accepted that that was...

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