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HOUSE OF LORDS |
SESSION 2003-04
[2004] UKHL 26
on appeal from: [2002] EWCA Civ 1856
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OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant)
Do (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
ON
THURSDAY 17 JUNE 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Carswell
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant)
Do (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
[2004] UKHL 26
LORD BINGHAM OF CORNHILL
My Lords,
1. The primary issue in these appeals, brought by leave of the Court of Appeal, is agreed to be:
Whether any article of the European Convention on Human Rights other than article 3 could be engaged in relation to a removal of an individual from the United Kingdom where the anticipated treatment in the receiving state will be in breach of the requirements of the Convention, but such treatment does not meet the minimum requirements of article 3 of the Convention.
Although the issue is expressed in this general way, the specific right in question in these appeals, which were heard together, is the right to freedom of thought, conscience and religion guaranteed by article 9 of the Convention and in particular the freedom "either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance".
2. Mr Ullah is a citizen of Pakistan and an active member of the Ahmadhiya faith. He arrived in this country from Karachi in January 2001 and applied for asylum, claiming to have a well-founded fear of persecution in Pakistan as a result of his religious beliefs. The Secretary of State dismissed his claim for asylum and held that Mr Ullah had not qualified for permission to remain in this country by reason of any article of the European Convention. Mr Ullah's appeal to an adjudicator was dismissed. The adjudicator found that he did not have a well-founded fear of persecution. She also found that although articles 9, 10 and 11 of the Convention could be engaged in a situation of this kind, Mr Ullah would suffer no serious infringement of these rights in Pakistan; the Secretary of State was acting lawfully in pursuance of the legitimate aim of immigration control; and his decision to remove Mr Ullah to Pakistan was proportionate to any difficulties he might face on his return. An application for judicial review of this decision was dismissed by Harrison J, who recognised the importance of the issues and gave permission to appeal.
3. Miss Do is a citizen of Vietnam and entered this country in November 2000. She applied for asylum, based on her fear of persecution as a practising Roman Catholic in Vietnam. The Secretary of State refused her application and concluded that she did not qualify for protection under any article of the Convention. On appeal an adjudicator upheld the dismissal of Miss Do's asylum claim and found that it would not be a breach of articles 3 and 5 of the Convention to remove her to Vietnam. The Immigration Appeal Tribunal dismissed an appeal against this decision, going on to hold that any interference there might be with Miss Do's activities as a religious teacher would not amount to a violation of her rights under article 9. She applied for, and was granted, permission to appeal to the Court of Appeal.
4. The Court of Appeal (Lord Phillips of Worth Matravers MR, Kay and Dyson LJJ) heard the appeals of Mr Ullah and Miss Do together and dismissed them: [2002] EWCA Civ 1856, [2003] 1 WLR 770. The court did not disturb the findings of fact made in either case. The importance of the decision lies in the court's statement of principle in paragraphs 63 and 64 of the judgment:
"63. For these reasons we hold that a removal decision to a country that does not respect article 9 rights will not infringe the 1998 Act where the nature of the interference with the right to practise religion that is anticipated in the receiving state falls short of article 3 ill-treatment. It may be that this does not differ greatly, in effect, from holding that interference with the right to practise religion in such circumstances will not result in the engagement of the Convention unless the interference is 'flagrant'.
64. This appeal is concerned with article 9. Our reasoning has, however, wider implications. Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage article 3, the English court is not required to recognise that any other article of the Convention is, or may be, engaged. Where such treatment falls outside article 3, there may be cases which justify the grant of exceptional leave to remain on humanitarian grounds. The decision of the Secretary of State in such cases will be subject to the ordinary principles of judicial review but not to the constraints of the Convention."
5. Counsel for both appellants sought to persuade the House that the interference with their article 9 rights which the appellants would suffer if returned to Pakistan and Vietnam respectively would be more serious than the adjudicators had found. I do not for my part accept this submission. I am not persuaded that the adjudicators erred in the facts they found or the inferences they drew. It follows that even if the legal question raised at the outset were resolved in favour of the appellants, this ruling would not prevent the removal of the appellants. To that extent the question raised is academic. But it is a question of legal and practical importance. It has been fully argued, with the benefit of valuable interventions on behalf of JUSTICE, Liberty and the Joint Council for the Welfare of Immigrants. The House should give such assistance as, on the present state of the Strasbourg authorities, it can. For this purpose it is necessary to return to first principles.
6. As Lord Slynn of Hadley recorded in R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41, [2002] 1 WLR 3131, paragraph 31:
"31. In international law the principle has long been established that sovereign states can regulate the entry of aliens into their territory. Even as late as 1955 the eighth edition of Oppenheim's International Law, pp 675-676, para 314 stated that: 'The reception of aliens is a matter of discretion, and every state is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory.' Earlier in Attorney General for Canada v Cain [1906] AC 542, 546, the Privy Council in the speech of Lord Atkinson decided:
'One of the rights possessed by the supreme power in every state is the right to refuse to permit an alien to enter that state, to annex what conditions it pleases to the permission to enter it and to expel or deport from the state, at pleasure, even a friendly alien, especially if it considers his presence in the state opposed to its peace, order, and good government, or to its social or material interests: Vattel, Law of Nations, book I, s 231; book 2, s 125.'
