(back to preceding text)

    15.  The crucial issue dividing the parties is, therefore, whether, in a foreign case, reliance may be placed on any article of the Convention other than article 3, and in particular whether reliance may be placed on article 9. It is convenient to start with article 2, the right to life. The applicant in D v United Kingdom (1997) 24 EHRR 423 based his claim on article 2 as well as article 3: neither the Commission nor the Court rejected this claim as untenable in principle, but neither found it necessary to review the article 2 complaint separately from that under article 3. In Gonzalez v Spain (Application No 43544/98, 29 June 1999, unreported) the applicant's complaint under article 2 was rejected on the facts, as was his complaint under article 3. In Dehwari v Netherlands (2000) 29 EHRR CD 74, a foreign case concerned with expulsion to Iran, the applicant's claim based on article 2 failed on the facts. But the claim was not rejected in principle, and having referred to the case law on article 3 the Commission said:

"59.  The Commission has previously examined the question whether analogous considerations apply to Article 2, in particular whether this provision can also engage the responsibility of a Contracting State where, upon expulsion or other removal, the person's life is in danger. To this end the Commission reiterated that Article 2 contains two separate though interrelated basic elements. The first sentence of paragraph 1 sets forth the general obligation that the right to life shall be protected by law. The second sentence of this paragraph contains a prohibition of intentional deprivation of life, delimited by the exceptions mentioned in the second sentence itself and in paragraph 2 (Bahaddar v Netherlands (1998) 26 EHRR 278).

60.  The Commission finds nothing to indicate that the expulsion of the applicant would amount to a violation of the general obligation contained in the first sentence of paragraph 1 of Article 2 of the Convention.

61.  As to the prohibition of intentional deprivation of life, including the execution of a death penalty, the Commission does not exclude that an issue might arise under Article 2 of the Convention or Article 1 of Protocol No. 6 in circumstances in which the expelling State knowingly puts the person concerned [at] such high risk of losing his life as for the outcome to be a near-certainty. The Commission considers, however, that a 'real risk' — within the meaning of the case law concerning Article 3 (see para 58 above) — of loss of life would not as such necessarily render an expulsion contrary to Article 2 of the Convention or Article 1 of Protocol No. 6, although it would amount to inhuman treatment within the meaning of Article 3 of the Convention (cf. Bahaddar v Netherlands, op. cit., para 78).

62.  The Commission has examined the applicant's allegations but finds it insufficiently substantiated that his expulsion would disclose such a high risk of loss of life as to trigger the applicability of Article 2 of the Convention or Article 1 of Protocol No. 6."

These statements must, I think, be taken to establish the possibility in principle of relying on article 2 in a foreign case, if the facts are strong enough. Given the special importance attached to the right to life by modern human rights instruments it would perhaps be surprising if article 3 could be relied on and article 2 could not.

    16.  Authority on the applicability in a foreign case of article 4 of the Convention (the right not to be held in slavery or servitude, and not to be required to perform forced or compulsory labour) is scant. The House was referred only to one admissibility decision: Ould Barar v Sweden (1999) 28 EHRR CD 213. The Court found the applicant's complaint under article 4 (as well as his complaints under articles 2 and 3) to be inadmissible on the facts, although it was recognised

"that the expulsion of a person to a country where there is an officially recognised regime of slavery might, in certain circumstances, raise an issue under Article 3 of the Convention."

    The respondents are probably right to submit that a claim under article 4, if strong enough, would succeed under article 3. But it would seem to be inconsistent with the humanitarian principles underpinning the Convention to accept that, if the facts were strong enough, a claim would be rejected even if it were based on article 4 alone.

    17.  There is more Strasbourg authority on the potential applicability of articles 5 and 6 in foreign cases, although it remains somewhat tentative. In Soering the Court did not exclude the applicability of article 6: see paragraph 113, quoted in paragraph 10 above. In Bankovic such an exceptional case was recognised as possible: see paragraph 68 of the Court's judgment quoted in paragraph 14 above. Drozd and Janousek v France and Spain (1992) 14 EHRR 745 was not, within my definition, a foreign case. It involved no removal. The applicants complained of the fairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5. The case is important, first, for the ruling (in paragraph 110 of the Court's judgment) that member states are obliged to refuse their co-operation with another state if it emerges that a conviction "is the result of a flagrant denial of justice". Secondly, the case is notable for the concurring opinion of Judge Matscher, who said (page 795):

"According to the Court's case law, certain provisions of the Convention do have what one might call an indirect effect, even where they are not directly applicable. Thus, for example, a State may violate Articles 3 and/or 6 of the Convention by ordering a person to be extradited or deported to a country, whether or not a member state of the Convention, where he runs a real risk of suffering treatment contrary to those provisions of the Convention; other hypothetical cases of an indirect effect of certain provisions of the Convention are also quite conceivable."

