COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION - ADMINISTRATIVE COURT)
(Mr Justice Burton)
London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal Civil Division)
LORD JUSTICE MANTELL
LORD JUSTICE LAWS
| EUROPEAN ROMA RIGHTS CENTRE & OTHERS
|- and -
|THE IMMIGRATION OFFICER AT PRAGUE AIRPORT
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|THE UNITED NATIONS' HIGH COMMISSIONER FOR REFUGEES
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John Howell Esq QC, Michael Fordham Esq & Ms Clare Weir
(instructed by The Treasury Solicitor) for the Respondents
Guy Goodwin-Gill Esq (instructed by Messrs S J Berwin) for the Intervener
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Simon Brown:
"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 [the Geneva 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 [Geneva 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.
329. Until an asylum application has been determined by the Secretary of State or the Secretary of State has issued a certificate … 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.
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 [Geneva 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 [Geneva 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."
"3A(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 s(1) may, in particular, provide for -
(a) leave to be given or refused before the person concerned arrives in the United Kingdom …"
"(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 any examination under … the Act."
"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. …"
"Asylum applications received in the United Kingdom from nationals of the Czech Republic, excluding dependants, had reached some 515 per annum in the year 1998. By 2000 it had reached 1200 per annum. Of the 1800 asylum decisions made in 2000 (which will have included applications made previously) there were 10 decisions by the Secretary of State granting asylum. A further 10 cases were granted exceptional leave to remain outside the asylum rules. The success rate of asylum appeals by Czech nationals was, at the beginning of 2001, only around 6%."
"[T]here are approximately 300,000 members of the Roma ethnic group, i.e. about 3% of the country's population … Roma may face discrimination from elements within Czech society in employment, education, housing and access to services … Sporadic acts of violence by 'skinheads' against members of the Roma minority have continued to occur … [D]iscrimination and harassment experienced by Roma will, in most cases, not amount to persecution within the terms of the Convention. The threshold may however be passed in individual cases."
"… daily human rights abuse [of Roma] often motivated by, linked with or exacerbated by extreme levels of discrimination, notably in the fields of education, housing, employment and the provision of health and social services, as well as in the administration of justice, … high levels of racially-motivated violence including racially-motivated violent acts by neo-Nazi skinheads, members of the wider public and even members of law enforcement agencies"
The Convention Challenge
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."
" For the purposes of the present Convention, the term 'refugee' shall apply to any person who … (2) … 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 …, is unable, or owing to such fear, is unwilling, to return to it."
"(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."
"26. Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
31(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty and their context and in the light of its object and purpose."
"Everyone has the right to seek and to enjoy in other countries asylum from persecution."
"Everyone shall be free to leave any country, including his own."
"A good faith obligation, interpreted in the light of the object and purpose of the Convention, must include an obligation, not necessarily to facilitate an asylum seeker to leave his own country and/or to reach one's border, but not to take steps to prevent him from doing so (at least unless the refugee is already in a safe third country).
Thus, it is submitted, where, as here, such state is in practice extending its frontier out to Prague, it must not turn away an intending asylum seeker albeit that that person is not (yet) a refugee."
"4. We acknowledge that the primary questions in this legal action do not turn on the text of the [Geneva] Convention. Rather, they turn on understanding the international protection regime as a complex of international practice and precepts drawn from refugee law, human rights law and general principles of international law. The [Geneva] Convention is the cornerstone of this complex. Where, as in the present case, issues arise that strictly do not fall within the Convention's textual scope, its objectives and purposes should act as a reliable guide. UNHCR's reservations to the pre-screening procedures are best understood in this light.
8. The [Geneva] Convention's objects and purposes are important in ensuring that States' approach to illegal migration is consistent with their Convention obligations. UNHCR acknowledges that States have a legitimate interest in controlling illegal migration. Such controls should not, however, be introduced in a manner which makes it difficult or impossible for refugees to access international protection. The pre-clearance procedures at Prague Airport have precisely the effect of preventing persons from boarding a flight to the UK when they express an intent to seek asylum. This means that persons at risk of persecution will be prevented from gaining access to international protection.
9. The international refugee protection regime would be significantly jeopardised if States which have agreed to provide protection for refugees were free to cut off all reasonable modalities of access to its territory for refugees [the letter should perhaps say 'potential refugees'] in the name of migration control.
13. Although the decision to grant asylum to a particular refugee remains the prerogative of the State, there is an implicit responsibility on States to refrain from preventing asylum seekers from finding safety or from obtaining access to asylum procedures. Without such an implied responsibility the right to seek asylum might be rendered illusory.
