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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> European Roma Rights Centre & Ors, R (on the application of) v Immigration Officer at Prague Airport & Anor [2004] UKHL 55 (9 December 2004) URL: http://www.bailii.org/uk/cases/UKHL/2004/55.html Cite as: [2005] 1 All ER 527, [2005] 2 AC 1, [2005] IRLR 115, [2004] UKHL 55 |
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Judgments - Regina v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
HOUSE OF LORDS
SESSION 2003-04
[2004] UKHL 55
on appeal from: [2003] EWCA Civ 666
OPINIONS
Regina
Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants)
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
LORD BINGHAM OF CORNHILL
My Lords,
Background
Domestic immigration legislation
"(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
"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 international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner,…..".
Under article 1A(2), the term "refugee" applies to any person who
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
For present purposes the most relevant articles of the Convention are articles 31, 32 and 33:
"Article 31. Refugees unlawfully in the country of refuge
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Article 32. Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Article 33. Prohibition of expulsion or return ('refoulement')
1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."
"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmnd 3906). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments …"
Despite this somewhat informal mode of incorporation Lord Keith of Kinkel, in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990, observed that the provisions of the Convention and Protocol had for all practical purposes been incorporated into United Kingdom law. But in 1993 steps were taken to strengthen the mode of incorporation by providing in primary legislation, in section 2 of the Asylum and Immigration Appeals Act 1993, headed "Primacy of Convention", that
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention" [defined to mean the 1951 Convention and the Protocol]."
Plainly the Rules cannot provide for asylum applications to be handled less favourably to the applicant than the Convention requires.
"Definition of asylum applicant
327. Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.
Applications for asylum
328. All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.
329. Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate under section 11 or section 12 of the Immigration and Asylum Act 1999, no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom.
330. If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter.
Grant of Asylum
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the Convention and Protocol; and
(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
335. If the Secretary of State decides to grant asylum to a person who has been given leave to enter (whether or not the leave has expired) or to a person who has entered without leave, the Secretary of State will vary the existing leave or grant limited leave to remain.
Refusal of asylum
336. An application which does not meet the criteria set out in paragraph 334 will be refused."
The course of proceedings
The Convention and international law issue
"I conceive the King had an absolute power to forbid foreigners, whether merchants or others, from coming within his dominions, both in times of war and in times of peace, according to his royal will and pleasure; and therefore gave safe-conducts to merchants strangers, to come in, at all ages, and at his pleasure commanded them out again."
But the crown's prerogative power over aliens was increasingly questioned, and since 1793 the power to exclude aliens has in this country been authorised by statute, whether temporary in effect (33 George III c.4; 56 George III c.86; 11 & 12 Victoria c.20) or permanent (for example, the Aliens Act 1905, the Aliens Restriction Act 1914).
"One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests: Vattel, Law of Nations, book 1, s 231; book 2, s 125."
In Johnstone v Pedlar [1921] 2 AC 262, 283, Lord Atkinson said:
"Aliens, whether friendly or enemy, can be lawfully prevented from entering this country and can be expelled from it …"
More recently, in T v Secretary of State for the Home Department [1996] AC 742, 754, Lord Mustill said:
"although it is easy to assume that the appellant invokes a 'right of asylum', no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries."
Over time there came to be recognised a right in sovereign states to give refuge to aliens fleeing from foreign persecution and to refuse to surrender such persons to the authorities of their home states: Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55, (2000) 204 CLR 1, paras 137-138; P Weis, "The United Nations Declaration on Territorial Asylum" (1969) CYIL 92, 95. But these rights were not matched by recognition in domestic law of any right in the alien to require admission to the receiving state or by any common law duty in the receiving state to give it.
"Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who have been authorized to reside there regularly, unless the said measures are dictated by reasons of national security or public order.
It undertakes in any case not to refuse entry to refugees at the frontiers of their countries of origin …"
This language might be understood to oblige contracting states to admit refugees coming to seek asylum, but in the opinion of a respected commentator the word refouler in the authoritative French text was not used to mean "refuse entry" but "return" "reconduct" or "send back", and the provision did not refer to the admission of refugees but only to the treatment of refugees who were already in a contracting state: A Grahl-Madsen, The Status of Refugees in International Law (1972), vol II, para 179(i). Further international conventions and arrangements were made in 1935, 1938, 1939 and 1946.
