European Roma Rights Centre & Ors v Immigration Officer At Prague Airport & Anor

Article 33 of the Geneva Convention protects refugees who are outside their country from expulsion or return to a place of threatened persecution. It does not require a state to admit prospective asylum seekers or prevent it from controlling their departure before they leave their own country. The Convention’s good-faith principle cannot create obligations absent from the treaty. Under the immigration rules, asylum seeking is not a permitted entry purpose for an application made abroad. More intensive questioning of Roma, based on their greater likelihood of seeking asylum, was not direct racial discrimination where the same requirement applied to all applicants. Any indirect discrimination would have been justifiable.

The European Roma Rights Centre and six Czech Roma challenged pre-entry immigration clearance operated at Prague Airport. They argued that the scheme prevented access to asylum in breach of the Geneva Convention and international law, breached the immigration rules, and unlawfully discriminated against Roma under the Race Relations Act 1976.

Burton J rejected all four grounds and dismissed the application. Permission to appeal was granted on the Convention, immigration-rules and race-discrimination issues. Permission was refused on the challenge concerning the Secretary of State’s extra-statutory discretion. The central questions were whether the Prague scheme was unlawful under the Convention or immigration rules, and whether its operation constituted direct racial discrimination.

1. Convention challenge. The appeal was dismissed on this issue. The Convention defines a refugee by reference to a person already outside the country of nationality. Article 33 concerns expulsion or return to a threatening frontier. It does not govern a scheme which prevents a person remaining in the country of nationality from travelling to the United Kingdom. The distinction from Sale was crucial, although Simon Brown LJ regarded that decision as wrongly decided.
2. The Convention does not confer an individual right of admission or access to a country in order to claim asylum. Its limited provisions concerning admission and travel documents confirm the distinction between obligations owed to refugees already within a state and the absence of a general duty to admit prospective refugees. The court found no principled distinction in international law between visa controls and the Prague pre-clearance scheme. The principle of good faith informs treaty performance and interpretation but is not itself a source of obligations where none otherwise exists.
3. Immigration rules. Asylum applications under rules 327 and 328 are applications made in the United Kingdom and referred to the Secretary of State. Asylum seeking and refugee status are not categories or purposes covered by the rules for which leave to enter may be obtained abroad. Rule 320 therefore permitted refusal of leave where the applicant could not satisfy the officer that entry was being sought for a permitted purpose.
4. Race discrimination. The majority held that the evidence did not establish discriminatory operation of the scheme. Roma applicants might properly be questioned more sceptically because they were more likely to seek asylum and conceal that purpose. That did not amount to treatment less favourably on racial grounds, since the requirement to satisfy the officer applied equally to all applicants. The court also regarded any indirect discrimination as justifiable. Laws LJ dissented on this issue. He considered the more intrusive questioning to be less favourable treatment based on a racial stereotype, even if the underlying assumption was often accurate, and would have allowed the appeal.

The appeal was dismissed with costs. Permission to appeal to the House of Lords was granted.

1. Court of Appeal (Civil Division): [2003] EWCA Civ 666. Appeal dismissed with costs. Laws LJ would have allowed the appeal on the race-discrimination issue.
2. High Court, Queen’s Bench Division, Administrative Court: Burton J, judgment dated 8 October 2002. All four grounds were rejected and the application was dismissed.