In MAR v United Kingdom (1996) 23 EHRR CD 120, an expulsion case, the applicant's complaints under articles 5 and 6 of the Convention, as well as those under articles 2 and 3, were found to be admissible and to call for examination on the merits. The case was settled. In Dehwari v Netherlands (2000) 29 EHRR CD 74 the Commission (in paragraph 86) echoed the observation of the Court in paragraph 113 of its judgment in Soering: see paragraph 10 above. The applicant in Einhorn v France (Application No 71555/01, 16 October 2001, unreported) sought to resist extradition to the United States. One of his complaints related to the fairness of the trial he would undergo there. The Court held in paragraph 32 of its judgment

"that it cannot be ruled out that an issue might exceptionally be raised under Article 6 of the Convention by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of justice in the requesting country …."

The Court added (in paragraph 33) that:

"The extradition of the applicant to the United States would therefore be likely to raise an issue under Article 6 of the Convention if there were substantial grounds for believing that he would be unable to obtain a retrial in that country and would be imprisoned there in order to serve the sentence passed on him in absentia."

The applicant failed on the facts. In Mamatkulov v Turkey (2003) 14 BHRC 149 a retrospective complaint of extradition to Uzbekistan was made. It was not established that the applicants had been denied a fair trial, and accordingly no issue was held to arise under article 6(1) of the Convention. Tomic v United Kingdom (Application No 17837/03, 14 October 2003, unreported) was the most recent authority on articles 5 and 6 cited to the House. It was an expulsion case. The Court ruled (in paragraph 3 of its judgment):

"The Court does not exclude that an issue might exceptionally be raised under Article 6 by an expulsion decision in circumstances where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country, particularly where there is the risk of execution …. Whether an issue could be raised by the prospect of arbitrary detention contrary to Article 5 is even less clear. However, the applicant's submissions do not disclose that he faces such a risk under either provision."

Both sides drew comfort from this body of authority. The respondents pointed out that in no foreign case had either the Commission or the Court found a violation of article 5 or article 6. The appellants pointed out that while certain complaints under these articles had failed for want of proof, neither the Commission nor the Court had rejected a complaint under these articles as inadmissible in principle. Both contentions, as it seems to me, are correct.

    18.  As observed in paragraph 8 above, Abdulaziz was not a foreign case since the applicants' complaint related not to the violation of their Convention rights under article 8 which would occur if they were removed to another country but to the violation of those rights which they would suffer here if their husbands were refused entry or leave to remain. Several authorities cited fell into the same category. But some did not, and were of a hybrid nature. The removal of a person from country A to country B may both violate his right to respect for his private and family life in country A and also violate the same right by depriving him of family life or impeding his enjoyment of private life in country B. The applicant in Moustaquim v Belgium (1991) 13 EHRR 802 was a Moroccan national who arrived in Belgium in 1965 when he was aged under 2. In 1984, nineteen years later, after a career of juvenile crime, he was deported, but the deportation order was suspended in 1989 and he returned to Belgium. He complained that his deportation had violated his right to private and family life under article 8. The Court held (paragraph 36 of its judgment) that there had been interference by a public authority with his right to family life guaranteed in article 8(1) and (paragraph 46) that this was not justified under article 8(2). In Bensaid v United Kingdom (2001) 33 EHRR 205 the applicant was an Algerian national who had arrived in this country in 1989 as a visitor, married a United Kingdom citizen in 1993 and was given notice of intention to deport him in 1997. He was suffering from a psychotic illness and sought, unsuccessfully, to contend that his removal to Algeria would violate his rights under article 3 because of the lack of psychiatric facilities there. He also complained that his removal would breach his rights under article 8. The Court held (in paragraph 46 of it judgment):

"Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity."

The claim failed because the interference was found (paragraph 48) to be justified. I would here refer to, but need not repeat, the more detailed analysis I have made of this case in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. The applicant in Boultif v Switzerland (2001) 33 EHRR 1179 entered Switzerland in 1992, married a Swiss wife and was imprisoned for crime. In 1998 the Swiss authorities refused to renew his residence permit. The Court's approach was expressed in paragraphs 39 - 41 of its judgment:

"39.  The Court recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8(1) of the Convention.

40.  In the present case, the applicant, an Algerian citizen, is married to a Swiss citizen. Thus, the refusal to renew the applicant's residence permit in Switzerland interfered with the applicant's right to respect for his family life within the meaning of Article 8(1) of the Convention.

