R (European Roma Rights Centre and others) v Immigration Officer at Prague Airport

This appeal concerned the lawfulness of a Home Office "pre-clearance" operation at Prague Airport under which British immigration officers gave or refused leave to enter the United Kingdom before passengers boarded flights. The claimants challenged the procedure as contrary to the 1951 Refugee Convention (in particular the non-refoulement obligation in article 33 and related provisions) and to customary international law, and as amounting to unlawful racial discrimination against Czech Roma in breach of the Race Relations Act 1976.

The House held (majority on the asylum/international-law issue) that the Refugee Convention and its prohibition on return or expulsion applied to persons who were already outside their country of nationality and to persons within the territory (or at the frontier) of the receiving state; the Convention did not impose a general obligation to admit prospective asylum seekers or to examine asylum claims extraterritorially at points of embarkation. The court therefore rejected the contention that the Prague pre-clearance scheme violated article 33 or created a new customary international obligation requiring in-country examination of asylum claims.

Separately, a majority of the House (Baroness Hale, Lord Steyn, Lord Hope and Lord Carswell) accepted that the operation was inherently and systemically discriminatory in practice against Roma. Having regard to the statistics, training materials and a ministerial authorisation permitting discriminatory measures in immigration functions, the House concluded the scheme resulted in less favourable treatment of Roma on racial grounds contrary to section 1(1)(a) of the Race Relations Act 1976 and also incompatible with the United Kingdom's obligations under international human rights instruments and customary international law against racial discrimination.

The appellants were six Czech nationals of Romani origin and the European Roma Rights Centre, who sought judicial review of the lawful basis and operation of a "pre-clearance" scheme at Prague Airport (implemented from July 2001) under which British immigration officers interviewed passengers and granted or refused leave to enter the United Kingdom before departure. The Government's stated aim was to reduce asylum applications arriving in the United Kingdom from the Czech Republic. The appellants contended (i) that the procedure breached the United Kingdom's obligations under the 1951 Refugee Convention and customary international law (principles of non-refoulement and good faith), and (ii) that the operation amounted to unlawful racial discrimination against Roma in breach of the Race Relations Act 1976 and relevant international anti-discrimination instruments.

Procedural history: the application for judicial review was dismissed by Burton J ([2002] EWHC 1989 (Admin)); the Court of Appeal ([2003] EWCA Civ 666) rejected the Convention and customary-law challenge and (by majority) rejected the discrimination challenge; the case was then brought to the House of Lords by way of appeal.

The issues framed by the House were whether (1) the Refugee Convention (especially article 33) or customary international law imposed obligations that made the Prague pre-clearance scheme unlawful, and (2) the operation was unlawful racial discrimination in domestic law and contrary to international anti-discrimination obligations.

The House's reasoning on issue (1): the Convention's definition of "refugee" and its nondiscrimination and non-refoulement rules were construed as primarily concerned with persons who are outside their country of nationality and who are within or at the frontier of the receiving state. The court emphasised treaty interpretation in light of text, context and object and purpose (Vienna Convention on the Law of Treaties principles) and refused to read into the Convention an extraterritorial obligation to examine asylum claims before travel. State practice (e.g. visa regimes and carriers' liability) and judicial authority were considered to support the view that no general customary rule obligated states to admit or to examine asylum seekers outside their territory. The principle of good faith could not be used to import obligations beyond the treaty terms.

The House's reasoning on issue (2): factual material (statistics showing a very large refusal rate for Roma compared with non-Roma, internal instructions and a ministerial authorisation permitting differential treatment, and training materials) demonstrated a high risk of stereotyping and produced an inference of less favourable treatment of Roma "because they were Roma." Under domestic law (Race Relations Act 1976 as amended), public authorities must not discriminate in carrying out their functions; there is only a limited statutory exemption which did not justify the Prague operation in practice. The House therefore allowed the appeal on the discrimination ground and made a declaratory order that the Prague operation discriminated against Roma in breach of section 1(1)(a) of the Race Relations Act 1976, and observed that the conduct was incompatible with the United Kingdom's obligations under international anti-discrimination instruments and customary international law.

Appeal allowed in part. The House dismissed the challenge that the Prague pre-clearance procedure breached the 1951 Refugee Convention or created a binding rule of customary international law requiring extraterritorial adjudication of asylum claims: the Convention applies to persons outside their country of nationality who are within or at the frontier of the receiving state and does not impose a general obligation to admit prospective asylum seekers. However, the House allowed the appeal on the discrimination ground, holding that the operation was inherently and systemically discriminatory in practice against Roma and thus unlawful under the Race Relations Act 1976 and inconsistent with international anti-discrimination obligations.

First instance: Judicial review dismissed by Burton J ([2002] EWHC 1989 (Admin)). Court of Appeal: appeal dismissed on Convention issue and (by majority) on discrimination issue ([2003] EWCA Civ 666, reported [2004] QB 811). House of Lords: allowed in part on discrimination grounds, dismissed on Convention/customary law grounds ([2004] UKHL 55).