Case No. UKUT-00286-(IAC)

39. In Ullah and Do, R (on the Application of) v Special Adjudicator [2004] UKHL 26, the specific right in question in the conjoined appeals was 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". 40. Mr Ullah had applied for asylum, claiming that, as an active member of the Ahmadhiya faith, he had a well-founded fear of persecution in Pakistan as a result of his religious beliefs. His asylum claim failed. He also relied on Article 9 but this, too, was rejected by the Adjudicator. She 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. 41. The other appellant, Miss Do, was a citizen of Vietnam and entered the United Kingdom in November 2000. She applied for asylum, based on her fear of persecution as a practising Roman Catholic in Vietnam. 42. The House of Lords drew a distinction between what Lord Bingham defined as ‘domestic cases’ and ‘foreign cases’ in which in the latter category it was not claimed that the state had violated or would 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. Although Article 1 of the Convention provides that the signatories shall secure to everyone within their jurisdiction the defined rights and freedoms, it sets a territorial limit on the reach of the Convention. In particular, the Convention does not govern the actions of other states, nor does it require the signatories to impose Convention standards on other States. Thus, 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. 43. Ullah and Do , as is readily apparent, were ‘foreign cases’. The Court of Appeal had concluded at paragraph 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." 44. The Court of Appeal ruled out as a matter of law the possibility that any Article other than Article 3 could ever be engaged. The crucial issue in the House of Lords was whether, in a foreign case, reliance might be placed on any article of the Convention other than Article 3, and in particular whether reliance may be placed on Article 9. 45. Having examined the nature of the rights conferred by the Convention, the House of Lords decided that the Court of Appeal was in error in making the categorical statement that in foreign cases it was only Article 3 that had to be considered. Instead, the correct approach was a more stringent approach, namely, a test involving whether the returnee was at risk of a flagrant denial or gross violation. It was this test that had been adopted 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, 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. 46. Having reviewed the case law, Lord Steyn concluded in paragraph 50 by stating: It will be apparent from the review of Strasbourg jurisprudence that, where other Articles may become engaged, a high threshold test will always have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other Articles could become engaged. 47. In the appeal before me, the Senior Presenting Officer, Mr Kandola, relies upon the high threshold test when the appellant is relying upon a violation of his human rights where Article 9 is engaged. This is, however, misplaced in the cases of a domestic claim, that is, a claim which is based on an allegation that his or another’s human rights will be violated in the United Kingdom by his removal. Nor is it necessary to impose such a high threshold if and when the test is one of proportionality because in such a case the competing interests of the community at large in enforcing immigration control and the interests of the individuals or the religious community affected can be balanced.