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Published online by Cambridge University Press:  04 December 2019

Lewis Graham*
Pembroke College, University of Cambridge,


The current relationship between UK and Strasbourg is politically fraught, which presents inevitable challenges for both jurisdictions. This article will analyse how the Strasbourg Court has responded to these challenges when dealing with applications against the UK, particularly when an application is brought following determination by the UK Supreme Court. It will be argued that there is some evidence that the Strasbourg Court has recently been using the admissibility stage as a novel site for effecting strategic behaviour, in order to moderate and influence UK–Strasbourg relations. The effect of this recent inclination, and some possible justifications for it, will then be set out.

Copyright © The Author (2019). Published by Cambridge University Press for the British Institute of International and Comparative Law.

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I would like to express thanks to Joanna Bell, Jenny Boddy and Elise Maes for helpful comments on an earlier iteration of this article, to Ed Bates for the many stimulating discussions which eventually formed the basis of this piece, and to Judge Tim Eicke for his considered and respectful engagement with the issues raised herein. The AHRC generously provided funding during the period of research and writing.


1 P Pinto de Albuquerque, ‘Is the ECHR Facing an Existential Crisis?’ (Mansfield College, Oxford, 28 April 2017) <>.

2 F Cowell, ‘Understanding the Causes and Consequences of British Exceptionalism towards the European Court of Human Rights’ (2019) IJHR (online) <>; Greer, S and Slowe, R, ‘The Conservatives’ Proposals for a British Bill of Rights: Mired in Muddle, Misconception and Misrepresentation?’ (2015) 4 EHRLR 372Google Scholar; Ziegler, K, Wicks, E and Hodson, L, The UK and European Human Rights: A Strained Relationship? (Bloomsbury Publishing 2015) esp. Ch 3Google Scholar (Lord Kerr, ‘The Relationship Between the Strasbourg Court and the National Courts – As Seen from the UK Supreme Court’); Ch 4 (E Bates, ‘The UK and Strasbourg: A Strained Relationship – The Long View’) and Ch 7 (R Clayton, ‘Should the English Courts under the HRA Mirror the Strasbourg Case Law?’).

3 Unlike in other jurisdictions, admissibility decisions in the ECHR system are made public in much the same way their general judgments are. This makes them an ideal object of study.

4 With some noteworthy exceptions such as Gerards, J, ‘Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of Reasoning’ (2014) 14(1) HRLR 148Google Scholar. Often, the admissibility stage is examined in scholarship on ECtHR standing, eg Shelton, D, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’ (2016) 16 HRLR 303Google Scholar; Granata, S, ‘Manifest Ill-Foundedness and Absence of a Significant Disadvantage as Criteria of Inadmissibility for the Individual Application to the Court’ (2010) 20 Italian Yearbook of International Law 111Google Scholar; Tulkens, F, ‘The Link Between Manifest Ill-Foundedness and Absence of a Significant Disadvantage as Inadmissibility Criteria for Individual Applications’ (2010) 20 Italian Yearbook of International Law 169Google Scholar; Hampson, F, ‘The Concept of an ‘‘Arguable Claim’’ under Article 13 of the European Convention on Human Rights’ (1990) 39 ICLQ 891CrossRefGoogle Scholar.

5 For a much more incisive and in-depth history, see Bates, E, The Evolution of the European Convention on Human Rights (Oxford University Press 2010)CrossRefGoogle Scholar.

6 R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696 (HL).

7 eg as an aid to statutory interpretation: R v Chief Immigration Officer ex p Bibi [1976] 1 WLR 979, 984 (Denning MR).

8 Human Rights Act 1998, section 3; section 4.

9 ECHR Protocol 11. However, it is worth noting that significant Court judgments against the UK were handed down much earlier in the Court's timeline; the first was in 1975 (Golder v United Kingdom (1979–80) 1 EHRR 524, concerning prisoners’ access to courts), followed by two in 1978 (Ireland v United Kingdom (1979–80) 2 EHRR 25, on interrogation methods employed during The Troubles; Tyrer v United Kingdom (1979–80) 2 EHRR 1 on corporal punishment). Golder, Ireland and Tyrer were all significant cases in the Court's case law, alongside other early cases against the UK, such as Sunday Times v United Kingdom (1979–80) 2 EHRR 245 (media freedom of expression), Dudgeon v United Kingdom (1982) 4 EHRR 149 (1982) (criminalisation of homosexuality), Silver v United Kingdom (1983) 5 EHRR 347 (prisoner communication) and Malone v United Kingdom (1985) 7 EHRR 14 (communications interception).

