R (Ullah) v Special Adjudicator [2004] UK HL26; [2004] 2 AC 323

Key points

  • The Ullah principle established by Lord Bingham defines the nature of the obligation to ‘take into account’ Strasbourg jurisprudence under s2(1) HRA 1998:  “the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less” at [20]

Facts

  • The appellants, an Ahmadi Preacher from Pakistan and a Roman Catholic from Vietnam entered the UK and claimed asylum, alleging fear of religious persecution
  • The appellants claimed that deportation would be a violation of their right to freedom of religion guaranteed under article 9 of the European Convention of Human Rights (ECHR)
  • The Court of Appeal had held that to uphold 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’”

Held (House of Lords)

  • Appeal dismissed
  • In order to rely on Article 9 of the ECHR, the appellants would have to prove that the interference with the right to freedom of religion was “flagrant”

Lord Bingham

Scope of s2 HRA 1998

  • ‘courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court…This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court’: [20] 
  • ‘It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.’: [20] 

Lord Carswell

  • ‘The adjective “flagrant” has been repeated in many statements where the [European Court of Human Rights] has kept open the possibility of engagement of articles of the Convention other than article 3 … the concept of a flagrant breach or violation may not always be easy for domestic courts to apply – one is put in mind of the difficulties which they have had in applying that of gross negligence’: [69]

Commentary

  • In cases following Ullah (e.g Re P (Northern Ireland), Horncastle and Hallam), Courts have held that there are circumstances in which they will depart from the application of Ullah