CYIL vol. 10 (2019)

HARALD CHRISTIAN SCHEU CYIL 10 ȍ2019Ȏ For the purpose of this article it is crucial to see whether or not, respectively, to what extent the use of stereotypes contradicts the prohibition of racial discrimination. 18 Indeed, the Court of Appeal found that since British immigration officials knew that almost all Czech asylum seekers in the UK were of Roma origin, they honed in their controls almost exclusively on this group. 19 In other words, those passengers who immigration officials presumed were of Roma origin were subjected to stricter questioning and controls. According to official statistics, almost 90% of Roma passengers were banned from the UK. The probability of rejection was 400 times higher for members of the Roma minority than for other passengers from the Czech Republic. Judge Simon Brown, who prepared the judgment for the three-member Court of Appeal, devoted a whole chapter to the issue of stereotypes. Although Brown admitted that the British authorities had treated Roma less favorably than non-Roma, he refused to call such practice stereotyping. According to Brown, it was legitimate for immigration authorities to expect Roma passengers to lie about the true purpose of their journey more often than other passengers. Brown compared the situation of British immigration officers at Prague-Ruzyně Airport to that of state officials in the fight against terrorism. Brown asked the rhetorical question of whether, in the event of a terrorist attack, it would be legitimate for the police to focus on people with an Islamic background and to treat them more suspiciously. Also in the case of terrorist acts committed in Northern Ireland, security forces would legitimately concentrate their activity on a particular group of people. Subsequently, Judge Brown tried to rely on what he called common sense. According to Brown, there was no direct racial discrimination in this case, as the reason for the refusal of Roma origin was not their race or ethnicity. From this point of view, the treatment of Roma passengers could only amount to indirect discrimination, which, however, would be permissible as it pursued a legitimate aim. Another member of the Court of Appeal, Charles Mantell, joined these arguments, saying that any other outcome “would be an affront to common sense”. Mantell compared the case of ethnic profiling at Prague Airport to a case in which after the outbreak of a dangerous epidemic in China, passengers from China would be controlled more severely than travelers from other destinations. According to Mantell, there would be a less favorable treatment in such a case, but not because of race. As regards the question whether stereotypes are permissible, the third member of the Court of Appeal, John Laws, disagreed with the majority and followed up on earlier British case law on racial discrimination in the field of employment. In a 1999 judgment, 20 the competent court emphasized that all human beings have certain preconceptions, beliefs, attitudes, and prejudices on many subjects. Therefore, having prejudices corresponds to human nature, whether they are conscious or subconscious. However, at the crucial point, the Court concluded that members of racial minorities need protection from conduct driven by unrecognized prejudice as much as from conscious and deliberate discrimination. Following the spirit of this judgment, Laws stated that stereotypes are harmful not only if they are false, 18 It may be added that the applicants’ arguments concerning the alleged breach of asylum obligations did not stand before the competent court. 19 For the judgment of the Court of Appeal (European Roma Rights Centre & Ors v Immigration Officer At Prague Airport & Anor [2003] EWCA Civ 666), see http://www.bailii.org/ew/cases/EWCA/Civ/2003/666.html. 20 Swiggs and Others v. Nagarajan [1999] UKHL 36; [2000] 1 AC 501; [1999] 4 All ER 65; [1999] 3 WLR 425 (15 July 1999).

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