CYIL vol. 10 (2019)

HARALD CHRISTIAN SCHEU CYIL 10 ȍ2019Ȏ British courts in the case of stereotyped passenger checks. Neither the Court of Appeal nor the House of Lords (Appellate Committee) questioned whether only an approach based upon negative stereotypes was prohibited or whether also positive or value-neutral stereotypes shall be considered unacceptable. While the dissenting opinion of Judge Laws emphasized that both true and untrue stereotypes are contrary to anti-discrimination law, it is unclear whether this generalization also applies to negative and positive stereotypes. How shall a dogmatic approach deal with cases in which members of an ethnic minority are considered particularly honest and trustworthy and are therefore subjected to less rigorous immigration checks than members of the majority and other minorities? In such a case, positive stereotyping of one group has a negative impact on other groups. Shall the specific vulnerability of a discriminated group be a relevant factor? This would mean that positive stereotyping of a minority would not matter if it had a negative impact on the majority, as the majority does not need special protection. However, positive stereotyping of one minority would be illegal if it had a discriminatory effect on another (vulnerable) minority. In the case of immigration checks at Prague Airport, it may be questionable whether the assumption that Czech Roma will be much more likely to apply for asylum in the UK should be understood as negative stereotype. Indeed, the fact that members of certain minorities are victims of serious persecution in the sense of refugee law does not disqualify them morally. However, the assumption that Czech Roma would abuse the British social system more often than other Czech citizens has to be considered a clear negative stereotype. In our view, the arguments of the two British courts did not take sufficient account of that difference. Furthermore, we are bound to wonder how the House of Lords (Appellate Committee) has expressed disrespect for the concept of common sense, on which the majority at the Court of Appeal had, on the other hand, explicitly relied upon. The question is whether it would be more appropriate to evaluate legitimate reasons for limiting human rights instead of pointing at common sense considerations. The British immigration authorities probably intended to protect the British asylum system and social welfare system from abuse. It may of course be questioned whether the use of social benefits by persons who, subsequently, are not granted asylum constitutes an abuse in a legal sense. It cannot be overlooked that the applicants from the Czech Republic were invoking rights ensured by UK law. In such a situation, what is at stake is not common sense in the first place, but legitimate grounds for restricting equal access to social benefits. The Court of Appeal, which ruled in favor of the British immigration authorities, did not explain in detail for which legitimate reasons potential Roma applicants shall be prevented from applying for asylum and drawing social benefits under British law. Finally, the House of Lords in its dogmatic decision did not address the question of whether the rigorous standard of stereotyping shall apply to public authorities, such as the British immigration officials, as well as to private entities. In other words, do private employers and service providers need to meet the same requirements? If so, it may be a problem to convince them that they should act contrary to something that the Court of Appeal has described as common sense and the Appellate Committee considered a true stereotype.

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