14. It should be noted that denial of access to asylum procedures carries with it a significant amount of risk to the safety of the individual. Clearly the potential risks are heightened where – as is the case with the procedures at Prague Airport – access to procedures is denied in co-operation with the very country from which international protection is sought."
i) The pre-entry clearance practice as operated is contrary to international law and the international obligations accepted by the UK both under treaty and under customary international law.
ii) The practice frustrates the object and purpose of the 1951 Convention contrary to the international legal principle of good faith.
iii) It constitutes a revision of a multilateral treaty (increasing the burden on others), implemented without reference to the other parties.
iv) It is incompatible with the UK's other obligations under international law, including the obligation to exercise rights in good faith. It renders the 1951 Convention nugatory and prevents provisions such as article 31 or 33 ever being engaged.
v) Given that the practice of pre-clearance "extends" the UK's frontiers beyond the territory of the UK, the UK's international legal responsibilities go with it.
vi) A state lacks good faith in the application of a treaty, not only when it openly refuses to implement its undertakings, but equally when it seeks to avoid or to "divert" the obligation which it has accepted or to do indirectly that which it is not permitted to do directly.
"It may be thought that the conclusion that the action of returning those already refugees to their country of origin was not in contravention of the Convention is a fortiori to the question as to whether any obligation is owed to those who are still in their country of origin and not yet refugees."
"The so-called right of asylum is not a right possessed by the alien to demand that the state into whose territory he has entered should grant protection and asylum. For such state need not grant such demands. The constitutions of a number of countries expressly grant the right of asylum to persons persecuted for political reasons, but it cannot be said that such a right has become a 'general principle of law' recognised by civilised states and as such forming part of international law. Neither is any such right conferred by Art 14 of the Universal Declaration of Human Rights …. The Declaration, which in any case is not a legally binding instrument, does not confer a right to receive asylum …"
"The first element of Convention refugee status is that the claimant must be outside his country of origin. There is nothing intuitively obvious about this requirement: many if not most of the persons forced to flee their homes in search of safety remain within the boundaries of their state. Their plight may be every bit as serious as that of individuals who cross borders, yet the Convention definition of refugee status excludes internal refugees from the scope of global protection." (Hathaway, p29)
"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" (UNHCR Handbook, paragraph 88)
Such an approach is supported also by the authorities, domestic and foreign. I shall content myself with brief citations only.
"[A]lthough 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." (p754B)
"The [domestic] legislation must be viewed against the background of a complete absence of any common law right, either national or international, for a refugee to insist on being admitted to a foreign country." (p758H)
"A person who satisfies [the Convention] definition is said to have refugee status. The rest of the Convention imposes on the contracting states certain obligations towards persons having refugee status. For the purposes of immigration control, the most important are contained in articles 31 and 33. … [Article 31 forbids the imposition of penalties on refugees arriving in another country without authorisation - unlike article 33, it is derogable under article 42]. Refugee status is thus far from being an international passport which entitles the bearer to demand entry without let or hindrance into the territory of any contracting state. It is always a status relative to a particular country or countries. And the only obligations of contracting states are, first, not to punish a refugee who has entered directly from the country in which his life or freedom was threatened for a Convention reason and secondly, not to return him across the frontier of that country. In all other questions of immigration control: for example, punishment for illegal entry from a third country, or expulsion to a third country from which there is no danger of refoulement to a country falling within article 33, the question of whether a person has refugee status is simply irrelevant."
