Regina v Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant) Do (FC) (Appellant) v Secretary of State for the Home Department (Respondent)

A removal or extradition decision may engage rights under the European Convention on Human Rights other than article 3, even though the anticipated violation would occur in the receiving state. The removing state may incur responsibility for the direct and foreseeable consequences of its own act.

Successful reliance on such rights requires an exceptionally strong case. For a qualified right such as article 9, there must at least be a real risk of a flagrant violation affecting the very essence of the right. The right must effectively be denied or nullified. Ordinary restrictions, discrimination or reduced opportunities to practise a religion do not meet that threshold. Domestic courts should follow clear and constant Strasbourg jurisprudence, keeping pace with it as it evolves without independently enlarging Convention rights.

Mr Ullah, a Pakistani citizen and member of the Ahmadiyya faith, claimed asylum because of anticipated religious persecution. The Secretary of State, an adjudicator and Harrison J rejected his asylum and human-rights claims. Harrison J accepted that article 9 might apply in principle but found no flagrant denial of religious freedom.

Miss Do, a Vietnamese Roman Catholic, also claimed asylum because of restrictions on her religious practice. An adjudicator and the Immigration Appeal Tribunal rejected her claims, finding that she could continue practising her religion in Vietnam, albeit in reduced circumstances.

The Court of Appeal dismissed the conjoined appeals in R (Ullah) v Special Adjudicator and Do v Immigration Appeal Tribunal [2002] EWCA Civ 1856, [2003] 1 WLR 770. It held that, where anticipated treatment abroad fell below article 3 severity, no other Convention article needed to be recognised as engaged.

The House considered whether removal could engage a Convention right other than article 3, particularly article 9, where the anticipated treatment occurred abroad and fell short of article 3 ill-treatment. The adjudicators’ factual findings were not successfully challenged, making the general legal question academic to the disposition but sufficiently important for determination.

1. Disposition. The House unanimously dismissed both appeals. Lord Bingham delivered the leading speech. Lord Steyn and Lord Carswell gave concurring reasons, while Lord Walker and Baroness Hale agreed that the appeals should be dismissed. The adjudicators were entitled to make their factual findings, and neither appellant came close to establishing the required interference with article 9.

2. Convention rights in foreign cases. Per Lord Bingham, the Court of Appeal’s categorical exclusion of every Convention article other than article 3 was wrong. The primary focus of the European Convention on Human Rights is territorial. Nevertheless, a state may incur responsibility where its decision to remove a person has the direct and foreseeable consequence of exposing that person to a sufficiently grave violation abroad. The principle applies to expulsion as well as extradition.

3. Applicable threshold. Strasbourg jurisprudence permits possible reliance on articles other than article 3 but requires a very strong case. Article 3 requires substantial grounds for believing that the person faces a real risk of prohibited ill-treatment. Article 6 requires a real risk of a flagrant denial of justice. Per Lord Bingham, Lord Steyn and Lord Carswell, qualified rights such as articles 8 and 9 require at least a real risk of a flagrant violation affecting the very essence of the right. The right must effectively be completely denied or nullified. The strength of immigration control and extradition interests reinforces the exceptional nature of such claims.

4. Strasbourg jurisprudence. Section 2(1) of the Human Rights Act 1998 requires domestic courts to take relevant Strasbourg jurisprudence into account. Per Lord Bingham, clear and constant Strasbourg jurisprudence should ordinarily be followed. National courts should keep pace with its development, without diluting it or enlarging Convention rights through an independent domestic interpretation.

5. Application. The restrictions and discrimination found in Pakistan and Vietnam did not establish persecution, article 3 ill-treatment or a flagrant denial of religious freedom. The anticipated limitations did not nullify either appellant’s article 9 rights. Their removal therefore remained lawful, notwithstanding the House’s disagreement with the Court of Appeal’s wider proposition of law.

1. House of Lords: In Regina v Special Adjudicator ex parte Ullah; Do v Secretary of State for the Home Department [2004] UKHL 26 , the House unanimously dismissed both appeals but rejected the Court of Appeal’s categorical exclusion of Convention rights other than article 3.
2. Court of Appeal: The conjoined appeals were dismissed in R (Ullah) v Special Adjudicator and Do v Immigration Appeal Tribunal [2002] EWCA Civ 1856 , [2003] 1 WLR 770 . The court held that anticipated treatment abroad falling below article 3 severity did not require recognition that another Convention article was engaged.
3. High Court: Harrison J dismissed Mr Ullah’s judicial-review application. He accepted that article 9 could apply in principle but held that the facts disclosed no flagrant denial of the right.
4. Immigration Appeal Tribunal: The Tribunal dismissed Miss Do’s appeal. It upheld the asylum decision and found no infringement of article 9.
5. Adjudicators: The respective adjudicators dismissed both asylum and human-rights appeals under the Immigration and Asylum Act 1999.