"Everyone has the right to seek and to enjoy in other countries asylum from persecution."
Those who drafted this provision rejected a proposal that a right to asylum should be granted, and Professor Hersch Lauterpacht described the formula adopted as "artificial to the point of flippancy": "The Universal Declaration of Human Rights" (1948) 25 BYIL 354, 373-374. See also F Morgenstern, "The Right of Asylum" (1949) 26 BYIL 327, 336-337; Grahl-Madsen, op cit, para 179 (ii).
"It is a general requirement for refugee status that an applicant who has a nationality be outside the country of his nationality. There are no exceptions to this rule. International protection cannot come into play as long as a person is within the territorial jurisdiction of his home country."
"Article 33 concerns refugees who have gained entry into the territory of a Contracting State, legally or illegally, but not to refugees who seek entrance into this territory. In other words, Article 33 lays down the principle that once a refugee has gained asylum (legally or illegally) from persecution, he cannot be deprived of it by ordering him to leave for, or forcibly returning him to, the place where he was threatened with persecution, or by sending him to another place where that threat exists, but that no Contracting State is prevented from refusing entry in this territory to refugees at the frontier. In other words, if a refugee has succeeded in eluding the frontier guards, he is safe; if he has not, it is his hard luck."
This opinion was endorsed by Weis (op cit, pp 123-124) and Grahl-Madsen (op cit, p.94). It was upheld by a majority of the United States Supreme Court in Sale, Acting Comr, Immigration and Naturalisation Service v Haitian Centers Council Inc 509 US 155 (1993), p183, fn 40. It has been upheld by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Ibrahim, above, para 136, and Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14, (2002) 210 CLR 1, para 42. In the last passage cited, McHugh and Gummow JJ said:
"Rather, the protection obligations imposed by the Convention upon Contracting States concern the status and civil rights to be afforded to refugees who are within Contracting States."
The House was referred to no judicial authority to contrary effect. It has had the benefit of expert and authoritative commentary on the negotiations which culminated in the 1951 Convention, a legitimate guide to interpretation if the effect of a provision is in doubt and the travaux préparatoires yield a clear and authoritative answer: see article 32 of the Vienna Convention on the Law of Treaties. Those conditions are, in my opinion, met in this case when the scope of article 33 of the Convention falls to be considered. As appears from Weis, The Refugee Convention 1951 (Cambridge, 1995, pp 328, 334, 335) and "The UN Declaration on Territorial Asylum" (1969) CYIL 92, 124, "expel" was understood to apply to a refugee who had already been admitted to the territory of a country. There was more doubt about the meaning of "refouler". It was however understood that the expression should have the same meaning as "return", applicable to refugees who had already entered a country but were not yet resident there. The potential ambiguity was resolved by agreement that the French word refoulement (refouler in verbal use) should be included in brackets and between inverted commas after the English word "return" wherever the latter appeared in the text. In 1967 the United Nations adopted a Declaration on Territorial Asylum which provided, in article 3, that no person entitled to invoke article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier, but a conference held in 1977 to embody this and other provisions in a revised convention ended in failure. As Gummow J put it in Ibrahim (2000) 204 CLR 1, para 142, in his judgment given in October 2000,
"there have been attempts which it is unnecessary to recount here to broaden the scope of the Convention itself by a Draft United Nations Convention on Territorial Asylum but these collapsed more than twenty years ago."
"it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree,"
and caution is needed
"if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept."
"States the world over consistently have exhibited great reluctance to give up their sovereign right to decide which persons will, and which will not, be admitted to their territory, and given a right to settle there. They have refused to agree to international instruments which would impose on them duties to make grants of asylum.
Today, the generally accepted position would appear to be as follows: States consistently refuse to accept binding obligations to grant to persons, not their nationals, any rights to asylum in the sense of a permanent right to settle. Apart from any limitations which might be imposed by specific treaties, States have been adamant in maintaining that the question of whether or not a right of entry should be afforded to an individual, or to a group of individuals, is something which falls to each nation to resolve for itself."