"The scope of the Convention
136. The remaining issues also turn on the meaning to be given to the Convention definition, but they involve more fundamental considerations respecting the scope and purpose of the Convention itself. The provisions of the Convention 'assume a situation in which refugees, possibly by irregular means, have somehow managed to arrive at or in the territory of the contracting state'. …
137. First, it has long been recognised that, according to customary international law, the right of asylum is a right of States, not of the individual; no individual, including those seeking asylum, may assert a right to enter the territory of a state in which that individual is not a national. …
138. Secondly, as Professor Sir Hersch Lauterpacht pointed out at the time, the Universal Declaration of Human Rights adopted in 1948, that is to say, shortly before the formation of the Convention, was accompanied by a general repudiation by member States of the idea that the Declaration imposed upon them a legal obligation to respect the human rights and fundamental freedoms which it proclaimed. Article 14 declared that '[e]veryone has the right to seek and to enjoy in other countries asylum from persecution'. But this right 'to seek' asylum was not accompanied by any assurance that the quest would be successful. A deliberate choice was made not to make a significant innovation in international law which would have amounted to a limitation upon the absolute right of member States to regulate immigration by conferring privileges upon individuals. Over the last 50 years, other provisions of the Declaration have, as Professor Brownlie puts it, come to 'constitute general principles of law or [to] represent elementary considerations of humanity' and have been invoked by the European Court of Human Rights and the International Court of Justice. But it is not suggested that Art 14 goes beyond its calculated limitation. Nor was the matter taken any further by the International Covenant on Civil and Political Rights ('the ICCPR'). This entered into force for Australia on 13 November 1980. Article 12 of the ICCPR stipulates freedom to leave any country and forbids arbitrary deprivation of the right to enter one's own country; but the ICCPR does not provide for any right of entry to seek asylum and the omission was deliberate."
"[A]lthough the principle of good faith is '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' …"
"In that respect, the Convention, like many international and municipal instruments, does not necessarily pursue its primary purpose at all costs. The purpose of an instrument may instead by pursued in a limited way, reflecting the accommodation of the differing viewpoints, the desire for limited achievement of objectives, or the constraints imposed by limited resources. … It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them."
The alleged breach of the Rules
"(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it."
"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
"19B(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination."
"19D(1) S19(B) does not make it unlawful for a relevant person to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration and nationality functions.
(2) For the purposes of subsection (1), 'relevant person' means –
(a) a Minister of the Crown acting personally; or
(b) any other person acting in accordance with a relevant authorisation."
"27(1A) In its application in relation to granting entry clearance (within the meaning of the Immigration Act 1971) section 19B applies in relation to acts done outside the United Kingdom, as well as those done within Great Britain."
"2 Where a person falls within a category listed in the Schedule and is liable to be examined by an immigration officer under paragraph 2 of Schedule 2 to the Immigration Act 1971 the immigration officer may, by reason of that person's ethnic or national origin-
(a) subject the person to a more rigorous examination than other persons in the same circumstances; …"
"Where a person falls within a category listed in the Schedule and is outside the United Kingdom but wishes to travel to the United Kingdom, an immigration officer or, as the case may be, the Secretary of State may, by reason of that person's ethnic or national origin –
(a) decline to give or refuse the person leave to enter before he arrives in the United Kingdom …"
The Schedule there referred to contains a list of persons of seven ethnic or national origins including "(b) Roma".
"a) Longer and more intrusive questioning in the case of Roma than non-Roma, and the treatment of the former with greater suspicion and a requirement for a higher standard of proof.
b) In the event the decision-making was such that Roma were refused while comparable non-Roma were not."
In those respects it was said that the defendants in operating the pre-clearance scheme have treated Roma less favourably than non-Roma. The appellants relied not least on some striking figures compiled between late January and late April 2002 based on observations made by a Czech Roma citizen working as a consultant for ERRC which were accepted for the purposes of the argument below. These showed that, during that three month period, out of 6,170 passengers recorded as Czech nationals but not Roma, only 14 (0.2%) were refused entry while, of 78 who were apparently Roma (Roma being for the most part visually identifiable) 68 (87%) were refused. The case below rested in part on those statistics, in part on the very existence of the authorisation even though the respondents asserted that it had in no way influenced the approach to the Prague operation, and in part on evidence as to what had in fact occurred in relation to the six claimants and to five other people who were not claimants. Two of the non-claimants (one Czech Roma, Mr Samko; one Czech non-Roma, Ms Novakova) were journalists whose applications were the subject matter of a Czech TV programme. Three (two Czech Roma, Ms Grundzova and Ms Polakova; one Czech non-Roma, Ms Dedicova) were the subject of the ERRC's own test. All five (whose expenses had been paid respectively by the TV station and by ERRC) were ostensibly seeking leave to enter as visitors. Leave to enter was, in the event, given to Ms Novakova, Ms Polakova and Ms Dedicova, but not to Mr Samko or to Ms Grundzova. In other words, of the five whose applications were staged, both the non-Roma applicants were granted leave but only one of the three Roma. Even in the case of that one, moreover, Ms Polakova who had a well-paid job, it was contended that she was subjected to longer and more intrusive questioning than would have been the case had she been a non-Roma.
