The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious faiths.
Held: A distinction was to be made between domestic cases involving actions within a convention country, and foreign cases which did not. Soering showed that in appropriate factual circumstances, a claimant could rely upon art 3 in a foreign case.
‘I find it hard to think that a person could successfully resist expulsion in reliance on article 9 without being entitled either to asylum on the ground of a well-founded fear of being persecuted for reasons of religion or personal opinion or to resist expulsion in reliance on article 3. But I would not rule out such a possibility in principle.’
Article 8 may be engaged in cases of a real risk of a flagrant violation of an individual’s article 8 rights on deportation, though a high threshold test will always have to be satisfied in non-article 3 cases. The Convention is an international instrument the correct interpretation of which can be authoritatively expounded only by the Strasbourg court.
Courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court. Lord Bingham said: ‘the Convention is an international instrument, the correct interpretation of which can be authoritatively founded by the Strasbourg courts.’
Lord Bingham of Cornhill, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
[2004] UKHL 26, Times 18-Jun-2004, [2004] 3 WLR 23, [2004] 2 AC 323, [2004] INLR 381, [2004] UKHRR 995, [2004] 3 All ER 785
House of Lords, Bailii
European Convention on Human Rights 3
England and Wales
Citing:
Appeal from – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Regina v Secretary of State for the Home Department Ex parte Saadi and others HL 31-Oct-2002
The applicants were Kurdish asylum seekers. The Home Secretary introduced powers to detain certain asylum seekers for a short period in order to facilitate the speedy resolution of their applications. Only those who it was suspected might run away . .
Cited – Attorney General for the Dominion of Canada v Cain PC 1906
Lord Atkinson said: ‘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 . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Vilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – Boultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Hilal v The United Kingdom ECHR 6-Mar-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; No violation of Art. 13; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award . .
Cited – Jabari v Turkey ECHR 11-Jul-2000
A ‘rigorous scrutiny’ was to be conducted of a claim that an individual’s deportation to a third country would expose him to treatment prohibited by Article 3, before it could be rejected.
Held: ‘If the State is to avoid breach of Article 3 by . .
Cited – Dehwari v The Netherlands ECHR 27-Apr-2000
This was a foreign case in Human Rights law terms, concerned with the applicant’s expulsion to Iran. His Art 2 claim failed on the facts. But the claim was not rejected in principle, and having referred to the case law on article 3 the Commission . .
Cited – Cruz Varas And Others v Sweden ECHR 20-Mar-1991
Hudoc No violation of Art. 3; No violation of Art. 8; No violation of Art. 25-1 ‘Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above [Soering] . .
Cited – Loizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
Cited – Ahmed v Austria ECHR 17-Dec-1996
ECHR Judgment (Merits and just satisfaction) Lack of jurisdiction (new complaint); Violation of Art. 3; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Cited – M A R v United Kingdom ECHR 1996
(Commission) The applicants complained under articles 5 and 6 of the Convention, of their expulsion from the United Kingdom.
Held: The complaints were admissible, and called for examination on the merits. (Later settled) . .
Cited – Ould Barar v Sweden ECHR 1999
The Court found the applicant’s complaint under article 4 (as well as his complaints under articles 2 and 3) to be inadmissible on the facts, but recognised ‘that the expulsion of a person to a country where there is an officially recognised regime . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – Moustaquim v Belgium ECHR 18-Feb-1991
The applicant was a Moroccan national who arrived in Belgium in 1965 when he was aged under 2. In 1984, nineteen years later, after a career of juvenile crime, he was deported, but the deportation order was suspended in 1989 and he returned to . .
Cited – Tomic v United Kingdom ECHR 14-Oct-2003
The applicant sought to resist his expulsion from the UK.
Held: ‘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 . .
Cited – Mamatkulov and Abdurasulovic v Turkey ECHR 6-Feb-2003
A retrospective complaint of extradition to Uzbekistan was made. The applicants sought to resist their extradition from Turkey to Uzbekistan, saying they would be tortured.
Held: Convention states must comply with orders made by the European . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Razaghi v Sweden ECHR 11-Mar-2003
The applicant resisted expulsion to Iran on a number of grounds arising from his adultery in Iran and his conversion to Christianity. He relied on article 2 and article 1 of the Sixth Protocol, on article 3, on article 6 and on article 9.
Cited – Horvath v Secretary of State for the Home Department HL 7-Jul-2000
When considering the fear of prosecution in an applicant for asylum, the degree of persecution expected from individuals outside the government was to be assessed in the context also of the attitude of the government of the country to such . .
Cited – Holub and another v Secretary of State for Home Department CA 20-Dec-2000
The claimants appealed against a refusal of their request for judicial review of the Secretary of State’s decision not to grant them exceptional leave to remain in the United Kingdom. If returned to Poland the daughter of the family would face . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Cited – Henao v Netherlands ECHR 24-Jun-2003
The applicant was a national of Colombia. While serving a prison sentence in Holland for a drugs offence he was diagnosed HIV-positive. He sought to resist expulsion to Columbia on Article 3 grounds.
Held: ‘ . . the Court considers that, . .
Cited – Devaseelan v Secretary of State for the Home Department IAT 2003
The tribunal asked as to the relevance of the possible mistreatment of the applicant if returned to his home country: ‘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 . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Einhorn v France ECHR 16-Oct-2001
The applicant had resisted extradition from France: ‘ . . 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 . .
Cited – Z v Secretary of State for the Home Department CA 2002
The court declined to rule out the possibility that it would be an infringement of a claimant’s human right to deport him, a known homosexual, to a country where he would be persecuted for it. . .
Cited by:
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Incorporated – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Government of the United States of America v Barnette and Montgomery (No 2) HL 22-Jul-2004
The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
Cited – Boughton, Regina (on the Application Of) v Her Majesty’s Treasury Admn 25-Jul-2005
The applicants sought to control the sums they paid by way of taxation so as not to contribute to non peaceful objects.
Held: Both English law and human rights jurisprudence would prevent the claim, and the application for a review failed. . .
Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Ahmad and Aswat v United States of America Admn 30-Nov-2006
The defendants appealed orders for their extradition. They were suspected of terrorist offences, and feared that instead of facing a trial, they would be placed before a military commission.
Held: The appeals failed. The court had diplomatic . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Murray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
Cited – Othman (Abu Qatada) (Jordan) v Secretary of State for the Home Department CA 9-Apr-2008
The claimant appealed an order for his deportation back to Jordan, saying that if returned there was a real risk that he would face a trial based on evidence obtained by torture.
Held: The appeal succeeded. A foreign national could not be . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
Cited – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
Cited – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Cited – Secretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
Cited – Bary and Another, Regina (on the Application of) v Secretary of State for the Home Department Admn 7-Aug-2009
The defendants resisted extradition to the US to face charges of conspiracy to murder US citizens, saying that as suspected terrorists the likely prison conditions in which they would be held would amount to inhuman or degrading treatment or . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Cited – Smith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Cited – Manchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
Cited – Elan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
Cited – Privacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights
Leading Case
Updated: 16 January 2022; Ref: scu.198186