This principle still applies subject to any treaty obligation of a state or rule of the state's domestic law which may apply to the exercise of that control. The starting point is thus in my view that the United Kingdom has the right to control the entry and continued presence of aliens in its territory. Article 5(1)(f) seems to be based on that assumption."
This is a principle fully recognised in the Strasbourg jurisprudence: see, for example, Vilvarajah v United Kingdom (1991) 14 EHRR 248, paragraph 102; Chahal v United Kingdom (1996) 23 EHRR 413, paragraph 73; D v United Kingdom (1997) 24 EHRR 423, paragraph 46; Bensaid v United Kingdom (2001) 33 EHRR 205, paragraph 32; Boultif v Switzerland (2001) 33 EHRR 1179, paragraph 46. As these statements of principle recognise, however, the right of a state to control the entry and residence of aliens is subject to treaty obligations which the state has undertaken. Obviously relevant in this context are the 1951 Geneva Convention relating to the status of refugees and the 1967 Protocol to that Convention, giving a right of asylum to any person who
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."
That provision has, of course, been the subject of much detailed examination. But such examination is not called for here, since it has been held that the appellants do not fall within the provision, and the correctness of those decisions is not in issue before the House. It is enough to note that the focus of the Geneva Convention is on those who are not citizens of the country in which they seek asylum and who have no right to enter it or remain there save such as that Convention may give them.
7. By article 1 of the European Convention the contracting states undertook to secure "to everyone within their jurisdiction" the rights and freedoms defined in section 1 of the Convention. The corresponding obligation in article 2 of the International Covenant on Civil and Political Rights 1966 extends to all individuals within the territory of the state and subject to its jurisdiction, but the difference of wording is not significant for present purposes. Thus the primary focus of the European Convention is territorial: member states are bound to respect the Convention rights of those within their borders. In the ordinary way, a claim based on the Convention arises where a state is said to have acted within its own territory in a way which infringes the enjoyment of a Convention right by a person within that territory. Such claims may for convenience be called "domestic cases".
8. The European Convention as originally drafted made no express reference to immigration or extradition save in sanctioning (in article 5(1)(f)) "the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition". Those who negotiated the European Convention may have contemplated that member states' decisions on immigration and extradition would fall outwith the scope of the Convention. Such an argument on immigration was indeed put forward by Her Majesty's Government in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471: see paragraph 59. But the Commission rejected this interpretation, and so did the Court, which held in paragraph 60:
"Thus, although some aspects of the right to enter a country are governed by Protocol No 4 as regards States bound by that instrument, it is not to be excluded that measures taken in the field of immigration may affect the right to respect for family life under Article 8. The Court accordingly agrees on this point with the Commission."
The Commission had held (paragraph 59) that
"immigration controls had to be exercised consistently with Convention obligations, and the exclusion of a person from a State where members of his family were living might raise an issue under Article 8."
As this quotation makes plain, however, this was a domestic case: the applicants were wives settled here; they complained that their husbands had been refused leave to enter or remain; they alleged an interference with their family life here.
9. Domestic cases as I have defined them are to be distinguished from cases in which it is not claimed that the state complained of has violated or will violate the applicant's Convention rights within its own territory but in which it is claimed that the conduct of the state in removing a person from its territory (whether by expulsion or extradition) to another territory will lead to a violation of the person's Convention rights in that other territory. I call these "foreign cases", acknowledging that the description is imperfect, since even a foreign case assumes an exercise of power by the state affecting a person physically present within its territory. The question was bound to arise whether the Convention could be relied on to resist expulsion or extradition in a foreign case. It is a question of obvious relevance to these appeals, since the appellants do not complain of any actual or apprehended interference with their article 9 rights in the United Kingdom.
10. A clear, although partial, answer to this question was given in Soering v United Kingdom (1989) 11 EHRR 439, a case in which the applicant resisted extradition to the United States to stand trial in Virginia, contending that trial there would infringe his right to a fair trial under article 6 of the European Convention and that his detention on death row, if convicted and sentenced to death, would infringe his rights under article 3. Neither the conduct of the trial nor the conditions of detention would, of course, be within the control or responsibility of the United Kingdom. The Court did not reject the applicant's complaint under article 6 as ill-founded in principle, but dismissed it on the facts in paragraph 113 of its judgment:
"113. The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk."
11. The applicant's complaint under article 3 was discussed by the Court at much greater length, in paragraphs which call for citation:
"85. As results from Article 5(1)(f), which permits 'the lawful … detention of a person against whom action is being taken with a view to … extradition,' no right not to be extradited is as such protected by the Convention. Nevertheless, in so far as a measure of extradition has consequences adversely affecting the enjoyment of a Convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant Convention guarantee. What is at issue in the present case is whether Article 3 can be applicable when the adverse consequences of extradition are, or may be, suffered outside the jurisdiction of the extraditing State as a result of treatment or punishment administered in the receiving State.
