European Roma Rights v Immigration Officer

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD STEYN,LORD HOPE OF CRAIGHEAD,LORD BINGHAM OF CORNHILL
Judgment Date09 December 2004
Neutral Citation[2004] UKHL 55
Date09 December 2004

[2004] UKHL 55

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Regina
and
Immigration Officer at Prague Airport

and another

(Respondents)
ex parte European Roma Rights Centre

and others

(Appellants)
LORD BINGHAM OF CORNHILL

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.

Background

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...

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