R (Ullah) v Special Adjudicator (Do v Immigration Appeal Tribunal)

Where removal is challenged solely because of anticipated treatment in the receiving state, treatment falling short of the serious ill-treatment prohibited by article 3 does not require an English court to hold that another Convention right is engaged. In particular, removal to a country which restricts freedom to manifest religion does not infringe the Human Rights Act 1998 unless the anticipated treatment reaches the article 3 threshold.

Article 3 applies exceptionally because fundamental humanitarian principles prohibit removal where substantial grounds establish a real risk of serious ill-treatment. The Convention does not generally require contracting states to secure full Convention standards in non-contracting receiving states. Humanitarian circumstances below that threshold may support exceptional leave to remain, but the decision remains subject to ordinary judicial review rather than Convention constraints.

These conjoined appeals concerned asylum seekers whose claims of religious persecution had failed. Mr Ullah, an Ahmadi from Pakistan, appealed from Harrison J's refusal to quash an adjudicator's decision. Miss Do, a Catholic from Vietnam, appealed from the Immigration Appeal Tribunal's determination of 7 January 2002 upholding an adjudicator's decision.

The adjudicators found that both appellants could practise their religions on return, although under restrictions. The alleged treatment fell short of persecution and article 3 ill-treatment. The common question was whether the Human Rights Act 1998, together with article 9 of the European Convention on Human Rights, required the United Kingdom to provide refuge to persons prevented from freely preaching or teaching their religion in their home countries.

1. Both appeals were dismissed unanimously. Lord Phillips MR delivered the judgment of the three-member court. The anticipated restrictions upon the appellants' religious practice did not reach the article 3 threshold and their removal therefore did not engage article 9.

2. Article 1 of the European Convention on Human Rights is principally territorial. The Convention does not generally require a contracting state to ensure that conditions in a receiving state conform to every Convention guarantee. Although removal is an act performed within the United Kingdom, anticipated consequences abroad engage article 3 only under the exceptional principle recognised in Soering v United Kingdom (1989) 11 EHRR 439 and confirmed in Chahal v United Kingdom (1996) 23 EHRR 413.

3. That exception reflects fundamental humanitarian principles. A state may not remove a person where substantial grounds establish a real risk of serious ill-treatment contrary to article 3. The protection is absolute once that threshold is met, and the state's immigration or national-security interests cannot be balanced against the risk.

4. Strasbourg jurisprudence had contemplated, but had not established, a comparable extension for other Convention rights. A flagrant denial of a fair trial might exceptionally engage article 6, but no Strasbourg authority had extended that reasoning to article 9. Sections 3 and 6 of the Human Rights Act 1998 did not require the Court of Appeal to take that further step.

5. Accordingly, where a person relies solely upon treatment expected in the receiving state, and that treatment is insufficiently severe to engage article 3, an English court need not recognise that article 9 or any other Convention article is engaged. Humanitarian circumstances below that threshold may justify exceptional leave to remain. Such a decision is governed by ordinary judicial-review principles rather than Convention constraints.

6. Mr Ullah's circumstances had already been found insufficient to engage article 3. Miss Do could continue practising Catholicism and could teach by moving elsewhere within Vietnam. Those restrictions fell far short of persecution or article 3 ill-treatment. Her Refugee Convention and article 9 claims therefore also failed.

• Court of Appeal: By [2002] EWCA Civ 1856, unanimously dismissed both conjoined appeals.
• Administrative Court — Ullah: Harrison J refused the application to quash the adjudicator's decision dated 17 September 2001, holding that the anticipated article 9 violation was not flagrant. No citation is stated.
• Immigration adjudicator — Ullah: Dismissed the asylum and human-rights appeal against the Secretary of State's refusal of asylum.
• Immigration Appeal Tribunal — Do: By a final determination dated 7 January 2002, upheld the adjudicator's decision and rejected the article 9 case. No citation is stated.
• Immigration adjudicator — Do: Dismissed the asylum appeal and rejected the claims under articles 3 and 5.