Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant)
28. The Court of Appeal came to the following conclusion (p 791, para 64):
The Court of Appeal ruled out as a matter of law the possibility that any article other than article 3 could ever be engaged. It will be necessary to examine whether the principles of the ECHR, and the evolving jurisprudence of the ECtHR, justified this conclusion.Uncontroversial matters
29. There is much in the legal analysis of the Court of Appeal which is uncontroversial. The Court of Appeal emphasised the principle of territoriality expressed in article 1 of the ECHR: p 785, para 47. The notion of jurisdiction is essentially territorial. However, the ECtHR has accepted that in exceptional cases acts of contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the ECHR: Öcalan v Turkey (2003) 37 EHRR 238, 274-275, para 93; Bankovic v Belgium (2001) 11 BHRC 435. The effect of the decision of the ECtHR in Soering v United Kingdom (1989) 11 EHRR 439 was that the extraditing or deporting state is itself liable for taking actions the direct consequence of which is the exposure of an individual abroad to the real risk of proscribed treatment. The Court of Appeal rightly stated that Soering is an exception to the essentially territorial foundation of jurisdiction. It is important, however, to bear in mind that apart from specific bases of jurisdiction such as the flag of a ship on the high seas or consular premises abroad, there are exceptions of wider reach which can come into play. Thus contracting states are bound to secure the rights and freedoms under the ECHR to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad: Cyprus v Turkey (1976) 4 EHRR 482, at p 586, para 8. Moreover, the doctrine of positive obligations under certain guarantees of the ECHR may in exceptional cases require states to protect individuals from exposure to foreseeable flagrant risks of violations of core guarantees caused by expulsions: D v United Kingdom (1997) 24 EHRR 423.
30. The Court of Appeal stressed the public importance of maintaining immigration control in the United Kingdom. The Court of Appeal was right to do so. As a matter of international law states have the right to control the entry, residence and expulsion of aliens. This right is, however, subject to the treaty obligations under the Refugee Convention and the ECHR: Henao v The Netherlands, ECtHR (Application No 13669/03) (unreported) 24 June 2003. A consequence of this general principle is that, except in wholly exceptional circumstances (such as was visualised in D v United Kingdom, aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a contracting state in order to benefit from medical, social or other forms of assistance provided by the expelling state: Henao's case.
31. The Court of Appeal explained why article 3 of the ECHR could become engaged. The rationale is that "it would affront the humanitarian principles that underlie the Convention and the Refugee Convention for a state to remove an individual to a country where he or she is foreseeably at real risk of being seriously ill-treated": p 785, para 47. As far as it goes this proposition is unassailable. The Court of Appeal contented itself with saying that article 3 provides the test of such treatment. The potential scope of article 3 was helpfully explained by the ECtHR in Henao as follows:
The Refugee Convention
32. Three related matters were not discussed by the Court of Appeal but were raised in oral argument. The first was the link between what could constitute persecution under the Refugee Convention and fundamental rights under the ECHR. Specifically, a question was raised about the extent to which human rights may inform the meaning of persecution. In an illuminating analysis Professor Hathaway (The Law of Refugee Status (1991)) summarised the position as follows (at page 112):
This view has already been approved by the House on two previous occasions: Horvath v Secretary of State for the Home Department  1 AC 489, 495, per Lord Hope of Craighead; Sepet v Secretary of State for the Home Department  1 WLR 856, 862, para 7, per Lord Bingham of Cornhill. I would respectfully also endorse it.
Extradition and expulsion
33. The second point related to the distinction between extradition and expulsion. Undoubtedly the purpose of the two procedures is different. The procedures serve different public interests. But in the context of the possible engagement of fundamental rights under the ECHR the Strasbourg court has not in its case law drawn a distinction between cases in the two categories: see Cruz Varas v Sweden (1991) 14 EHRR 1, 34, para 70. For my part I would also not do so.
34. The third point is that nowhere in the judgment is there any direct discussion of the development by the ECtHR of positive obligations under the ECHR. The Convention is mainly concerned with what a state must not do. But for the purpose of rendering fundamental rights under the ECHR more effective, the ECtHR has developed certain positive obligations viz obligations which require states to take action. Professor Mowbray (The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, 2004, p 2) gave the following examples of recognised categories:
It is not possible to consider whether articles other than article 3 may become engaged without taking into account the possible impact of positive obligations under the ECHR on immigration decisions. It is a large subject, and one that was only briefly touched on in oral argument. I will, however, have to make some reference to it. A comprehensive discussion of the subject will have to await another day.
