CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE FIGHT AGAINST STEREOTYPES AS AN INSTRUMENT OF EUROPEAN … but also if they are true. According to Laws, immigration officials used a stereotype that was probably true, but this is not acceptable from the perspective of anti-discrimination law. The case then went on before the Supreme Court of Justice, i.e. before the five-member Appellate Committee of the House of Lords. 21 The Appellate Committee first admitted that the reasoning of the majority of the Court of Appeal “had at first glance the attractiveness of appearing to be in accord with common sense”. In the light of the experience of immigration officials, it might seem understandable that they expected a greater risk of false claims provided by passengers of Roma origin than by other passengers. Subsequently, however, the Appellate Committee departed from the conclusions drawn by the majority decision of the Court of Appeal. According to the Appellate Committee, it was not legitimate to use a stereotype, because “what may be true of a group may not be true of a significant number of individuals within that group”. Therefore, immigration officials should apply the same strict control procedures to all passengers. Only with a view to the circumstances of the particular case they should intensify their control. It is interesting that the judges of the Court of Appeal and the Appellate Committee of the House of Lords have admitted that there may be a conflict between common sense on the one hand and the strict rejection of stereotypes on the other.While the Court of Appeal tried to bring its judgment in line with what it considered to be common sense, the Appellate Committee of the House of Lords proceeded in a more dogmatic manner. Although the Committee explicitly recalled that “many will think it contrary to common sense to approach all applicants with an equally open mind, irrespective of the very good reasons there may be to suspect some of them more than others”, it emphasized that anti-discrimination law requires precisely such an unbiased attitude. According to the Appellate Committee, law ensures that individuals are not disadvantaged by the general characteristics of the group to which they belong. From the point of view of human rights protection and minority protection, there is little that can be objected in relation to such a dogmatic approach. However, abstracting from ordinary human experience may cause practical problems. An approach which strictly rejects stereotypes is not merely contrary to what judges of the Court of Appeal have described as common sense. We have to ask how much immigration controls at Prague Airport would be prolonged if British immigration officials were applying the same strict standard towards all passengers. How many people who never intended to seek asylum in the UK would cancel their travel plans if they had to wait hours before boarding the plane. It may also be assumed that longer immigration checks would be significantly more expensive than with the profiling procedure. Is the consequent fight against stereotypes worth these costs? Furthermore, it should be borne in mind that the general public’s perception will be based on other criteria than human rights dogma. Very quickly, information might be disseminated that due to former asylum applications of Czech Roma in the UK, everyone would be subjected to strict and lengthy pre-departure checks. The application of anti-discrimination dogmas, thus, may have a counterproductive effect and can ultimately strengthen existing stereotypes towards an ethnic minority. In addition to these undesirable consequences of a strictly dogmatic approach, we may point out some aspects of the fight against stereotypes which have not been clarified by the

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

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