R (Ullah) v Special Adjudicator [2004] UKHL 26

Two failed asylum seekers, an Ahmadi from Pakistan and a Catholic from Vietnam, resisted removal under Article 9 ECHR, claiming religious persecution. The House of Lords dismissed their appeals on facts but held that Convention articles beyond Article 3 could engage in foreign removal cases where a flagrant denial of rights was shown.

Facts

The appellants, Mr Ullah and Miss Do, were failed asylum seekers from Pakistan and Vietnam respectively. Mr Ullah was an active member of the Ahmadhiya faith who claimed persecution by Muslim extremists in Pakistan. Miss Do was a practising Roman Catholic from Vietnam who claimed restrictions on her religious practice and teaching. In both cases, the Secretary of State refused asylum, and adjudicators found that the appellants did not have a well-founded fear of persecution under the 1951 Refugee Convention. The adjudicators also rejected human rights claims, including those based on Article 9 ECHR (freedom of thought, conscience and religion). The Court of Appeal dismissed their appeals, holding that where treatment in the receiving state fell short of engaging Article 3, no other Convention article could be engaged in a removal case.

Issues

The primary issue, as agreed by the parties, was:

Whether any article of the European Convention on Human Rights other than article 3 could be engaged in relation to a removal of an individual from the United Kingdom where the anticipated treatment in the receiving state will be in breach of the requirements of the Convention, but such treatment does not meet the minimum requirements of article 3 of the Convention.

Although framed generally, the specific question concerned Article 9 and the freedom to manifest religion.

Arguments

Appellants

Counsel argued that the Strasbourg jurisprudence, including Soering v United Kingdom, supported a ‘causation principle’ whereby a removing state could be responsible for foreseeable consequences in the receiving state across a range of Convention rights, not just Article 3. They contended the Court of Appeal had misread the case law in confining the exception to Article 3.

Respondents

The Secretary of State, supported by the Attorney General, argued that the extra-territorial exception to the principle of territoriality established in Soering was confined to Article 3, reflecting its absolute character and the affront to fundamental humanitarian principles that ill-treatment contrary to it would represent.

Judgment

The House of Lords unanimously dismissed both appeals on the facts, holding that neither appellant had come close to establishing a sufficient interference with Article 9 rights to resist removal. However, the House disagreed with the Court of Appeal’s broader statement of principle at paragraph 64 of its judgment.

Lord Bingham’s reasoning

Lord Bingham distinguished ‘domestic cases’, where the state acts within its territory in a way infringing Convention rights, from ‘foreign cases’, where the alleged breach arises from removal exposing the applicant to violation abroad. Reviewing Strasbourg authorities including Soering, Chahal, D v United Kingdom, Bensaid, Boultif, Einhorn and Tomic, he concluded that the Strasbourg court had not confined the extra-territorial exception to Article 3. Articles 2, 5, 6 and 8 had each been recognised as capable of engagement in foreign cases, albeit subject to exceptionally high thresholds. He held that reliance on Article 9 could not be ruled out in principle, though it was difficult to envisage a successful claim that would not also fall under Article 3 or the Refugee Convention.

Lord Bingham emphasised the duty under section 2 of the Human Rights Act 1998 to keep pace with Strasbourg jurisprudence:

no more, but certainly no less.

Threshold

Successful reliance on articles other than Article 3 requires a ‘very strong case’. For Article 6, the test is whether the applicant risks a ‘flagrant denial’ of a fair trial. The House endorsed the Immigration Appeal Tribunal’s formulation in Devaseelan:

The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case – where the right will be completely denied or nullified in the destination country – that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state.

Lord Steyn

Lord Steyn provided an extensive survey of the Convention articles, concluding that the Court of Appeal’s ruling was wrong and that a high threshold test of ‘a real risk of a flagrant violation of the very essence of the right’ must be satisfied before articles other than Article 3 could be engaged.

Lord Carswell

Lord Carswell agreed, observing that while Article 9 was capable in principle of engagement, it was difficult to envisage a case meeting the flagrancy requirement that would not also engage Article 3.

Implications

The decision establishes that, contrary to the Court of Appeal’s restrictive view, the protection against removal under the ECHR is not confined to Article 3 cases. Articles 2, 4, 5, 6, 7, 8 and 9 may in principle be engaged in foreign removal cases, but only where the applicant demonstrates a real risk of a flagrant breach amounting to a complete denial or nullification of the right in question.

The judgment is significant for immigration and asylum practitioners because it preserves the conceptual possibility of resisting removal on grounds beyond Article 3, while making clear that the threshold is extremely demanding. The case also articulates the ‘mirror principle’ (no more, no less than Strasbourg) governing the domestic application of section 2 of the Human Rights Act 1998, an approach which has had profound influence on subsequent jurisprudence concerning the relationship between domestic courts and the Strasbourg court.

The decision balances the right of sovereign states to control immigration with the humanitarian obligations of the Convention. It acknowledges that qualified rights such as Articles 8 and 9 involve a balance that the Strasbourg court is poorly placed to strike in foreign cases without representations from the receiving state, justifying the high threshold required.

The judgment leaves open the precise application of the flagrancy test to specific articles, and Lord Walker and Baroness Hale specifically deferred fuller treatment of Article 8 to the companion case of R (Razgar) v Secretary of State for the Home Department.

Verdict: Both appeals dismissed. Although the Court of Appeal’s statement at paragraph 64 of its judgment was wrong as a matter of principle – articles of the Convention other than Article 3 can in principle be engaged in foreign removal cases – neither appellant established facts capable of supporting a claim that removal would result in a flagrant breach of their Article 9 rights.

Source: R (Ullah) v Special Adjudicator [2004] UKHL 26