86. Article 1 of the Convention, which provides that 'the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I,' sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to 'securing' ('reconnaître' in the French text) the listed rights and freedoms to persons within its own 'jurisdiction'. Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States. Article 1 cannot be read as justifying a general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention. Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular … These considerations cannot, however, absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction.
87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms. Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with 'the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society.'
88. Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard.
The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that 'no State Party shall … extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture.' The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention, that 'common heritage of political traditions, ideals, freedom and the rule of law' to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court's view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.
89. What amounts to 'inhuman or degrading treatment or punishment' depends on all the circumstances of the case. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases.
90. It is not normally for the Convention institutions to pronounce on the existence or otherwise of potential violations of the Convention. However, where an applicant claims that a decision to extradite him would, if implemented, be contrary to Article 3 by reason of its foreseeable consequences in the requesting country, a departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of the safeguard provided by that Article.
91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."
This is an important authority, strongly relied on by the appellants, first, for its statement of principle and, secondly, as showing that article 3 of the Convention at least can, on appropriate facts, be relied on in a foreign case.
12. The principle in Soering was followed in Chahal v United Kingdom (1996) 23 EHRR 413, a foreign case in which it was sought to deport an Indian citizen, believed to be a Sikh separatist, on grounds of his threat to national security. The Strasbourg court upheld the applicant's complaint, and held:
"80. The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees.
81. Paragraph 88 of the Court's above-mentioned Soering judgment, which concerned extradition to the United States, clearly and forcefully expresses the above view. It should not be inferred from the Court's remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State's responsibility under Article 3 is engaged.
82. It follows from the above that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security."
The Soering ruling was also followed in D v United Kingdom (1997) 24 EHRR 423, another foreign case and a strong decision, since the substantial treatment found to be capable of violating article 3 was neither the responsibility of the United Kingdom authorities (save for implementation of the decision to expel) nor of any intentional conduct on the part of the state to which he was to be deported. The Soering ruling has also been recognised, with differing outcomes on the facts, in foreign cases such as Cruz Varas v Sweden (1991) 14 EHRR 1, Vilvarajah v United Kingdom (1991) 14 EHRR 248, HLR v France (1997) 26 EHRR 29, Gonzalez v Spain (Application No 43544/98, 29 June 1999, unreported), Dehwari v Netherlands (2000) 29 EHRR CD 74 and Hilal v United Kingdom (2001) 33 EHRR 31. Given this weight of authority, the respondents have accepted that reliance may be placed on article 3 of the Convention in a foreign case, and the agreed issue stated at the outset of this opinion reflects that acceptance.
13. The respondents drew attention in argument to substantive differences between expulsion and extradition: such differences plainly exist, and may affect the application of the Soering principle. But the Strasbourg court has held the principle to be potentially applicable in either situation. In Cruz Varas v Sweden (1991) 14 EHRR 1, paragraph 70, it said:
"Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above [Soering] principle also applies to expulsion decisions and a fortiori to cases of actual expulsion ."
The Court has relied on this paragraph, directly or indirectly, in a series of later cases, among them Vilvarajah v United Kingdom (1991) 14 EHRR 248, paragraph 103; Chahal v United Kingdom (1996) 23 EHRR 413, paragraph 74; HLR v France (1997) 26 EHRR 29, paragraph 34; Ahmed v Austria (1996) 24 EHRR 278; Jabari v Turkey (2000) 9 BHRC 1, paragraph 38; and Hilal v United Kingdom (2001) 33 EHRR 31, paragraph 59.
14. The Strasbourg court has taken account of this jurisprudence when ruling on the territorial scope of the Convention. In Loizidou v Turkey (1995) 20 EHRR 99, paragraph 62, it said:
"62. In this respect the Court recalls that, although Article 1 sets limits on the reach of the Convention, the concept of 'jurisdiction' under this provision is not restricted to the national territory of the High Contracting Parties. According to its established case law, for example, the Court has held that the extradition or expulsion of a person by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention. In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory."
This ruling was elaborated in Bankovic v Belgium (2001) 11 BHRC 435, where a Grand Chamber of the Strasbourg court said, in paragraphs 67-68 of its judgment:
"67. In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the convention.
68. Reference has been made in the court's case law, as an example of jurisdiction 'not restricted to the national territory' of the respondent state (Loizidou v Turkey (preliminary objections) (1995) 20 EHRR 99 at para 62), to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under arts 2 and/or 3 (or, exceptionally, under arts 5 and/or 6) and hence engage the responsibility of that state under the convention (Soering v UK [1989] ECHR 14038/88 at para 91, Cruz Varas v Sweden ECHR 15576/89 at paras 69 and 70, and Vilvarajah v UK [1991] ECHR 13163/87 at para 103).
However, the court notes that liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state's competence or jurisdiction abroad (see also Al-Adsani v UK [2001] ECHR 35763 at para 39)."
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