Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)

Direct racial discrimination arises from less favourable treatment on racial grounds where relevant circumstances are the same or not materially different. Motive is irrelevant, and direct discrimination has no general justification defence. A decision-maker must treat each person as an individual and cannot apply a racial stereotype, even where it is often accurate.

An operation aimed at conduct overwhelmingly associated with an identifiable ethnic group requires particular care. Its design, instructions, statistical outcomes and operation may support an inference of inherent and systemic discrimination unless the authority gives a satisfactory race-neutral explanation.

The Refugee Convention protects persons outside their country of nationality. It does not require a state to admit persons who remain within that country so that they may travel to claim asylum.

British immigration officers stationed at Prague Airport pre-cleared passengers travelling to the United Kingdom. The operation sought to reduce asylum claims by Czech nationals, most of whom were Roma. Six Roma were refused leave to enter before departure, and the European Roma Rights Centre joined them in challenging the scheme.

Burton J dismissed the application for judicial review: [2002] EWHC 1989 (Admin). The Court of Appeal unanimously rejected the Refugee Convention and customary non-refoulement arguments. By a majority it also rejected the racial discrimination challenge, Laws LJ dissenting: [2003] EWCA Civ 666, [2004] QB 811.

The House considered whether the pre-clearance procedure contravened the Refugee Convention, customary international law or the Immigration Rules, and whether Roma passengers were subjected to unlawful direct racial discrimination under the Race Relations Act 1976.

1. Disposition. The House unanimously allowed the appeal and declared that United Kingdom immigration officers at Prague Airport had treated Roma seeking to travel to the United Kingdom less favourably on racial grounds than other travellers, contrary to section 1(1)(a) of the Race Relations Act 1976. Baroness Hale gave the leading reasons on discrimination. Lord Bingham, Lord Hope and Lord Carswell agreed with her conclusion and the declaration; Lord Steyn reached the same conclusion.
2. Direct discrimination. Per Baroness Hale, direct discrimination requires less favourable treatment than that given to an actual or hypothetical person of another racial group whose relevant circumstances are the same or not materially different, with the difference occurring on racial grounds. Once such treatment is shown, an unexplained or inadequately explained difference may support an inference of discrimination. Motive is irrelevant, and direct discrimination has no general justification defence. Treating a person according to a racial stereotype is prohibited even when the generalisation is frequently accurate.
3. Application to the Prague operation. Per Baroness Hale, the operation created a high risk of discrimination because it targeted potential asylum seekers, who were overwhelmingly Roma, while recent official material authorised differential treatment of Roma in other immigration contexts. The officers received no adequate countervailing instructions, and the authorities kept no ethnic monitoring records. The evidence showed longer and more intrusive questioning of Roma, secondary interviews at a vastly higher rate, and a refusal rate about 400 times that for non-Roma. No satisfactory race-neutral explanation was provided. The operation was therefore inherently and systemically discriminatory. Lord Carswell agreed at least on the narrower basis that Roma suffered discriminatory differences in the length and method of questioning.
4. Refugee protection. Lord Bingham gave the leading reasons, with Lord Hope, Baroness Hale and Lord Carswell agreeing. The Refugee Convention applies to a person outside the country of nationality and principally regulates the treatment of refugees within a receiving state. Article 33 did not oblige the United Kingdom to allow persons still in the Czech Republic to travel so that they could claim asylum. A generous and purposive interpretation cannot add obligations which states did not accept. Good faith governs interpretation and performance but creates no otherwise absent obligation. State practice did not establish the wider customary rule contended for.
5. Immigration Rules. Lord Bingham and Lord Hope held that seeking asylum was not a purpose for which the Rules required leave to enter. Rule 320 therefore did not prevent refusal before travel. The principle of legality did not apply because no underlying right of admission had been infringed.

1. House of Lords: The appeal was allowed unanimously. The House reversed the Court of Appeal on racial discrimination and granted a general declaration, while rejecting the Refugee Convention, customary non-refoulement and Immigration Rules grounds: [2004] UKHL 55.
2. Court of Appeal: The court unanimously rejected the Convention and international law challenge. Simon Brown and Mantell LJJ rejected the discrimination ground; Laws LJ dissented on that issue: [2003] EWCA Civ 666, [2004] QB 811.
3. High Court, Administrative Court: Burton J rejected both grounds and dismissed the application for judicial review: [2002] EWHC 1989 (Admin).