41.  Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether it was 'in accordance with the law', motivated by one or more of the legitimate aims set out in that paragraph, and 'necessary in a democratic society'."

The Court found that the interference was not justified under article 8(2), and the complaint therefore succeeded. This authority compels the conclusion that reliance may be placed on article 8 in a foreign case where the applicant can show that removal will seriously interfere with his rights guaranteed by article 8 and such interference is not shown to be justified.

    19.  The House was referred to one case only in which the Strasbourg court had considered article 9 of the Convention in a foreign case: Razaghi v Sweden (Application No 64599/01, 11 March 2003, unreported). The applicant resisted expulsion to Iran on a number of grounds arising from his adultery in Iran and his conversion to Christianity. He relied on article 2 and article 1 of the Sixth Protocol, on article 3, on article 6 and on article 9. The Court accepted that the complaint under article 3 raised issues which required examination on the merits but rejected the complaint under article 6 on the facts. The Court added:

"As regards the applicant's right to freedom of religion, the Court observes that, in so far as any alleged consequence in Iran of the applicant's conversion to Christianity attains the level of treatment prohibited by Article 3 of the Convention, it is dealt with under that provision. The Court considers that the applicant's expulsion cannot separately engage the Swedish Government's responsibility under Article 9 of the Convention."

It seems that the focus of the application was on article 3. It is not clear whether (as the respondents contended) the Court held that article 9 could never apply in a foreign expulsion case, or whether (as the appellants contended) the Court regarded the article 9 complaint as so inextricably linked with the article 3 complaint as to raise no separate issue.

    20.  In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

    21.  Seeking to perform that duty, I consider that the only possible answer to the question posed at the outset of this opinion is Yes. I have accepted the possibility of relying on article 2 in paragraph 15 above. I have questioned in paragraph 16 whether a claim based on article 4 alone might not succeed. The authority cited in paragraph 17 shows that the Court has not excluded the possibility of relying on article 6, and even article 5, while fully recognising the great difficulty of doing so and the exceptional nature of such cases. I do not think, on authority briefly cited in paragraph 18 and more fully discussed in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, that reliance on article 8 can be ruled out in principle. I find it hard to think that a person could successfully resist expulsion in reliance on article 9 without being entitled either to asylum on the ground of a well-founded fear of being persecuted for reasons of religion or personal opinion or to resist expulsion in reliance on article 3. But I would not rule out such a possibility in principle unless the Strasbourg court has clearly done so, and I am not sure it has. It is unnecessary for present purposes to consider other articles of the Convention. I would be inclined to accept, as the Court of Appeal decided in R (Holub) v Secretary of State for the Home Department [2001] 1 WLR 1359 and as Mr Blake QC conceded, that reliance could not in this context be placed on the right to education protected by article 2 of the First Protocol to the Convention, but this conclusion was resisted by Mr Rabinder Singh QC and it is unnecessary to decide the point.

    22.  In answering the agreed issue as I do in the foregoing paragraph, I differ from the conclusion of the Court of Appeal expressed in paragraph 64 of its judgment quoted in paragraph 4 above. That conclusion does not in my opinion reflect the current effect of the Strasbourg jurisprudence. The basis upon which a state may be held liable in a foreign case was explained by the Strasbourg court in the context of article 3 in Soering v United Kingdom (1989) 11 EHRR 439, paragraph 91, quoted in paragraph 10 above, and this explanation has been relied on by the Court in later cases such as Cruz Varas v Sweden (1991) 14 EHRR 1, paragraph 69, and Vilvarajah v United Kingdom (1991) 14 EHRR 248, paragraph 103. It is essentially the basis for which Mr Blake QC and Mr Gill QC for the appellants contended, and which they called the causation principle.

    23.  In resolving the issue expressed at the outset of this opinion, the primary source must be the Strasbourg jurisprudence. It is reassuring that the Human Rights Chamber for Bosnia and Herzegovina understood the effect of that jurisprudence much as I do: Boudellaa v Bosnia and Herzegovina (2002) 13 BHRC 297, paragraph 259. A similar approach was adopted by the Human Rights Committee of the United Nations, interpreting the International Covenant on Civil and Political Rights in ARJ v Australia (Communication No 692/1996, 11 August 1997, unreported), when it ruled:

"6.8  What is at issue in this case is whether by deporting Mr J to Iran, Australia exposes him to a real risk (that is, a necessary and foreseeable consequence) of a violation of his rights under the Covenant. States parties to the Covenant must ensure that they carry out all their other legal commitments, whether under domestic law or under agreements with other states, in a manner consistent with the Covenant. Relevant for the consideration of this issue is the State party's obligation, under article 2, paragraph 1, of the Covenant, to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. The right to life is the most fundamental of these rights.