35. In its review of the decisions of the ECtHR the Court of Appeal observed "While the Strasbourg court has contemplated the possibility of such a step [viz the extension of the Soering principle to articles other than article 3] it has not yet taken it"(p 785, para 47). I understand this to be a view that even where the ECtHR ruled that other articles are engaged or may become engaged this does not amount to an authoritative precedent in the absence of a finding of a violation in the particular case. In my view this is too narrow an approach to the evolving jurisprudence of the ECtHR. Where it concludes that there was no breach of a convention right, the ECtHR may nevertheless rule on the reach of the right.
Three critical decisions
36. It will be useful as a starting point to examine how the Court of Appeal analysed three critical decisions. The Court of Appeal categorised Abdulaziz as follows (p 783, para 43):
The fact that the applicants were wives rather than husbands was one basis of the decision. The ECtHR observed (7 EHRR 471, 495, para 60):
It is clear, therefore, that the over-arching basis for the conclusion was that decisions in the field of immigration must respect fundamental rights under article 8.
37. The next case is Soering v United Kingdom (1989) 11 EHRR 439. Directly at issue was the question whether the extradition of the applicant to Virginia on a charge of capital murder could engage article 3. The ECtHR held (p 469, para 91):
The Court of Appeal analysed Soering as if it provided no authority that articles other than article 3 may be engaged. That is, however, not correct. The following passage in the judgment of the ECtHR, which was not cited or referred to by the Court of Appeal, demonstrates this:
There is a footnote (86) to the second quoted sentence. It states: "See, mutatis mutandis, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, paras 59-60 - in relation to rights in the field of immigration." The right engaged in Abdulaziz was, of course, article 8. In other words, the ECtHR made clear again that articles other than article 3 could be engaged. The issue identified in the third quoted sentence was answered in the affirmative in Soering: pp 467 - 468, para 88.
38. The consideration of Bensaid v United Kingdom (2001) 33 EHRR 205 by the Court of Appeal also needs to be examined. The court held that the removal to Algeria of a person suffering from schizophrenia involving a psychotic illness would not violate article 3 because it had not been shown on the facts that adequate healthcare was not available in Algeria. Dealing with the possible application of article 8 the ECtHR held (p 219, para 46):
The Court of Appeal said (pp 784 - 785, para 46):
The distinction in the last sentence is not founded on Strasbourg jurisprudence. In both cases, if the high threshold of showing a real risk of a flagrant breach is satisfied on the facts, the engagement of article 8 could in principle be based on the expulsion from the United Kingdom. In any event, the Court of Appeal doubted that article 8 could be engaged by referring to the possible exception of Bensaid v United Kingdom: p 785, para 47 with emphasis added. The doubt was not justified. Indeed, a differently constituted Court of Appeal in R (Razgar) v Secretary of State for the Home Department  EWCA Civ 840;  Imm AR 529, 538, para 20 held that "it is clear that the ECtHR considered that article 8 was engaged on the facts of that case [Bensaid] ".
39. Simply on the basis of the three decisions discussed so far there was, contrary to the Court of Appeal's view, a significant body of decisions of the ECtHR which demonstrate that in respect of immigration decisions articles other than article 3 may be engaged.
Other articles of the ECHR
40. It may now be useful if I embarked on my own brief tour d'horizon on the question whether in principle articles other than article 3 could become engaged in immigration decisions on the expulsion of aliens. Article 2(1) provides:
Like article 3 this provision is absolute and not subject to derogation in time of war or public emergency under article 15. The Court of Appeal underlined the central importance of article 3 in the scheme of the ECHR. But the right to life under article 2 is also of fundamental importance. If article 3 may be engaged it is difficult to follow why, as a matter of logic, article 2 could be peremptorily excluded. There may well be cases where article 3 is not applicable but article 2 may be: see Secretary of State for the Home Department v Kacaj  Imm AR 213 (a decision of the Immigration Appeal Tribunal), per Collins J. The positive obligation on member states to provide individuals with suitable protection against immediate threats to their lives from non-state actors abroad may be relevant, in exceptional circumstances, to an immigration decision: Osman v United Kingdom (1998) 29 EHRR 245. Another example could be D v United Kingdom (1997) 24 EHRR 423, which was admittedly a wholly exceptional case. It concerned the proposed expulsion to St Kitts of a person suffering from AIDS in an advanced degree. The ECtHR found that his expulsion would amount to a breach of article 3. It is, however, clear that but for this decision, the applicant would have succeeded under article 2: p 450, para 59. There are principled grounds for not drawing a bright-line between articles 2 and 3.
41. Article 4 provides:
Article 4(1) is absolute and not subject to derogation in time of war or public emergency. It is no doubt right that in the modern world a case alleging slavery is perhaps a little unlikely. A case asserting forced labour is less unlikely but, if it arises, would no doubt fall under article 3. But what if the applicant relied only on article 4? Is he to be turned away on the basis that article 4 cannot as a matter of legal principle be engaged? Surely that would be contrary to the spirit of a human rights convention.