10 See Bates (n 5).

11 Spano, R, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14(3) HRLR 487Google Scholar. For evaluation, see Huijbers, L, ‘The European Court of Human Rights’ Procedural Approach in the Age of Subsidiarity’ (2017) 6 CILJ 177CrossRefGoogle Scholar; and Kleinlein, T, ‘The Procedural Approach of the European Court of Human Rights: Between Subsidiarity and Dynamic Evolution’ (2019) 68(1) ICLQ 91CrossRefGoogle Scholar.

12 Spano, R, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law’ (2018) 18(3) HRLR 1Google Scholar.

13 N O'Meara, ‘Reforming the European Court of Human Rights: The Impacts of Protocols 15 and 16 to the ECHR’ in Ziegler, Wicks and Hodson (n 2).

14 Most notably, the judiciary: see Ndidi v United Kingdom, Appl No 41215/14, Decision of 14 September 2017; Big Brother Watch v United Kingdom, Appl No 58170/13, Judgment of 13 September 2018, [111].

15 Bratza, N, ‘The Relationship between UK Courts and Strasbourg’ (2011) 5 EHRLR 505Google Scholar; Lord Lester, ‘The European Court of Human Rights and the Human Rights Act: British Concerns’ [2012] 17 JR 1.

16 Bates, E, ‘Activism and Self-Restraint: The Margin of Appreciation's Strasbourg career… Its Coming of Age?’ (2016) 36(7) HRLJ 261, 271–4Google Scholar.

17 Hirst v United Kingdom (2006) 42 EHRR 41.

18 Othman v United Kingdom (2012) 55 EHRR 1.

19 This does not, of course, mean that the New Labour government was universally in favour of judicial approaches to human rights: see eg ‘Blunkett Rejects ‘‘Airy Fairy’’ Fears’ The Guardian (12 November 2001) <>.

20 ‘May: I'll Rip up Human Rights Laws That Impede New Terror Legislation’ The Guardian (6 June 2017) <>.

21 See eg Conservative Party, Protecting Human Rights in the UK (2014) and ‘Theresa May to Consider Axeing Human Rights Act after Brexit, Minister Reveals’ The Independent (18 January 2019) <>.

22 See, for example, Lord Rodger in Cadder v HM Advocate [2010] UKSC 43; [2010] 1 WLR 2601.

23 Lord Sumption, ‘The Limits of the Law’, 27th Sultan Azlan Shah Lecture, Kuala Lumpur (20 November 2013) <>. Many of those themes were repeated in his more recent Reith Lectures: see Sumption, JTrials of the State: Law and the Decline of Politics (Profile Books 2019)Google Scholar.

24 ‘The Limits of the Law’, ibid 7

25 ibid 12. There is also, remarkably, a suggestion that there is an Orwellian character to the Strasbourg enterprise at 11.

26 As well as Lord Sumption, above, see Hoffmann, Lord, ‘The Universality of Human Rights’ (2009) 125 LQR 416Google Scholar. There may be ‘[a] feared loss of control’ re Strasbourg taking over in at least some areas: Steele, J, ‘(Dis)owning the Convention in the Law of Tort’ in Lee, J (eds) From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Hart 2011)Google Scholar. However, Lord Dyson has pushed back against ‘an impression has been created that the entire judiciary is critical of the European Court of Human Rights’, saying that ‘This impression has been created by a small number of lectures given by a few senior judges. They have not claimed to speak on behalf of their colleagues or, so far as I am aware, anyone else. I believe that, as one would expect, there is a wide range of judicial views on this subject’ (Lord Dyson, ‘Are the Judges Too Powerful?’ UCL Bentham Association Presidential Address (13 March 2014) <>.

27 Although the UK is a vocal critic, it is certainly not the only one: GIEM SRL and Others v Italy, Appl Nos 828/06, 34163/07 and 19029/11, Judgment of 28 June 2018 [GC], Partly Concurring, Partly Dissenting Opinion of Judge Pinto de Albuquerque, [57]–[60].

28 The Committee of Ministers recently approved some very slight amendments by the UK to the blanket ban on prisoner voting which had previously been found unlawful by the Court. After 13 years of inaction and hostility to the judgment it is obvious why the Committee would be keen to approve these measures. Some have doubted whether these changes really do remedy the defects identified by the Court: E Adams, ‘Prisoners Voting Rights: Case Closed?’ UK Constitutional Law Blog (30 January 2019) available at: <>.