6.9  If a State party deports a person within its territory and subject to its jurisdiction in such circumstances that as a result, there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, that State party itself may be in violation of the Covenant."

This is also the approach which the Supreme Court of Canada adopted when it said in Suresh v Minister of Citizenship and Immigration [2002] 1 SCR 3, paragraphs 53-54 (a torture case):

"53.  We discussed this issue at some length in Burns [2001] 1 SCR 283. In that case, the United States sought the extradition of two Canadian citizens to face aggravated first degree murder charges in the state of Washington. The respondents Burns and Rafay contested the extradition on the grounds that the Minister of Justice had not sought assurances that the death penalty would not be imposed. We rejected the respondents' argument that extradition in such circumstances would violate their s.12 right not to be subjected to cruel and unusual treatment or punishment, finding that the nexus between the extradition order and the mere possibility of capital punishment was too remote to engage s.12. We agreed, however, with the respondents' argument under s.7, writing that '[s]ection 7 is concerned not only with the act of extraditing, but also the potential consequences of the act of extradition' (para. 60 (emphasis in original)). We cited, in particular, Canada v Schmidt [1987] 1 SCR 500, at p 522, in which La Forest J. recognized that 'in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances'. In that case, La Forest J. referred specifically to the possibility that a country seeking extradition might torture the accused on return.

54.  While the instant case arises in the context of deportation and not extradition, we see no reason that the principle enunciated in Burns should not apply with equal force here."

    24.  While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, paragraph 91; Cruz Varas, paragraph 69; Vilvarajah, paragraph 103. In Dehwari, paragraph 61 (see paragraph 13 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a "near-certainty". Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, paragraph 113 (see paragraph 10 above); Drodz, paragraph 110; Einhorn, paragraph 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department [2002] IAT 702, [2003] Imm AR 1, paragraph 111:

"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".

    25.  I have largely accepted the appellants' arguments on principle. But even if it were assumed that article 9(1) of the Convention could be relied on to resist the appellants' expulsion to Pakistan and Vietnam respectively, they fall far short of showing facts capable of supporting such a claim, as I have held in paragraph 5 above. For these reasons, and also for those given by Lord Steyn and Lord Carswell, I would therefore dismiss both appeals.

LORD STEYN

My Lords,

    26.  In my view the Court of Appeal was right to dismiss the appeals of Mr Ullah, an Ahmadi preacher from Pakistan, and Miss Do, a Roman Catholic from Vietnam. Both entered the United Kingdom and claimed that they feared persecution if returned to their own countries. The Secretary of State refused their asylum claims. While there is discrimination on the ground of religion in Pakistan and Vietnam, I am satisfied that the lower courts were entitled to find that the threshold of what constitutes persecution under the terms of the United Nations Convention and Protocol on the Status of Refugees (1951) (Cmnd 9171) and (1967) (Cmd 3906) ("the Refugee Convention") was not satisfied by either appellant. They appealed to immigration adjudicators on the alternative ground that their removal to their own countries would constitute a breach of article 9 of the European Convention on Human Rights. Article 9 contains guarantees of freedom of thought, conscience and religion. The adjudicators and first instance judges decided that on the facts these alternative claims failed. In the case of Mr Ullah it was found that his preaching in Pakistan did not cause serious problems for him. In the case of Miss Do the circumstances in which she practised her faith in Vietnam did not differ significantly from those encountered by the other eight million Catholics in that country. In my view on the facts found by the adjudicators neither appellant came within a measurable distance of establishing that article 9 was engaged. The two cases were wholly unmeritorious.

The principal question of law

    27.  The starting point of the legal analysis of the Court of Appeal was that in making a decision to expel an alien account must be taken of article 3 of the ECHR. Article 3 contains the guarantee that no one shall be subjected to torture or to inhuman or degrading treatment. Using the two cases before it as the basis for a wide-ranging enquiry, the Court of Appeal then posed for itself the question whether a decision to expel an alien need ever be tested against any other guarantees contained in the ECHR: R (Ullah) v Special Adjudicator and Do v Immigration Appeal Tribunal [2003] 1 WLR 770. This was an ambitious undertaking requiring the Court of Appeal to focus on a number of fundamental rights under the ECHR which were not in issue without having before it the spectrum of circumstances which could arise in different contexts. The judgment of the court is, however, a comprehensive and careful one. It must be analysed in detail.

The conclusion of the Court of Appeal