42. Article 5(1) provides:
Then follows a list of cases in which a person may be deprived of his liberty, eg after conviction. For present purposes article 5(4) is also relevant. It provides:
These are qualified guarantees and they are subject to derogation in times of war and public emergency.
43. In terms of the maintenance of the rule of law, which underlies all human rights instruments, article 5 is of great importance. Imagine a case of intended expulsion to a country in which the rule of law is flagrantly flouted, habeas corpus is unavailable and there is a real risk that the individual may face arbitrary detention for many years. I could, of course, make this example more realistic by citing the actualities of the world of today. It is not necessary to do so. The point is clear enough. Assuming that there is no evidence of the risk of torture or inhuman or degrading treatment, is the applicant for relief to be told that the ECHR offers in principle no possibility of protection in such extreme cases? I would doubt that such an impoverished view of the role of a human rights convention could be right.
44. Article 6(1) provides:
This is a qualified right and it is subject to derogation in time of war or public emergency. Moreover, in deciding what amounts to a fair trial the triangulation of interests of the accused, the victim and the public interest may require compromises, eg to protect children in abuse cases, women in rape cases, and national security. On the other hand, there are universal minimum standards. It is important to bear in mind the status of the right to a fair trial. It is a universal norm. It requires that we do not allow any individual to be condemned unless he has been fairly tried in accordance with law and the rule of law. The guarantee of a fair trial is a core value under the ECHR. In Einhorn v France (decided by the ECtHR (Application No 71555/01) (unreported) 16 October 2001) which was not cited in the Court of Appeal, the Strasbourg court summarised the position. It observed (para 32):
This was said in the context of extradition but, on the principles laid down by the ECtHR, the same would apply in an expulsion case. In Einhorn, as in the earlier cases, no violation was found established. That cannot, however, affect the binding force of the Strasbourg jurisprudence on the point. It can be regarded as settled law that where there is a real risk of a flagrant denial of justice in the country to which an individual is to be deported article 6 may be engaged.
45. Article 7 provides:
This is among the first tier of core obligations under the ECtHR. It is absolute and non derogable. It is not likely to arise often in the context of immigration decisions to expel aliens. It could, however, arise. Bearing in mind the principles laid down by the ECtHR in respect of extradition and expulsion involving a real risk of a flagrant violation of fair trial rights, the same must be the case in respect of this obligation.
46. Article 8 provides:
Article 8 contains qualified guarantees, which are derogable in time of war and public emergency. On the other hand, the European jurisprudence make clear that it enshrines core values.
47. It has already been explained how in the important decisions of Abdulazziz and Bensaid the ECtHR accepted that extradition and expulsion may in cases of a real risk of a flagrant violation of the guarantee of family or private life engage article 8. Moustaquim v Belgium (1991) 13 EHRR 802 involved an application of these principles. Boultif v Switzerland (2001) 33 EHRR 1179 was decided after Bensaid. An Algerian had entered Switzerland in 1992. In 1993 he married a Swiss citizen. In 1997 he was sentenced to two years imprisonment for robbery. In 1998 the Swiss authorities refused to renew his residence permit. He was expelled. He brought a claim under article 8. The ECtHR held:
Perhaps a little surprisingly the ECtHR found a violation of article 8 and ordered a modest sum to be paid by way of just satisfaction. Another possible field of application could be the expulsion of an alien homosexual to a country where, short of persecution, he might be subjected to a flagrant violation of his article 8 rights. In Z v Secretary of State for the Home Department  Imm AR 560 this point came before the Court of Appeal. Schiemann LJ (with whom the other members of the court agreed) was not prepared to rule out such an argument. In my view he was right not to do so. Enough has been said to demonstrate that on principles repeatedly affirmed by the ECtHR article 8 may be engaged in cases of a real risk of a flagrant violation of an individual's article 8 rights.
48. Now I turn to a cluster of qualified guarantees, viz article 9 (Freedom of thought, conscience and religion), article 10 (Freedom of expression), article 11 (Freedom of assembly and association) and article 14 (Prohibition of discrimination). It is easy to see how these articles could be relevant to the question of what may constitute persecution under the Refugee Convention. Beyond such cases it is less easy to visualise the application of any of these articles to a decision to expel an alien. The jurisprudence of the Strasbourg court does not provide much help. On the other hand, the possible engagement of these articles has not been ruled out. I would also not rule out their possible application in the field of immigration decisions. Saying never in law often requires courts to swallow their words in circumstances not previously contemplated.