While a state party must show good faith in interpreting and performing a treaty obligation, the International Court of Justice made plain in In re Border and Transborder Armed Actions (Nicaragua v Honduras) [1988] ICJ Rep 69, para 94, and repeated in In re Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) [1998] ICJ Rep 275, para 39, that
"The principle of good faith is, as the Court has observed, 'one of the basic principles governing the creation and performance of legal obligations' …; it is not in itself a source of obligation where none would otherwise exist."
"35. … It would be inconceivable, in the opinion of the Court, that Article 6(1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.
36. Taking all the preceding considerations together, it follows that the right of access constitutes an element which is inherent in the right stated by Article 6(1). This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6(1) read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty (see the Wemhoff judgment of 27 June 1968, Series A no. 7, p.23, para. 8), and to general principles of law.
The Court thus reaches the conclusion, without needing to resort to 'supplementary means of interpretation' as envisaged at Article 32 of the Vienna Convention, that Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the article embodies the 'right to a court', of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only."
The analogical argument based on Golder is to the following effect: had the appellants not been effectively prevented by the UK authorities from travelling to this country, they could have done so and could on arrival have applied for asylum; that application would then have been assessed and, if the requisite grounds were established, granted; the British authorities' conduct in preventing the appellants travelling to the UK and failing to evaluate their asylum applications in Prague should not prejudice the appellants. There are, in my opinion, several reasons why this argument cannot prevail. In the first place, the Court's judgment in Golder was in large measure based on a detailed analysis of the French text of the European Convention and on the Court's interpretation of that Convention as a whole. But there are more fundamental objections. Nothing in Mr Golder's claim was inconsistent with any provision of article 6 or any other article of the European Convention, indeed the right claimed was held to be inherent in article 6. By contrast, the appellants' claim is inconsistent with the text of the Refugee Convention since it puts those expressly excluded from the protection of the Convention in the same position as those expressly included. It is a further point of distinction that Mr Golder on any showing had a right under article 6; the argument was as to the scope of that right. By contrast, the appellants had no right save such as might be correlative with the obligations undertaken by the United Kingdom in the 1951 Convention; but such obligations were dependent on the appellants being outside the state of their nationality, which they never were.
"67. In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the Convention."
Its conclusions, so far as relevant for present purposes, were expressed in paras 71 and 73:
"71. In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government."
"73. Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state."
I have the very greatest doubt whether the functions performed by the immigration officers at Prague, even though they were formally treated as consular officials, could possibly be said to be an exercise of jurisdiction in any relevant sense over non-UK nationals such as the appellants. But even if this be assumed in the appellants' favour (as, on different facts, the Court of Appeal was content to assume in R(B) v Secretary of State for the Foreign and Commonwealth Office [2004] EWCA Civ 1344, 18 October 2004, para 66), the agreed facts summarised in para 3 above do not disclose any threat to life such as might engage article 2 of the European Convention or any risk of torture or inhuman or degrading treatment or punishment such as might engage article 3. The appellants were at all times free to travel to another country, or to travel to this country otherwise than by air from Prague. The appellants' position differs by an order of magnitude from that of the Haitians, whose plight was considered in Sale, above, and whose treatment by the United States authorities was understandably held by the Inter-American Commission of Human Rights (Report No 51/96, 13 March 1997, para 171) to breach their right to life, liberty and security of their persons as well as the right to asylum protected by article XXVII of the American Declaration of the Rights and Duties of Man, of which the Commission found the United States to be in breach in para 163. The Commission also found the United States to be in breach of article 33(1) of the Refugee Convention: paras 156-158. This was a view shared by Blackmun J in his dissent in Sale. The facts differ from the present case since the Haitians, although they never reached the United States, were certainly outside Haiti, the country of their nationality.
"70. The Court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is to the effect that even if there was at the date of the Geneva Convention [on the Continental Shelf, 1958] no rule of customary international law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State practice, - and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties' respective continental shelf areas in the North Sea.
71. In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained."
The relevant law was, I think, accurately and succinctly summarised by the American Law Institute in its Restatement of the Foreign Relations Law of the United States (Third) vol 1, 1986, para 102(2) and (3):
"(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted."