"i) A complainant must prove his or her case on the balance of probabilities (King -v- Great Britain-China Centre  ICR 516 at 528-9 approved in Zafar -v- Glasgow City Council  1 WLR 1659 at 1664f).
ii) Claims brought under the race and sex discrimination legislation present special problems of proof for complainants, since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them (Zafar at 1664d).
iii) It is unusual to find direct evidence of racial discrimination. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the facts (King at 528-529 approved in Zafar at 1664f-g).
iv) If a claimant can show that he has been less favourably treated than comparable individuals from a different racial group, the court will look to the alleged discriminator for an explanation. If no explanation is put forward or if such explanation is inadequate or unsatisfactory it will be legitimate to infer that the discrimination was on racial grounds (King at 528-9 approved in Zafar at 1664h)."
"51. The Claimants draw attention to the danger of stereotyping, which does not need to be deliberate, and to guidance to be obtained from Lord Nicholls in Nagarajan at 511H-512D:
'All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover we do not always recognise our own prejudices … Members of racial groups need protection from conduct driven by unrecognised prejudices as much as from conscious and deliberate discrimination.'
52. Balcombe LJ in West Midlands Passenger Transport Executive -v- Jaquand Singh  1 WLR 730 at 736 referred to 'a conscious or unconscious racial attitude which involves stereotyped assumptions', and there was helpful reference to the Court of Appeal decision in Skyrail Oceanic Ltd -v- Coleman  ICR 864 (itself cited in a recent Hong Kong case in which Lord Lester QC was involved)."
"74. The conclusion that is sought to be drawn is that the Prague operation was discriminatory against Roma. I am wholly unpersuaded that such a proposition is supported or furthered by the refusal of leave of entry to HM or by the TV programme. Is the apparently differential treatment of the Roma in the ERRC test enough, coupled with the statistics, to draw a conclusion that the operation was targeted against Roma and was discriminatory? I am satisfied that this is not established:
(i) The ERRC test is in my judgment insufficient to draw any conclusion as to the nature of the whole operation, not least given the fact that all three were acting out a part.
(ii) The evidence as to the individual Claimants cannot be ignored. I have already concluded that I do not draw support for a case for discrimination from the case of HM, and obviously the same goes for the three Claimants who simply claimed asylum and do not allege discrimination. But the evidence in respect of the other two Claimants must plainly be taken into account. RG and AKu both now admit that they lied by concealing their intentions to claim asylum, and no longer claim discrimination. The contemporaneous notes in respect of RG show his interrogation, and the carefully developing thought processes of the officer, whereby, notwithstanding the then assertion by RG of an intention of a short term visit, by reference to questioning as to the wife's cousin whom he alleged that he was to visit, and his own financial circumstances, the officer concluded that the expenditure of a trip 'was wholly out of proportion to the likely resultant benefits for someone of modest economic background' and that he 'could not be satisfied that the passenger and his family were genuinely seeking entry as visitors for the period stated'. When Ms Rose talks of a 'bulls eye' in relation to the ERRC test, it is in the context that none of the evidence in relation to the Claimants, or the other non-claimant, supports the case of discrimination.
(iii) Mr Munro makes clear in his evidence that different officers have different techniques and different methods. Not always are the same questions asked, and certainly interrogations will vary in length, depending upon whether early answers are satisfactory or not. I am not persuaded that the evidence of Mr Munro is displaced; namely that the authorisation was neither in place nor in mind, and that the operation in Prague was to be and was carried out non-discriminatorily. Whatever might be the position if Ms Grundzova or indeed Ms Polakova were a claimant in respect of their own individual circumstances (whether in s57 proceedings, if permitted, or otherwise), I am wholly unpersuaded that, even taken with anything that could be made of the statistics, this limited evidence shows that the operation in Prague was carried out discriminatorily, or a fortiori that the six Claimants are entitled to relief in respect of discrimination, or in particular that any of the Claimants can establish, as asserted in Lord Lester's skeleton argument, that the practice of pre-clearance is being operated in a way that discriminates against Roma on racial grounds. In those circumstances I express no view either way as to the desirability of the introduction, either in the United Kingdom or in Prague, of any system of recording by immigration officials of ethnicity."
i) The immigration officers at Prague have treated all passengers in the same way irrespective of race in the sense that they have genuinely tried their utmost not to discriminate against Roma but rather to give Roma and non-Roma alike a fair and equal opportunity to satisfy them on the balance of probabilities that they are coming for a permitted purpose and will not apply for asylum on arrival. So the judge below has found and so to my mind he was entitled to find.
ii) Being aware, however, that Roma alone as a group suffer discrimination (whether or not amounting to persecution) in the Czech Republic and so in general have a much greater incentive than others to seek asylum and therefore, when being questioned at Prague airport, to lie about their intentions in visiting the United Kingdom, immigration officers on that account are inevitably more sceptical of a Roma applicant's true intentions than those of a non-Roma, and are less easily persuaded that the Roma is genuinely intending to come only for a permitted purpose.
iii) Generally, therefore, Roma are questioned for longer and more intensively than non-Roma and are more likely to be refused leave to enter than non-Roma.