29 The ‘strategic model’ of judging has been put forth, largely by scholars working in the US context, to encompass such considerations: see Epstein, L and Knight, J, The Choices Justices Make (CQ Press 1998)Google Scholar

30 H Fenwick, ‘Enhanced Subsidiarity and a Dialogic Approach – Or Appeasement in Recent Cases on Criminal Justice, Public Order and Counter-Terrorism at Strasbourg Against the UK?’ in Ziegler, Wicks and Hodson (n 2).

31 That is, whether a State's chosen action, seeking to achieve a legitimate aim, was a proportionate means of doing so. Prime examples of a deferential approach to the UK include Animal Defenders v United Kingdom (2013) 57 EHRR 21 and Austin v United Kingdom (2012) 55 EHRR 14; see Fenwick (n 30) 202–4.

32 Ibrahim v United Kingdom [2017] CrimLR 877.

33 L Graham, ‘Petukhov v. Ukraine No. 2: Life Sentences Incompatible with the Convention, but Only in Eastern Europe?’ (Strasbourg Observers, 26 March 2019) <>.

34 ECHR art. 35.

35 Hampson (n 4), 896.

36 European Court of Human Rights, ‘Practical Guide on Admissibility Criteria’ (31 December 2018) <,> 59 and 61.

37 At the end of 2012, the number of pending cases was reported at 128,100. At the end of 2018, that figure was reported as 56,350: European Court of Human Rights, ‘Annual Report 2012’ <> and ‘Analysis of Statistics 2018’ <>.

38 Decisions are usually decided by 1, 3 or 7 judges. Most full Judgments are determined by a panel of 7 judges, and sometimes an enlarged Grand Chamber panel of 17 judges.

39 Gerards (n 4) 154.

40 Although not a common occurrence, sometimes a dissenting or concurring opinion in an ECtHR judgment can prove to be influential; the dissenting view in the case of Ostendorf v Germany (2013) 34 BHRC 738 was later taken up by the Grand Chamber in S v Denmark (2019) 68 EHRR 17.

41 Keller, H, Fischer, A and Kühne, D, ‘Debating the Future of the European Court of Human Rights after the Interlaken Conference: Two Innovative Proposals’ (2011) 21(4) EJIL 1025, 1046Google Scholar.

42 Tariq v United Kingdom (2018) 67 EHRR SE2.

43 FJM v United Kingdom (2019) 68 EHRR SE5.

44 Poshteh v United Kingdom, Appl No 78375/17, Decision of 27 November 2018.

45 Tariq v UK (n 42)

46 Nanopoulos, EEuropean Human Rights Law and the Normalisation of the Closed Material Procedure: Limit or Source?’ (2015) 78(6) MLR 913, 916–17CrossRefGoogle Scholar

47 Kelman, D, ‘Closed Trials and Secret Allegations: An Analysis of the ‘Gisting’ Requirement’ (2016) 80(4) JCrimL 264Google Scholar.

48 Tariq v Home Office [2012] 1 AC 452; [2011] UKSC 35.

49 Lord Brown called the claimant's submissions ‘absurd’: ibid, [88].

50 Lord Dyson opined that ‘much of the content of the European Convention on Human Rights is about striking balances. This is sometimes very difficult and different opinions can reasonably be held.’ ibid, [161].

51 ibid, [95]–[137].

52 Compare A v United Kingdom (2009) 49 EHRR 29 with IR v United Kingdom (2014) 58 EHRR SE14. Vanderman, Y, ‘The Right to a Fair Trial in Tariq v Home Office: Taking Blind Shots at a Hidden Target’ (2012) 17(1) JR 70, 75Google Scholar: ‘there are just as many passages from those decisions suggesting that A-type disclosure ought to be available absolutely as there are passages highlighting their context specific nature’.

53 In addition to Lord Kerr at the Supreme Court, both the Employment Appeal Tribunal and Court of Appeal also found for Mr Tariq: Tariq v Home Office [2010] ICR 223 (EAT); Tariq v Home Office [2010] EWCA Civ 462; [2010] ICR 1034 (Court of Appeal).

54 eg Beghal v United Kingdom Appl No 4755/16, Judgment of 28 February 2019.

