HOUSE OF LORDS
 UKHL 26
on appeal from:  EWCA Civ 1856
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)
THURSDAY 17 JUNE 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
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)
 UKHL 26
LORD BINGHAM OF CORNHILL
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".
"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."
"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  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.
"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.
"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."
"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.
"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.
"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.
"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  ECHR 14038/88 at para 91, Cruz Varas v Sweden ECHR 15576/89 at paras 69 and 70, and Vilvarajah v UK  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  ECHR 35763 at para 39)."
"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.
"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.
"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.
"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  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.
"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.
"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  1 SCR 3, paragraphs 53-54 (a torture case):
"53. We discussed this issue at some length in Burns  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  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."
"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".
The principal question of law
The conclusion of the Court of Appeal
"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."
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.
"While it is true that article 3 has been more commonly applied by the Court in contexts where the risk to the individual of being subjected to ill-treatment emanates from intentionally inflicted acts by public authorities or non-state bodies in the receiving country, the Court has, in the light of the fundamental importance of article 3, reserved to itself sufficient flexibility to address the application of that article in other contexts which might arise. It is not, therefore, prevented from scrutinising an applicant's claim under article 3 where the risk that he runs of inhuman or degrading treatment in the receiving country is due to factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that article. To limit the application of article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances of the case to rigorous scrutiny, especially the applicant's personal situation in the expelling state (see Bensaid v the United Kingdom, no. 44599/98, paras 32 and 34, ECHR 2001-I)."
The Refugee Convention
"In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community."
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
"examples include to investigate a killing, to protect vulnerable persons from serious ill-treatment inflicted by others, to provide arrested persons with a prompt explanation of the reasons for their arrest, to provide free legal assistance for impecunious criminal defendants, to provide legal recognition of the new gender acquired by transsexuals who have successfully completed gender re-assignment treatment and to deploy reasonable police resources to protect media organisations from unlawful violence directed at curbing the legitimate exercise of free expression."
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.
Three critical decisions
"In the leading case of Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 applicants living within this jurisdiction complained that their article 8 rights were infringed because their husbands were not permitted entry in order to join them. The United Kingdom argued that neither article 8 nor any other article of the Convention applied to immigration control. In rejecting this argument the Strasbourg court remarked that the applicants were not the husbands but the wives and that they were not complaining of being refused leave to enter or remain in the United Kingdom, but as persons lawfully settled in the country of being deprived or threatened with deprivation of the company of their spouses."
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):
"The applicants are not the husbands but the wives, and they are complaining not of being refused leave to enter or remain in the United Kingdom but, as persons lawfully settled in that country, of being deprived (Mrs Cabales), or threatened with deprivation (Mrs Abdulaziz and Mrs Balkandali), of the society of their spouses there.
Above all, the Court recalls that the Convention and its Protocols must be read as a whole; consequently a matter dealt with mainly by one of their provisions may also, in some of its aspects, be subject to other provisions thereof. 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."
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.
"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."
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:
"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."
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.
"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 Court of Appeal said (pp 784 - 785, para 46):
"Part of the reasoning of the Strasbourg court suggests that the treatment that a deportee is at risk of experiencing in the receiving state might so severely interfere with his article 8 rights as to render his deportation contrary to the Convention. The more significant article 8 factor was, however, the disruption of private life within this country. There is a difference in principle between the situation where article 8 rights are engaged in whole or in part because of the effect of removal in disrupting an individual's established enjoyment of those rights within this jurisdiction and the situation where article 8 rights are alleged to be engaged solely on the ground of the treatment that the individual is likely to be subjected to in the receiving state."
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] ".
Other articles of the ECHR
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
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.
"(1) No one shall be held in slavery or servitude.
(2) No one shall be required to perform forced or compulsory labour."
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.
"Everyone has the right to liberty and security of person."
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:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
These are qualified guarantees and they are subject to derogation in times of war and public emergency.
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
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):
" … the Court reiterates 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 (see the Soering judgment cited above, p 45, § 113, and, mutatis mutandis, the Drozd and Janousek v France and Spain judgment of 26 June 1992, Series A no 240, p 34, para 110)."
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.
"(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
(2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."
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.
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
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.
"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'".
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.
LORD WALKER OF GESTINGTHORPE
BARONESS HALE OF RICHMOND
"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and 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) Freedom to manifest one's religion shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
The application was dismissed by Harrison J, who was prepared to accept that article 9 could in principle be engaged but held that only a flagrant denial of the rights contained in that article would suffice to enable the appellant to resist being returned to Pakistan, a test which was not satisfied on the facts of the case.
"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".
This conclusion was strongly attacked by counsel for the appellants and the interveners. For the reasons set out in the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Steyn, I agree that it cannot be upheld, and I propose to explore fairly shortly some aspects of the grounds for so deciding.
"it is an affront to fundamental humanitarian principles to remove an individual to a country where there is a real risk of serious ill-treatment, even though such ill-treatment may not satisfy the criteria of persecution under the Refugee Convention. Article 3 provides the test of such treatment".
"To date, with the possible exception of Bensaid v United Kingdom, the application of this extension has been restricted to article 3 cases".
It was correct to state that the only actual decisions applying the extension were Soering v United Kingdom and Chahal v United Kingdom, both article 3 cases. But there is a strong current of authority contained in statements made by the ECtHR to the effect that other articles could be engaged. Lord Bingham of Cornhill has set out in his opinion the roll-call of Strasbourg cases in which this possibility has been accepted by the Court, and I gratefully adopt this without repeating it. Both Lord Bingham and Lord Steyn have set out reasons why in principle articles 2, 4, 5, 7 and 8 could be engaged in appropriate cases, and I respectfully agree with their reasons and conclusions. I am myself satisfied that a fair reading of the Strasbourg cases requires a national court to accept that these articles could possibly be engaged and that the exception to the territoriality principle is not confined to article 3. There does not appear to be any conceptual reason why article 9 should not be capable in principle of engagement, although I find it difficult to envisage a case, bearing in mind the flagrancy principle to which I am about to refer, in which there could be a sufficient interference with the article 9 rights which does not also come within the article 3 exception. It may be for this reason that the ECtHR appeared in Razaghi v Sweden (Application No 64599/01) (unreported) 11 March 2003 to reject the possibility of engagement of article 9, although, as Lord Bingham of Cornhill has pointed out, the basis of the Court's ruling concerning article 9 is not entirely clear. For present purposes I think it sufficient to say that I would not rule it out.
"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."