R v Special Adjudicator ex parte Ullah and Do (2002) and in R (Razgar) v SSHD (2004)
To what extent do the House of Lords’ decisions in R v Special Adjudicator ex parte Ullah and Do (2002) and in R (Razgar) v SSHD (2004) advance the interests of those seeking to rely on the Human Rights Act 1998 in order to avoid removal from the United Kingdom?
The UK Human Rights Act 1998 entered into force in October 2000. Filled with articles bestowing new rights enforceable before UK courts, at first blush it appeared that it would effectively contribute to the legal matrix established by the Refugee Convention and present those seeking asylum with additional means of challenging attempts at deportation.
Unfortunately, the Courts have thus far been relatively cautious in their interpretation and application of the European Convention on Human Rights (hereafter ‘ECHR’) in this context. This paper discusses two prominent and influential House of Lords cases which have expanded our understanding of the state and shape of human rights law in the United Kingdom today.
R v. Secretary of State for the Home Department (Appellant) ex parte Razgar
The European Convention on Human Rights holds out the prospect of assistance to immigrants seeking to avoid deportation on the humanitarian grounds of health, significant family considerations or a lack of resources. The issue of health, and in particular cases where health factors deleteriously interact with other aspects of private life in terms of ‘physical and moral integrity’, was addressed in Razgar by the House of Lords.
In Razgar, R claimed that a return to third country Germany would infringe his human rights. After suffering detention in Saddam Hussein’s Iraq he came to the UK via Germany harbouring a vulnerable mental state was fragile and sporadic suicidal thoughts. The Secretary of State concluded that his case was “manifestly unfounded” and sought his removal to Germany under the provisions of the Dublin Convention.
R’s case was founded on the bedrock of the decision of the Court in Bensaid v United Kingdom. On a majority decision at the House of Lords, the Secretary of State’s appeal was dismissed and it was found that R had a case worthy of consideration in alleging that his return to Germany was inappropriate.
It is submitted that Lord Bingham’s statement as to the ambit of Article 8 is instructive. He stated that:
“This judgment establishes, in my opinion quite clearly, that reliance may in principle be placed on Article 8 to resist an expulsion decision, even where the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough Article 8 may in principle be invoked. It is plain that “private life” is a broad term, and the Court has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the Court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life.”
The pertinent question is – exactly what kind of cases might succeed? Labouring the point that the Court of Appeal did not intend to sanction a threshold-test balanced on the putative standard of health care between the UK and other states, Lord Bingham indicated that the test should be onerous, stipulating that: ‘an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state’.
On the invocation of Article 8(1) on the grounds that there is interference with private life, the next key question is derived from Article 8(2). That question asks whether such interference 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?” Lord Bingham concluded that, in light of the fundamental nature of the power of sovereign states, subject to treaty commitments, to control the ‘entry and expulsion of aliens’ and given that pursuit of a cogent immigration policy is a core duty of any modern democratic government, deportation will be necessary in any case excluding those where there is mala fides or misfeasance on the part of officialdom. His Lordship ruled that:
“In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.”
It seems likely therefore that cases will be successful only where the measure taken against them is manifestly out of proportion to the object at issue. Lord Bingham indicated that once the proportionality question is ascertained, the courts will typically bow to the discretion of the executive. It is submitted that decisions taken under the legitimate management of immigration control will be proportionate in all but a tiny minority of truly exceptional situations, which will be identifiable only on a case by case basis. However, it is still the case that a real, active fear of returning home coupled with a risk of mistreatment at home could still trigger the ECHR.
R v. Special Adjudicator ex parte Ullah and Do v. Secretary of State for the Home Department
Ullah, a Pakistani man, claimed to have suffered religious persecution and social discrimination at the hands of Muslim extremists. Do, a Vietnamese woman, also claimed religious discrimination and poor treatment that, inter alia, impinged on her religious freedoms.
The high water mark of conservatism in this field was probably reached by Lord Phillips in his judgment when Ullah and Do reached the Court of Appeal. His Lordship stated the opinion that it was not the role of the ECHR to bestow rights on putative immigrants that could empower them to resist deportation. He argued that this conclusion could be imputed by the paucity of direct reference to immigration in the Convention, and by the lack of exemption provisions, which he asserted indicated that the legal framework had not been intended to be utilised by those seeking asylum at its inception. His logic was that sovereign nations would have been loathe to allow immigration control – a core responsibility of every state – to be short-circuited by human rights issues without an express and explicit statement of such a change in their legal systems.
It is submitted that by the late 1980s, in decisions such as Soering v United Kingdom which graphically illustrated that human rights law and principles had combined to ensure that an asylum seeker could no longer be deported if they could prove that they faced torture, or inhuman or degrading treatment or punishment, the European Court of Human Rights had indeed strayed into territory that the signatories had not originally foreseen. However, Lord Philips deemed that it was not for our domestic courts to go further than the European Court of Human Rights had so far done in stating that immigration control could be circumnavigated by reference to human rights breaches of insufficient substance to trigger Article 3.