55 See Goss, R, ‘To the Serious Detriment of the Public: Secret Evidence and Closed Material Procedures’ in Lazarus, L et al. , Reasoning Rights (Hart 2014)Google Scholar; J Jackson, ‘Justice, Security and the Right to a Fair Trial: Is the Use of Secret Evidence Ever Fair?’ [2013] PL 720.

56 Graham, L, ‘Tariq v United Kingdom: Out with a Whimper? The Final Word on the Closed Material Procedure at the European Court of Human Rights’ (2019) 25(1) EPL 43Google Scholar.

57 In particular, IR (n 52)

58 FJM v United Kingdom (n 43).

59 McDonald v McDonald [2016] UKSC 28; [2017] AC 273.

60 The importance of the case was acknowledged by the Council of Europe itself, where the case was deemed important because it ‘expressly acknowledged, for the first time’ the law relating to private evictions: European Court of Human Rights, ‘Annual Report 2018’, 108 <>.

61 Lees, E, ‘Article 8, Proportionality and Horizontal Effect’ (2017) 133 LQR 31Google Scholar; Nield, S, ‘Shutting the Door on Horizontal Effect: McDonald v McDonald’ (2017) 1 Conv 60Google Scholar.

62 Compare Di Palma v United Kingdom (1986) 10 EHRR CD149 with Zehentner v Austria (2015) 52 EHRR 22. See N Madge, ‘Small Earthquake in Bulgaria: Not Many Dead’ 19(4) JHL 61.

63 J Boddy and L Graham, ‘FJM v United Kingdom: The Taming of Article 8?’ (2019) 83(2) Conv 162, 167.

64 Vrzic v Croatia (2018) 66 EHRR 30

65 Boddy and Graham (n 63) 165–8.

66 ibid, 167, fn 60.

67 ibid, 167–8.

68 See also JA Pye (Oxford) v United Kingdom (2008) 46 EHRR 45.

69 Poshteh v United Kingdom (n 44)

70 Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36; [2017] AC 624.

71 The Supreme Court is under no direct obligation to follow the law of the Strasbourg Court: see Human Rights Act 1998, section 2. In this case, the established Strasbourg position was set out in Ali v United Kingdom (2015) 63 EHRR 20. The Supreme Court preferred to follow the House of Lords case of Ali v Birmingham City Council [2010] UKSC 8; [2010] 2 AC 39.

72 Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104.

73 A majority of judges seemed to take a similar approach in the later case of Hallam and Nealon v Secretary of State for Justice [2019] UKSC 2. cf. Lord Reed's powerful endorsement of the orthodox approach in that case at [172]–[175].

74 R v Horncastle [2009] UKSC 14; [2010] 2 AC 373.

75 AG Reference (No 69 of 2013) [2014] EWCA Crim 188; [2014] 1 WLR 3964.

76 Al-Khawaja v United Kingdom (2012) 54 EHRR 23; Vinter v United Kingdom (2016) 63 EHRR 1; Hutchinson v United Kingdom, Appl No 57592/08, Judgment of 17 January 2017 [GC].

77 Poshteh v UK (n 44) [36].

78 Poshteh v Kensington (n 70) [37].

79 European Court of Human Rights, ‘Forthcoming Judgments and Decisions 18-20.12.18’ <>.

80 Times Newspapers Ltd and Kennedy v United Kingdom, Appl No 64367/14, Decision of 13 November 2018; Kiani and Gulamhussein v United Kingdom, Appl Nos 2428/12 and 18509/13, Decision of 3 April 2018; Khaskar v United Kingdom, Appl No 2654/18, Decision of 3 April 2018.

81 McGill and Hewitt v United Kingdom, Appl Nos 7690/18 and 9348/18, Decision of 14 May 2019.

82 AA and FA v United Kingdom, Appl No 6796/16, Decision of 14 May 2019; Sumislawska and Zajic v United Kingdom, Appl No 14642/18, Decision of 11 September 2018.

83 LV v United Kingdom, Appl No 50718/16, Decision of 14 May 2019; FO v United Kingdom, Appl No 56699/11, Decision of 11 September 2018.

84 Chong and Others v United Kingdom, Appl No 29753/16, Decision of 11 September 2018.

85 Makarová v United Kingdom, Appl No 67149/17, Decision of 12 June 2018. Arguably, Garamukanwa v United Kingdom, Appl No 70573/17, Decision of 14 May 2019, also fits into this category.

