R (Ullah) v Special Adjudicator

The House considered whether Convention rights other than Article 3 could in principle be relied on to resist removal of an alien where the ill-treatment feared in the receiving state did not reach the threshold of Article 3. Taking into account Strasbourg jurisprudence and the duty under section 2(1) of the Human Rights Act 1998, the House held that other Convention articles (for example Articles 2, 4, 5, 6, 8 and 9) could in principle be engaged in a "foreign" removal case, but only in very exceptional circumstances.

The court emphasised the high threshold required for engagement of qualified rights outside the United Kingdom: an interference must amount to a real risk of a flagrant or fundamental denial of the essence of the right (for example a "flagrant denial of a fair trial" under Article 6 or a "real risk" of treatment contrary to Article 3). On the facts the adjudicators’ findings were not shown to be wrong and the appellants failed to satisfy that stringent standard, so both appeals were dismissed.

Background and parties:

• Appellant 1: Ahsan Ullah, a Pakistani national and active member of the Ahmadiyya faith, claimed asylum and protection under the European Convention on Human Rights, in particular Article 9.
• Appellant 2: Thi Lien Do, a Vietnamese national and practising Roman Catholic, claimed asylum and reliance on Convention rights if removed to Vietnam.

Procedural history: Both appellants had asylum claims refused by the Secretary of State, appeals were dismissed by immigration adjudicators (and the Immigration Appeal Tribunal in Do's case), judicial review was refused by Harrison J (with permission to appeal) and the Court of Appeal dismissed the appeals ([2002] EWCA Civ 1856; [2003] 1 WLR 770). Leave to appeal to the House of Lords was granted and the appeals were heard together.

Nature of the claim / relief sought: The appellants sought to resist removal to their countries of origin on the ground that removal would breach their Convention rights (principally Article 9, freedom of thought, conscience and religion). They relied generally on the Human Rights Act 1998 duty to have regard to Strasbourg jurisprudence and on established Strasbourg authorities (notably Soering and Chahal) permitting Convention reliance in "foreign" cases.

Issues framed:

• Whether any article of the European Convention on Human Rights other than Article 3 can be engaged in a removal/expulsion case where the anticipated treatment in the receiving state breaches the Convention but does not meet the minimum threshold of Article 3.
• If other articles can be engaged in principle, what is the appropriate threshold or test for engagement (for example the "real risk" or "flagrant" violation tests) and how should domestic courts apply Strasbourg jurisprudence under the Human Rights Act 1998?

Reasoning and holdings: The House reviewed extensive Strasbourg case law (including Soering, Chahal, D v United Kingdom, Bensaid, Cruz Varas, Vilvarajah and others) and concluded that the Convention is primarily territorial but that the Strasbourg court has recognised limited exceptions in which a Contracting State may incur responsibility for foreseeable consequences of removal. The House held that Articles other than Article 3 (notably Articles 2, 4, 5, 6 and 8, and in principle Article 9) may be engaged in a foreign removal case, but only where there are very strong facts demonstrating a real risk of a flagrant or fundamental breach of the essence of the relevant right. The Human Rights Act 1998 requires domestic courts to take Strasbourg jurisprudence into account but does not authorize dilution of that jurisprudence. Applying those principles to the facts, the House concluded that even if Article 9 could in principle be engaged, the appellants had not shown facts capable of meeting the high threshold and their appeals were dismissed.

Wider context: The House rejected the Court of Appeal's proposition that only Article 3 could ever be engaged in foreign removal cases, but stressed the exceptional nature of any extension to other Convention rights and the stringent proof required.

Appeals dismissed. The House held that other Convention articles besides Article 3 can in principle be engaged in removal cases, but only in very exceptional circumstances where there is a real risk of a flagrant or fundamental breach of the essence of the relevant right. The appellants did not meet that high threshold and the adjudicators' factual findings were not disturbed.

Adjudicator decisions dismissing asylum and human rights claims; Immigration Appeal Tribunal dismissed Do's appeal; judicial review refused by Harrison J (permission to appeal granted); Court of Appeal dismissed the appeals ([2002] EWCA Civ 1856; [2003] 1 WLR 770). Appeal to the House of Lords: [2004] UKHL 26.