Khamta Colbert Naraine v Hoverspeed Ltd
| Jurisdiction | England & Wales |
| Judge | LORD CHIEF JUSTICE,LORD JUSTICE SCHIEMANN,LORD JUSTICE MAY |
| Judgment Date | 12 November 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J1112-13 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 1999 |
| Docket Number | Case No: CCRTF 1998/0190/82 |
[1999] EWCA Civ J1112-13
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE PEPPIT QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Chief Justice
Lord Justice Schiemann
and
Lord Justice May
Case No: CCRTF 1998/0190/82
Richard Drabble QC and Ramby de Mello (instructed by Commission for Racial Equality, Birmingham B1 1TT) for the claimant
Christopher Vajda QC, Rhodri Thompson and Paul Nicholls (instructed by Cripps Harries Hall, TunbridgeWells) for the defendant
Gerald Barling QC, Eleanor Sharpston QC and Kieron Beal (instructed by the Treasury Solicitor) for the Secretary of State
Friday, 12 November 1999
On 31 May 1994 Mr Naraine, his wife and his two children left home to make a day trip to France with their car. They were to take the Hoverspeed ferry from Folkestone to Boulogne. He had bought the tickets in advance. But when he and his family reached the ferry terminal on the outward journey a hitch occurred. He had previously held a full British passport but this had expired, and all he had with him on 31 May was a British Visitor's Passport. This showed that he had been born in what had at the time been called British Guiana, now Guyana, but said nothing about his citizenship. Mr Naraine's place of birth and his citizenship were not matters of direct concern to Hoverspeed. The company wanted to carry Mr Naraine to France and back again at the end of the day with all the company's other passengers. But the officers of Hoverspeed knew that, at the time, the French authorities were refusing to admit holders of British Visitor's Passports which showed that they had been born outside the United Kingdom. Not only were they refusing to allow such passengers to enter France, they were imposing substantial fines on sea carriers who brought such passengers to France. Hoverspeed was very unhappy at this policy of the French authorities. One of Hoverspeed's Officers asked Mr Naraine if he had any evidence of his citizenship but he, having understandably failed to anticipate any objection to his British Visitor's Passport, had none. Hoverspeed tried to secure the agreement of the French authorities that if Mr Naraine were brought to France he would be allowed to enter. But the French authorities were adamant that he would not. So Hoverspeed reluctantly declined to carry Mr Naraine to Boulogne. The same problem did not arise with Mrs Naraine and the children, because they were all travelling on a full New Zealand passport. But since Mr Naraine could not travel, the family outing did not take place.
Mr Naraine is black, and of Asian Caribbean origin. Although born in Guyana, he is, and has for many years been, a British citizen. He was aggrieved at the refusal of Hoverspeed to carry him to France and brought proceedings in the Canterbury County Court complaining that Hoverspeed had violated his Community Law right to travel freely from one member state (the United Kingdom) to another (France) and that it had unlawfully discriminated against him on racial grounds. The case came before His Honour Judge Peppitt QC sitting with assessors. He dismissed both Mr Naraine's claims. Against that decision Mr Naraine now appeals by permission of this court. He relies on both the grounds advanced below. By order of 28 May 1999 the Home Secretary was given leave to be heard on this appeal, and we have heard his submissions on the first issue.
I. Free movement
Over 40 years ago the Council of Europe and the Organisation for European Economic Co-operation sought to promote freedom of travel between member countries on production of nothing more than an identity card. But British residents no longer had identity cards. So some other expedient had to be found if the British were to participate in these new arrangements. The expedient chosen was a new document, the British Visitor's Passport (or BVP for short). The use of this new document was the subject of bilateral agreements between the United Kingdom and 16 Western European countries. In the case of France, the agreement was made by an exchange of diplomatic notes on 14 February 1961. It was recorded in the agreement (to which a specimen BVP was attached) that an applicant for a BVP would not be required by the UK authorities to produce documentary evidence of identity and national status but would be required to sign a declaration that he was a British subject, citizen of the United Kingdom and Colonies. In this appeal Mr Naraine relies in particular on paragraph 3(a) and (b) of the agreement, which provided:
"(a) The Government of the French Republic undertakes to accept the British Visitor's Passport as a valid passport.