This was valuably supplemented by a comment to this effect:
"c. Opinio juris. For a practice of states to become a rule of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law. A practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that transformation into law has taken place. Explicit evidence of a sense of legal obligation (e.g., by official statements) is not necessary; opinio juris may be inferred from acts or omissions."
It is in my opinion clear, applying these principles, that even if the interpretation I have put on the Refugee Convention is accepted as correct, that is by no means the end of the appellants' international law argument. For the convention was made more than half a century ago. Since then the world has changed in very many ways. The existence of the Convention is no obstacle in principle to the development of an ancillary or supplementary body of law, more generous than the Convention in its application to those seeking asylum as refugees. That, essentially, is the argument advanced for the appellants.
"in the same spirit, ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution …"
In 1977 the UNHCR Executive Committee (in Conclusion No 6 (XXVIII) "Non-Refoulement" Report of the 28th Session: UN doc A/AC. 96/549, para 53.4) reaffirmed
"the fundamental importance of the observance of the principle of non-refoulement - both at the border and within the territory of a State of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees."
The same body reiterated in 1981 (Conclusion No 22 (XXXII, 1981, "Protection of Asylum-Seekers in Situations of Large-Scale Influx": Report of the 32nd Session: UN doc A/AC.96/601, para 57(2)) that
"In all cases the fundamental principle of non-refoulement including non-rejection at the frontier must be scrupulously observed."
In 1984 the Committee of Ministers of the Council of Europe (Recommendation No R(84)1) adopted Resolution (67)14 and considered that the principle of non-refoulement had been recognised as a general principle applicable to all persons. In the same year a colloquium held at Cartagena, Colombia, on the international protection of refugees in Central America, Mexico and Panama reiterated
"the importance and meaning of the principle of non-refoulement (including the prohibition of rejection at the frontier) as a corner-stone of the international protection of refugees. This principle is imperative in regard to refugees and in the present state of international law should be acknowledged and observed as a rule of jus cogens."
The states parties to the 1951 Convention met at Geneva in December 2001 and adopted a Declaration (doc HCR/MMSP/2001/09, 16 January 2002) in which they called for universal adherence to the Convention and acknowledged
"the continuing relevance and resilience of this international regime of rights and principles, including at its core the principle of non-refoulement, whose applicability is embedded in customary international law."
The International Law Association, meeting in New Delhi in April 2002, referred in Resolution 6/2002 to "the fundamental obligation of States not to return (refouler) a refugee in any manner whatsoever to a country in which his or her life or freedom may be threatened" and declared:
"1. Everyone seeking international protection as a refugee outside his or her country of origin and in accordance with the relevant international instruments should have access to a fair and effective procedure for the determination of his or her claim.
5. No one who seeks asylum at the border or in the territory of a State shall be rejected at the frontier, or expelled or returned in any manner whatsoever to any country in which he or she may be tortured or subjected to inhuman, cruel or degrading treatment or punishment, or in which his or her life or freedom may be endangered …"
Attention should lastly be drawn to General Comment No 31 ("The Nature of the General Legal Obligation Imposed on States Parties to [the International Covenant on Civil and Political Rights]") of the Human Rights Committee of the United Nations adopted on 29 March 2004:
"10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation."
The United Kingdom is a state party to the ICCPR but has not incorporated that Covenant (which contains no article specifically directed to asylum) into its domestic law.
"61. These principles will be particularly relevant to the determination of the application of the principle of non-refoulement in circumstances involving the actions of persons or bodies on behalf of a State or in exercise of governmental authority at points of embarkation, in transit, in international zones, etc. In principle, subject to the particular facts in issue, the prohibition on refoulement will therefore apply to circumstances in which organs of other States, private undertakings (such as carriers, agents responsible for checking documentation in transit, etc) or other persons act on behalf of a Contracting State or in exercise of the governmental activity of that State. An act of refoulement undertaken by, for example, a private air carrier or transit official acting pursuant to statutory authority will therefore engage the responsibility of the State concerned.
