R v Special Adjudicator, ex parte Ullah [2004]

R v Special Adjudicator, ex parte Ullah [2004] UKHL 26, also known as Do v Secretary of State for the Home Department [2004], clarifies the obligation under Section 2(1) of the Human Rights Act 1998 (HRA) to take into account the jurisprudence of the European Court of Human Rights (Strasbourg Court). Lord Bingham articulated the mirror principle that the duty of UK national courts is to align with the evolving jurisprudence of the Strasbourg Court: 'no more, but certainly no less'. This principle ensures that the UK courts keep pace with the interpretations of the European Convention on Human Rights (ECHR) as they develop, without expanding beyond or restricting the rights set out in the Convention.

The appellants, Mr Ullah and Miss Do, sought to invoke Article 9 of the ECHR, which protects the right to freedom of thought, conscience, and religion. They argued that deportation would violate their rights under this Article. The lower courts rejected their arguments, holding that deporting a person to a country where their rights under Article 9 would be violated does not constitute a breach of Article 3, which prohibits torture or inhuman or degrading treatment. As a result, deportation to such a state would not be prohibited on the grounds of an Article 9 violation.

The central issue was whether an individual could be deported from the United Kingdom to a country known for human rights abuses or whether asylum could be denied when the applicant was from such a country. The Court of Appeal had previously ruled that such interference with the right to practice religion would only engage the Convention if the interference was 'flagrant'. The House of Lords dismissed the appeal, holding that to rely on Article 9 of the ECHR, the appellants would need to demonstrate that the interference with their freedom of religion was flagrant. This high threshold was not met in this case.

Lord Bingham elaborated on the scope of Section 2 of the HRA 1998, emphasising that UK courts should generally follow the clear and consistent jurisprudence of the Strasbourg Court unless special circumstances arise. He reasoned that this reflects the international nature of the Convention, which should be interpreted uniformly across member states, and the Strasbourg Court is the authoritative body for such interpretation. He noted that while member states could provide more generous rights than those guaranteed by the Convention, these should not stem from national courts' interpretation of the Convention but from domestic legislative actions. The duty of national courts is to keep in line with the evolving Strasbourg jurisprudence: 'no more, but certainly no less'.

Lord Carswell discussed the application of the term 'flagrant', which has often been used by the Strasbourg Court to signal the engagement of Convention rights beyond Article 3. He noted the difficulty domestic courts might face in applying the concept of a 'flagrant' violation, drawing a parallel to the complexities in determining gross negligence.

The judgment delivered by Lord Bingham is constitutionally significant, particularly for its articulation of the Ullah principle or mirror principle. This principle interprets Section 2 of the Human Rights Act 1998 (HRA), stating that UK courts should, barring special circumstances, follow any clear and consistent jurisprudence of the Strasbourg Court. Lord Bingham emphasised the need for UK courts to align their interpretations of the ECHR with those of Strasbourg to maintain uniformity across states party to the Convention. This principle reinforces the notion that, while UK courts have the duty to take Strasbourg jurisprudence into account, they must do so in a manner that neither exceeds nor falls short of the established Strasbourg standards.