86 Eiseman-Renyard v United Kingdom (2019) 68 EHRR SE12

87 R (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9; [2017] AC 256.

88 Making this case much closer to Horncastle v United Kingdom (2015) 60 EHRR 31, which, although an appeal from a domestic case which chose not to follow Strasbourg, was able to rely on the full-throttled examination of the issues in Al-Khawaja (n 76).

89 S v Denmark (n 40).

90 Beghal (n 54).

91 Catt v United Kingdom, Appl No 43514/15, Judgment of 24 January 2019.

92 Catt, ibid; Beghal (n 54).

93 Beghal, ibid. This was also the case in Big Brother Watch (n 14).

94 VM v United Kingdom (No 2), Appl No 62824/16, Judgment of 25 April 2019.

95 R (O) v Secretary of State for the Home Department [2016] UKSC 19; [2016] 1 WLR 1717.

96 M Amos, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28 EJIL 763, 783–4.

97 R (A) v Secretary of State for Health [2017] UKSC41; [2017] 1 WLR 2492.

98 R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21; The Times (29 May 2019).

99 In addition, lower courts have found it difficult to grapple with the Grand Chamber's judgment in Paposhvili v Belgium [2017] Imm. A.R. 867 concerning deporting individuals with medical conditions: see eg Secretary of State for the Home Department v EA [2017] UKUT 445 (IAC); [2018] Imm AR 249; AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64; [2018] 1 WLR 2933; MM (Malawi) v Secretary of State for the Home Department [2018] EWCA Civ 2482; [2019] HRLR 3. An appeal to the Supreme Court was granted in the case of AM on 28 November 2018.

100 Hallam and Nealon (n 73).

101 The Court's early case law concerning abortion, for example, consisted almost exclusively of admissibility decisions eg X v Austria, Appl No 7045/75, Decision of 10 December 1976; WP v United Kingdom, Appl No 8416/78, Decision of 13 May 1980; X v Denmark, Appl No 9974/82, Decision of 2 March 1983; H v Norway, Appl No 17004/90, Decision of 19 May 1992.

102 Kaiyam and Others v United Kingdom (2016) 62 EHRR SE13.

103 R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66; [2015] AC 1344.

104 The Supreme Court declined to view the issues at hand under either art 5(1) or art 5(4) but instead as a more holistic ‘ancillary’ obligation under art 5 generally: ibid, [37]–[38].

105 In fact, whilst the UKSC found that only some applicants suffered a breach of art 5, the ECtHR found that art 5 was not breached on the facts at all: ibid, [81]–[83]. The court was, however, not unanimous on this point.

106 Kaiyam v UK (n 102) para 72.

107 Brown v Parole Board for Scotland [2017] UKSC 69; [2018] AC 1

108 ibid, [31]–[44].

109 The court in Kaiyam was, after all, departing from a full Court judgment: James v United Kingdom (2013) 56 EHRR 1.

110 The most obvious British exponent is JAG Griffith; see Politics of the Judiciary (1st edn, Fontana 1977)Google Scholar.

111 There is an ongoing debate concerning the proper role of the ECtHR, particularly as to whether it should focus on achieving individual justice for each applicant or adopt a more systemic standard-setting role, amenable to compromise, and perhaps, strategy: K Dzehtsiarou and A Greene, ‘Restructuring the European Court of Human Rights: Preserving the Right of Individual Petition and Promoting Constitutionalism’ [2013] PL 710; S Greer and L Wildhaber, ‘Revisiting the Debate about ‘‘Consitutionalising’’ the European Court of Human Rights’ (2012) 12 HRLRev 655. The Strasbourg judges, however, appear to generally view the Court's role as the former: S Greer and S Wylde, ‘Has the European Court of Human Rights Become a ‘‘Small Claims Tribunal’’ and Why, If at All, Does It Matter?’ (2017) 2 EHRLR 145.

112 Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, [52].

113 Borg v Malta, Appl No 37537/12, Judgment of 12 January 2016, Partially Concurring, Partially Dissenting opinion of Judge Pinto de Albuquerque, [10].

114 Dialogue is still promulgated as an important principle by the Supreme Court: DA (n 98), [131] (Lord Hodge).

115 For a particularly severe example, see Hallam and Nealon (n 73), [85] (Lord Wilson).

116 R (Smith) v Secretary of State for Defence [2010] UKSC 29; [2010] 3 WLR 223, [199].

117 For a good example see the discussion of A (n 52) in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2009] 3 WLR 74.