His Lordship stated that where the Convention is raised on the grounds of the treatment that an applicant, refused the right to enter or remain, may face at the hands of the receiving state, and that treatment is not serious enough to sustain Article 3, then the domestic court is not obliged to recognise that any other article of the Convention is pertinent. Of course, where such treatment falls outside Article 3, there may be scenarios that merit the grant of exceptional leave to remain based on humanitarian grounds.
This restrictive view of the ambit of the ECHR was reviewed by the House of Lords. The raison d’etre of the interpretation given to the ECHR by Strasbourg was the fundamental contradiction between the Article 3 conditions and the base principles set down by the preambles to the Convention, namely that: ‘common heritage of political traditions, ideals, freedom and the rule of law.’ It was for the Law Lords to determine whether that so called heritage was malleable enough to allow the return of an asylum seeker to face poor treatment and possible abuse.
Lord Bingham ruled that it was wrong to conclude that established legal principles conspired to ensure that infringements of those rights beyond Article 3 could not be addressed by immigrants. He did however stipulate that a serious breach would be necessary: e.g. only “flagrant denial of a fair trial” would suffice for Article 6 to be invoked as a shield against deportation. Regarding the lesser, conditional rights (e.g. freedom of thought, conscience and religion, right to a private and family life, freedom of assembly), he stated that the definitive test should be whether “the right will be completely denied or nullified in the destination country.”
It is submitted that Lord Steyn properly found that, being absolute rights, the right to life (Article 2(1)) and the ban on forced labour and slavery (Article 4(1)), were also at the disposal of claimants. Moreover, he contended that a flagrant denial of Article 6 fair trial rights would be constituted where the ‘universal minimum standards’ set down in international human rights law are not met.
As it transpired, both appeals failed on their facts. The House of Lords ruled that neither party had suffered or indeed faced some future breach of their rights that could be considered flagrant. That said however, it is arguable that the decision is more benevolent to asylum seekers than the casual observer might conclude, given that the other Articles of the ECHR are now available to be pleaded over and above Article 3. Such arguments can be raised in initial applications and one-stop appeal notices, also at the IAT and before the senior courts.
It is for lawyers to earn their keep and acquire evidence to surpass the threshold if the test is deemed to be an onerous one. Once the coincidence of circumstance and principle yields such a conclusion, it seems likely that at least the most disadvantaged and abused litigants will prove successful in their claims.
Some Comments on Ullah and Do
Reading between and along the lines, it is abundantly clear that the leader of the Court of Appeal, the Master of the Rolls himself received a mild rebuke from the Law Lords in their judgment on these cases. Among many gloved comments, Lord Steyn suggested that the Court of Appeal decision had ignored “a significant body of decisions” from the European Court of Human Rights, and that it represented “an impoverished view of the role of a human rights convention”.
It is conceivable that these decisions may also have some ramifications refugee law. Lord Steyn soundly endorsed a ‘human rights’ centred approach to the meaning of ‘persecution’. This hints that at least flagrant breach of the primary and universally recognized rights will justify the conferment of refugee status on an individual. Furthermore, infringement of the conditional articles may indeed be pertinent to the issue of what may qualify under the Refugee Convention as ‘persecution’.
The House of Lords’ judgments in Razgar and Ullah and Do offer the human rights and legal communities an interesting commentary on the state of this convoluted and politically charged arena. Ullah and Do represents a more positive and proactive approach to the ECHR than that typically extended by the higher courts, recognising as it does that the prospect of a flagrant breach of an ECHR-protected right abroad may deter an asylum seeker’s deportation.
There is considerable irony in the observation that, in Ullah, an asylum seeker’s appeal was dismissed, but an interpretation of the ECHR was adopted which will significantly augment protection for asylum seekers; while in Razgar, it was the Secretary of State’s appeal that failed, but the ability of asylum seekers to remain in the UK on health grounds was dramatically restricted.
WORD COUNT 2096 (exc. Footnotes, inc. bibliography)
European Human Rights Law Review, Sweet & Maxwell
Textbook on International Human Rights Law, Smith, R, (2004), Oxford University Press
Asylum Law & Practice, Symes M and Jorro P, Butterworths (2003)
Human Rights and the End of Empire: Britain and the Genesis of the European Convention, Simpson A, Oxford University Press (2004)
Human Rights Law in the United Kingdom, Shorts E and Than C, Sweet & Maxwell (2001)
Application of ECHR rights in Asylum and Immigration, Symes M, (2004)
Civil Liberties & Human Rights, Fenwick H, Cavendish, (2002)
  UKHL 27.
 See for history, comment and full text:- http://www.irishrefugeecouncil.ie/factsheets/dublinconvention4.html.
 (2001) 33 EHRR 205.
 Lord Bingham, Lord Steyn and Lord Carswell concurred. Lord Walker and Baroness Hale offered more restrained minority speeches.
  UKHL 26.
 Such indeed was the case in regards to the Refugee Convention.
 (1989) 11 EHRR 439.
 His Lordship defined the test in paras. 21 and 24 of the Ullah and Do judgment. In general terms his Lordship endorsed the approach of the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department  IAT 702,  Imm AR 1. See para. 111.
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