67. The reasoning in these cases supports the more general proposition that persons will come within the jurisdiction of a State in circumstances in which they can be said to be under the effective control of that State or are affected by those acting on behalf of the State more generally, wherever this occurs. It follows that the principle of non-refoulement will apply to the conduct of State officials or those acting on behalf of the State wherever this occurs, whether beyond the national territory of the State in question, at border posts or other points of entry, in international zones, at transit points, etc."
Plainly, these observations are supportive of the appellants' case.
"even if entire unanimity had existed in respect of the important particulars to which I have referred, in place of so much discrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage …"
In considering whether the rule contended for has received the assent of the nations, it is pertinent to recall that the states parties to the 1951 Convention have not, despite much international discussion, agreed to revise its terms or extend its scope at any time since 1967. None of the citations in para 24 above is from a legislative instrument. The House was referred to no judicial decision supporting the rule contended for and a number of recent decisions (Sale in the United States, Ibrahim and Khawar in Australia) are inimical to it. Have the states in practice observed such a rule? It seems to me clear that they have not.
"What, then, is it which is said to justify placing these burdens, and most notably ICLA, upon carriers? The answer is said to be the imperative needs of immigration control in the face of ever-growing pressures from around the world. This too is deposed to in great detail by the respondent and once again I shall simplify it. In 1986 there was a significant increase in the number of asylum seekers, in particular from the Indian subcontinent and West Africa. In the result the visa requirement was extended to India, Pakistan, Bangladesh, Ghana and Nigeria. ICLA was passed as a necessary adjunct of the visa regime and, more generally, to complement immigration control and facilitate procedures at the port of entry. As the then Home Secretary, Mr Douglas Hurd, made plain at the second reading of the Bill in March 1987, it was intended to 'make it much more difficult for those who want to come to this country, but who have no valid grounds for doing so … It is also intended to stop abuse of asylum procedures by preventing people travelling here without valid documents and then claiming asylum before they can be returned'.
The logical necessity for carriers' liability to support a visa regime is surely self-evident. Why require visas from certain countries (and in particular those from which most bogus asylum seekers are found to come) unless visa nationals can be prevented from reaching our shores? Their very arrival here otherwise entitles them to apply for asylum and thus defeats the visa regime. Without ICLA there would be little or no disincentive for carriers to bring them."
In an article published in 1998 ("United Kingdom: Breaches of Article 31 of the 1951 Refugee Convention" (1998) 10 Int J Refugee Law 205, 209-210), Richard Dunstan, formerly Refugee Officer, Amnesty International United Kingdom, graphically described the practice of some leading countries:
"There can be little doubt that this pattern of the criminal conviction and imprisonment of would-be asylum-seekers for their use of false travel documents is related to the imposition of financial penalties under 'carrier sanctions' legislation in both the United Kingdom and North America. In recent years, and in common with many other western countries, the United Kingdom, Canada and the United States have imposed visa regimes on nationals of practically all significant refugee-producing countries, in an apparent attempt to reduce the number of would-be asylum-seekers from such countries arriving at their borders. These visa regimes have then been enforced by the imposition of heavy financial penalties on those transport operators bringing passengers lacking a valid visa where one is required. For example, under the Immigration (Carriers' Liability) Act 1987, the United Kingdom authorities impose a financial penalty of £2,000 per passenger brought without either a valid passport or a valid visa where one is required. Introducing this legislation in March 1987, the then Home Secretary, Douglas Hurd, stated that 'the immediate spur to this proposal has been the arrival of over 800 people claiming asylum in the three months up to the end of February 1987'. Between May 1987 and October 1996, fines totalling £97.6 million were imposed on over 440 airlines and shipping companies. The United Kingdom authorities have also provided training, advice and technical support in respect of the detection of false travel documents to airline staff based at various points of embarkation. In September 1996, for example, the Ethiopian News Agency (ENA) reported that the British Ambassador in Addis Ababa had recently donated forgery detection equipment to the Ethiopian Immigration Service; the same ENA report quoted the Ambassador as saying that a number of British immigration officers had spent two weeks in Addis Ababa in October 1995, training both Ethiopian immigration officers and Ethiopian Airline staff in the 'detection of forged documents and British visa and passport requirements'.