"In my judgment the perception of the risk of harm to those who answer the advertisement was not a relevant circumstance for the purpose of the Act. Essentially, it comes within the category, as my Lord [Dillon LJ] has said, of motive for the discrimination and for the policy adopted by the defendants."
"The fallacy, with all respect, which underlies and vitiates [the Court of Appeal's reasoning] was a failure to recognise that the statutory pensionable age, being fixed at 60 for women and 65 for men, is itself a criterion which directly discriminates against men and women in that it treats women more favourably than men 'on the ground of their sex'. … The expression 'pensionable age' is no more than a convenient shorthand expression which refers to the age of 60 in a woman and the age of 65 in a man. In considering whether there has been discrimination against a man 'on the ground of his sex' it cannot possibly make any difference whether the alleged discriminator uses the shorthand expression or spells out its full meaning."
"[W]e are not deciding whether or not women with children as a class are less reliable employees. Parliament has legislated that they are not be treated as a class but as individuals. No employer is bound to employ unreliable employees, whether men or women. But he must investigate each case, and not simply apply what some would call a rule of convenience and others prejudice to exclude a whole class of women or married persons because some members of that class are not suitable employees."
"It is not disputed that the right to equal treatment free of sex discrimination is in our society a fundamental right; as Lord Lester expressed it, a right of high constitutional importance. As an individual right it cannot be undermined or negatived by broad assumptions or generalisations. What may be true of a group may not be true of a significant number of individuals within that group."
Lord Justice Mantell:
Lord Justice Laws:
The Convention challenge: justiciability
"… as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights an obligations, it is irrelevant."
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."
Secondly, the 1951 Convention is engaged in our domestic law by the statutory provisions which confer rights of appeal to the immigration appellate authorities on individuals who claim that their removal or deportation from the United Kingdom would contravene their Convention rights. These provisions have been revised from time to time. It is unnecessary to enter into the detail. It is true that in Sivakumaran  AC 958 Lord Keith of Kinkel observed (at 990G – H) that the Convention had "for all practical purposes been incorporated into United Kingdom". But with respect it is clear in context that he was referring, and only referring, to the obligations which the Secretary of State had undertaken by force of the immigration rules then in force. I would of course accept without cavil that in a case where and to the extent that the Convention is engaged, the Secretary of State's duty is to be loyal to it with all that that entails, and the court will insist that the duty is observed. So much is given, but in the context of the present case with respect no more is given, by the judgment of this court presided over by the Master of the Rolls in Saad & ors  EWCA Civ 2008.
"By the time of these applicants' prosecutions, at latest, it seems to me that refugees generally had become entitled to the benefit of article 31 in accordance with the developing doctrine of legitimate expectations…"
"In… Minister for Immigration and Ethnic Affairs -v- Teoh… it was said that in that jurisdiction ratification of a Convention was to be regarded as a positive statement by the executive government and its agencies that they would act in accordance with the Convention and that that positive statement was an adequate foundation for a legitimate expectation in the absence of statutory or executive indication to the contrary. But as is clear from… ex p. Brind… that is not the law in this country.
We are of course bound by Chundawadra and Behluli, which were not referred to in the judgments in Ahmed & Patel and Adimi; and the report shows that they were not cited to the Divisional Court in the latter case.
"… in section 1(1)(a) cases the tribunal simply has to pose the question: Why did the defendant treat the employee less favourably? It does not have to consider whether a defendant was consciously motivated in his unequal treatment of an employee. That is a straightforward way of carrying out its task in a section 1(1)(a) case."
"All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover we do not always recognise our own prejudices… Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination."
Secondly, there is Balcombe LJ's reference in West Midlands Passenger Transport Executive -v- Singh  1 WLR 730, 736, to "a conscious or unconscious racial attitude which involves stereotyped assumptions."
"… a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination… the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds."
ORDER: Appeal dismissed with costs. Permission to appeal to the House of Lords granted.