Ullah v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeBARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL,LORD STEYN,LORD WALKER OF GESTINGTHORPE,LORD CARSWELL
Judgment Date17 Jun 2004
Neutral Citation[2004] UKHL 26

[2004] UKHL 26

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Carswell

Regina
and
Special Adjudicator
(Respondent)
ex parte Ullah (FC)
(Appellant)
Do (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
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'.

Other articles

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...

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