R (Ullah) v Special Adjudicator

Facts

Ullah, a Pakistani national and a member of the Ahmadi religious minority, claimed asylum on the ground that he would suffer persecution if returned to Pakistan. His claim under the Refugee Convention was rejected. He argued that his removal would breach his right to freedom of religion under Article 9 of the European Convention on Human Rights. His appeal was heard with that of Do, a Vietnamese national whose claim also relied on the Convention.

History

The claims were rejected by the immigration authorities, and the appeals of Ullah and Do failed in the Court of Appeal. They appealed to the House of Lords.

Issue

Whether the removal of a person from the United Kingdom to a country where he might suffer interference with a right under the Convention other than Article 3, in particular Article 9, could be a breach of the Convention by the United Kingdom, and if so, what degree of risk or interference must be shown.

Held

The appeals were dismissed. Articles of the Convention other than Article 3 could in principle be engaged by expulsion, but only where there was a real risk of a flagrant denial or gross violation of the right in the receiving country, and that standard was not met on the facts.

Ratio

• The removal of a person to another state can engage a Convention right other than Article 3 only if there is a real risk that the right would be completely denied or nullified in the destination country, that is, a flagrant denial or gross violation of the right. A mere risk of interference of the kind that would breach the Convention if it occurred in a contracting state is not enough.
• A court applying the Human Rights Act 1998 should, in the absence of special circumstances, follow any clear and constant jurisprudence of the European Court of Human Rights. It should not, however, go further than Strasbourg would go, and the Convention rights have the meaning given by the Strasbourg court.

The judgments

Key reasoning

• The Convention is addressed to contracting states and the extent to which the United Kingdom is responsible for treatment in another state is limited, so a very strong case is needed to show that an expulsion is itself a breach.
• The case law of the European Court of Human Rights, in particular the decisions on risk of a flagrant denial of a right to a fair trial and on Article 3, indicates that other rights can be engaged where the breach in the receiving state would be so fundamental as to nullify the right.
• Section 2 of the Human Rights Act 1998 requires courts to take account of Strasbourg decisions, and the Convention should receive a uniform meaning across contracting states, so national courts should not give rights a wider meaning than the Strasbourg court has given them.

Where it fits in the module

In the module on the Human Rights Act 1998, the case is the leading statement of how domestic courts relate to Strasbourg under section 2. It raises the question whether national courts should regard Strasbourg as setting both a floor and a ceiling for the rights, or whether the Act allows them to develop rights further. Later cases such as Pinnock and Moohan, and the debate about dialogue between domestic courts and Strasbourg, should be read with it.

Criticisms

• The mirror principle treats the Convention as having a single meaning given by Strasbourg and so limits the ability of domestic courts to develop the rights in light of national constitutional traditions, which sits uneasily with the idea that the Human Rights Act gives effect to rights in domestic law.
• The flagrant breach threshold is high and hard to apply, and it has the effect that serious interferences with religious freedom and other rights do not prevent removal, although similar interferences in the United Kingdom would be a breach.
• The statement that national courts go no further than Strasbourg is not found in section 2 of the Human Rights Act, which only requires courts to take account of Strasbourg case law, and it may constrain the common law in ways that were not intended.