Similarly, in the United States a financial penalty of US$3,000 per improperly-documented passenger may be imposed under section 273 of the Immigration and Nationality Act 1952, the penalty having been increased from US$1,000 in 1990. And in Canada a financial penalty of up to CAN$3,200 per improperly-documented passenger may be imposed under the Immigration Act 1976, as amended. As long ago as 1986, a total of 541 airlines were each fined CAN$1,000 by the Canadian authorities for not demonstrating sufficient vigilance in their checking of passengers' travel documents …"
A study conducted for the European Council on Refugees and Exiles, published in February 1999, showed that all states parties to the Schengen Convention, plus Norway and Iceland, who had concluded a parallel convention, had introduced a system of carriers' liability. Of 17 Western European countries only Ireland and Switzerland, at that time, had not. There was no evidence before the House to show the effect on prospective applicants for asylum of foreign countries' visa and carriers' liability regimes, but there is no reason to suppose that their effect is any different from our own. The evidence in the present case states that
"But for the existence of the new pre-clearance powers under the 2000 Order, [the Home Secretary] may well have felt constrained to promote the introduction [of] a visa regime in respect of the Czech Republic, as has occurred (for example) with other countries that have generated large numbers of asylum applications."
Had a visa regime been imposed, the effect on the appellants, so far as concerned their applications for asylum, would have been no different. But it could not plausibly be argued that a visa regime would have been contrary to the practice of the nations. That conclusion must in my opinion apply also to the pre-clearance procedure which the appellants challenge. This makes it unnecessary to address the first submission recorded in para 22 above on the extent to which and the manner in which international law is or may become part of the common law.
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
This is an important and valuable principle. But it has no application to the present case, since the appellants enjoyed no right which, on any construction, Parliament had legislated to infringe or curtail.
LORD STEYN
My Lords,
"The fact that a passenger belongs to one of these ethnic or national groups will be sufficient to justify discrimination - without reference to additional statistical or intelligence information - if an immigration officer considers such discrimination is warranted."
The immigration officers would have read this document in the light of a formal authorisation by the Secretary of State under section 19D of the Race Relations Act 1976. That authorisation purported to confer on immigration officers the express power to discriminate by reason of a person's ethnic origin against Roma. It is true that the Secretary of State does not rely on the authorisation. But it would have been known to immigration officers sent to Prague. Counsel for the Secretary of State argued that the authorisation was not in law an instruction. I would accept that. But the documents nevertheless reveal how immigration officers would have understood their principal task.
"because of the greater degree of scepticism with which Roma applicants will inevitably be treated, they are more likely to be refused leave to enter than non-Roma applicants. But this is because they are less well placed to persuade the immigration office that they are not lying in order to seek asylum. That is not to say, however, that they are being stereotyped. Rather it is to acknowledge the undoubtedly disadvantaged position of many Roma in the Czech Republic. Of course it would be wrong in any individual case to assume that the Roma applicant is lying, but I decline to hold that the immigration officer cannot properly be warier of that possibility in a Roma's case than in the case of a non -Roma applicant. If a terrorist outrage were committed on our streets today, would the police not be entitled to question more suspiciously those in the vicinity appearing to come from an Islamic background?"
Mantell LJ agreed with this analysis. Laws LJ dissented. In "Equality: The Neglected Virtue" [2004] EHRLR 142, Mr Rabinder Singh QC convincingly exposed the flaw in the reasoning of the majority. He stated (at p154):
"It is clear that there was less favourable treatment. It is also clear that it was on racial grounds. As all the judges acknowledged, the reason for the discrimination is immaterial: in particular, the absence of a hostile intent or the presence of a benign motive is immaterial. What the majority view amounts to is, on analysis, an attempt to introduce into the law of direct discrimination the possibility of justification. But Parliament could have provided for that possibility - as it has done in the context of allegations of indirect discrimination - and has chosen not to do so. In so far as the fields of immigration and nationality may be thought to require special treatment, permitting discrimination on certain grounds (ethnic or national origins) but not others (such as colour), again Parliament has catered for that possibility in enabling a minister to give an authorisation. The Government did not want to rely on the authorisation in the Roma case: that was a matter for its tactical choice but the courts should not bend over backwards to save the executive from what may have been its own folly. Their duty, as Laws LJ said, is to apply the will of Parliament as enacted in its laws. Moreover, the danger in the majority's reasoning is that it is capable of application outside the limited areas with which the Court was concerned. For example, it could be applied in the context of police stop and search powers. Simon Brown LJ expressly gives an example from just that context. This is potentially very damaging to race relations law going beyond what may have been perceived to be the problem in the Roma case itself."