(b) Subject to the provisions of sub-paragraphs (d) to (g) below, holders of valid British Visitor's Passports may enter and stay in the metropolitan territory of France provided that their stay does not exceed three months and is not for employment."
The agreement went on to provide, omitting references to French nationals entering the United Kingdom:
"(e) … British subjects, citizens of the United Kingdom and Colonies, proceeding to the metropolitan territory of France under the terms of this agreement shall not be exempt from the necessity of complying with … the laws and regulations … of the French Republic relating to the entry, residence (temporary or permanent) and the employment or occupation of foreigners. Travellers who are unable to satisfy the competent authorities that they comply with these laws and regulations may be refused leave to enter or land.
(f) The right is reserved to the competent authorities of the French Republic … to refuse any person leave to enter or stay in the territory concerned in any case where that person is regarded as undesirable or otherwise ineligible under the general policy of the … [Government] relating to the entry and stay of aliens."
We have been shown an application form for a BVP. This stipulates that the holder and each person to be included in the BVP must be a British citizen or a British Dependent Territories citizen or a British Overseas citizen and states that the BVP "does not exempt you from any entry requirements in force" and that BVPs "are not definite evidence of National Status. You may be asked about your claim to nationality." The BVP issued to Mr Naraine on 25 June 1993 was consistent with these provisions. Among the conditions printed on it were the following:
"(1) A British Visitor's passport may only be used by a British citizen, a British Dependent Territories citizen or a British Overseas citizen who is resident in the United Kingdom, Isle of Man or Channel Islands. It will not, however, be accepted as definite evidence of national status.
(5) The possession of this Visitor's Passport does not exempt the bearer from compliance with any immigration regulations in force in the country or countries visited."
For many years BVPs were used, without causing any difficulties of which I am aware, for short visits to France. But the BVP was not regarded for purposes of our own immigration régime as a passport (see Minta v. Secretary of State for the Home Department [1992] Imm. AR 380) and a time came when it came to be regarded with disfavour. In December 1994 the Home Secretary described it as
"a poor quality travel document which does not provide definite evidence of national status or of identity, and its security is poor. It is used in the evasion of immigration controls, and its use by criminals, terrorists and football hooligans has been of considerable concern to police and immigration authorities in this country, and in the EC for a long time."
In France, as elsewhere, immigration control became more rigorous with the passage of time. France, unlike the United Kingdom, was a party to the Schengen Convention which required contracting states to make provision in their domestic law that
"the carrier must take all necessary measures to ensure that the passenger carried by air or sea is in possession of the travel documents required for entry into the territory [of the Contracting States]."
This obligation was incorporated into French domestic law by Law No. 92–190 of 26 February 1992, which inserted a new Article 20b into a 1945 ordinance. Article 20b, so far as relevant, provided:
"I. Is punishable by a maximum fine of 10,000 francs the air or maritime carrier which disembarks on French territory, from another State, an alien who is not a national of a Member State of the European Economic Community without a travel document and, where required, the visa required by the law or international agreement which is applicable to him on the grounds of his nationality.
The breach is reported in a written report by a functionary of one of the bodies of which the list has been defined by decree in the Council of State. A copy of the report is submitted to the carrier concerned. The breach thus noted gives rise to a fine imposed by the Minister for the Interior. The fine can be imposed as many times as there are passengers affected by this. The value of the fine is payable to the Treasury by the carrier. …
II. The fine provided for in paragraph one of this article is not imposed:
1. Where the alien who is not a member of a member state of the European Economic Community requesting asylum has been admitted onto French territory or where the application for asylum was not manifestly without grounds;
2. Where the carrier establishes that the required travel documents were shown to it at the time of embarkation or where the documents shown did not show any manifest sign...
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