I am in respectful agreement with this analysis. In my view the majority was wrong. Laws LJ was right.
"The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin."
Before I consider the reach of article 3, it is important to bear in mind the status of the Refugee Convention in United Kingdom in law. It is not a mere unincorporated treaty. Under rule 16 of the Statement of Changes in Immigration Rules (1983) (HC 169) it was formerly provided:
"Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmnd 3906). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments . . ."
In R v Secretary of State for the Home Department, Ex p Singh, The Times, June 8, 1987, the Divisional Court held that the Refugee Convention had "indirectly" been incorporated under English law. Later in the same year in R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958, 990 Lord Keith of Kinkel observed that "The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law." Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with the opinion of Lord Keith. The difficulty is, however, that Immigration Rules are not law but merely instructions to immigration officers. By themselves they cannot effect an incorporation.
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."
It is necessarily implicit in section 2 that no administrative practice or procedure may be adopted which would be contrary to the Convention. After all, it would be bizarre to provide that formal immigration rules must be consistent with the Convention but that informally adopted practices need not be consistent with the Convention. The reach of section 2 of the 1993 Act is therefore comprehensive.
"Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organisation, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,
Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,
Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discriminate . . .
Article 2 provides:
"1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any person . . ."
On 4 January 1969 this Convention entered into force. To date 169 states have become parties to it. On 6 April 1969 the United Kingdom ratified this treaty. The operation at Prague Airport placed the United Kingdom in breach of this international obligation.
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
On 23 March 1976 this Convention entered into force. To date 152 states have become parties. On 20 August 1976 the United Kingdom ratified this treaty. The United Kingdom purported to exercise governmental authority at Prague Airport. The operation carried out at Prague placed the United Kingdom in breach of the International Covenant.
LORD HOPE OF CRAIGHEAD
My Lords,
Rule 320 of the Immigration Rules
"320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2 - 8 of these Rules … the following grounds for the refusal of entry clearance or leave to enter apply:
Grounds upon which entry clearance or leave to enter the United Kingdom is to be refused
(1) the fact that entry is being sought for a purpose not covered by these Rules;
…
Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
….
327. Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under the [1951 Convention] for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.
328. All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the [1951 Convention]. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that: (i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and (ii) he is a refugee, as defined by [the 1951 Convention]; and (iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of [the 1951 Convention], to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
336. An application which does not meet the criteria set out in paragraph 334 will be refused."
Good faith as a source of law
"The essence of the doctrine is that although a State may have a strict right to act in a particular way, it must not exercise this right in such a manner as to constitute an abuse of it; it must exercise its rights in good faith and with a sense of responsibility; it must have bona fide reasons for what it does, and not act arbitrarily or capriciously."
The preamble to the Vienna Convention notes that "the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised." In In re Nuclear Tests (Australia v France) [1974] ICJ Rep 253, 268, para 46, the International Court of Justice stated that good faith is one of the basic principles governing the creation and performance of legal obligations, whatever their source. It has been said that good faith presents itself as an absolutely necessary ingredient to the operation of the whole international legal order: Michel Virally, "Review Essay: Good Faith in Public International Law" (1983) 77 AJIL 130, 133.
The Sale case: refoulement
"Even if we believed that Executive Order 12807 violated the intent of some signatory states to protect all aliens, wherever they might be found, from being transported to potential oppressors, we must acknowledge that other signatory states carefully - and successfully - sought to avoid just that implication. The negotiating history, which suggests that the Convention's limited reach resulted from a deliberate bargain, is not dispositive, but it solidly supports our reluctance to interpret article 33 to impose obligations on the contracting parties that are broader than the text commands. We do not read that text to apply to aliens interdicted on the high seas."
"For present purposes I propose to regard the Sale case as wrongly decided; it certainly offends one's sense of fairness."
"The drafters of the Convention and the parties t