R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598; [2003] UKHRR 76
The Court of Appeal dismissed a request to compel diplomatic action on behalf of a British detainee at Guantanamo Bay. It nevertheless recognised that the Foreign Office’s response to a request for assistance could, within limits, be subject to judicial review.
Facts
Feroz Ali Abbasi, a British national, was captured by United States forces in Afghanistan and transferred to Guantanamo Bay in January 2002. By the hearing, he had been detained for eight months without access to a court, tribunal or lawyer. His mother brought proceedings on his behalf and was herself the second claimant.
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The claim sought to require the Foreign Secretary to make representations to the United States or take other appropriate action, or at least explain the response to the request for assistance. The central complaint concerned Abbasi’s inability to challenge the lawfulness of his detention. It was not necessary to argue that there could be no lawful grounds for holding him.
The Foreign Office’s evidence described visits to British detainees and discussions with United States officials, including at Foreign Secretary level. It stressed that decisions about the timing and form of representations involved sensitive diplomatic and national-security judgments.
The Court of Appeal had granted permission for judicial review and retained the substantive application for its own determination.
Issues
The court considered whether it could examine the apparent violation of fundamental rights by a foreign state, whether the British government owed Abbasi an enforceable duty of diplomatic protection, and how far its response to his request could be reviewed.
Reasoning
The detention and the court’s role. The court rejected an absolute rule preventing it from considering a foreign state’s conduct. Where established principles of international law and fundamental rights were involved, it could express a view where appropriate. It approached Abbasi’s position as apparent arbitrary detention in a legal black hole because he could not have its legality independently tested.
This did not establish that detention as an alleged enemy combatant was necessarily unjustified. Nor could the English court order the United States to release him: that government was not a party, and an English order would not bind it. The court also recognised that the United States appellate courts had yet to resolve the relevant jurisdictional questions.
No enforceable right to diplomatic intervention. The authorities did not establish a duty requiring the British government to protect a citizen abroad through diplomatic action. The European Convention on Human Rights and Human Rights Act did not supply that duty here. British nationality alone did not place Abbasi within United Kingdom jurisdiction for Convention purposes; no relevant British control over him or responsibility for the detention had been established.
A limited legitimate expectation. The Foreign Office’s published policy did, however, support an expectation that a request for assistance would be considered, with relevant factors taken into account. These included the nature and seriousness of the alleged injustice. That expectation did not guarantee representations, a particular diplomatic strategy or a successful outcome.
The fact that the power came from the royal prerogative did not by itself exclude judicial review. Its subject matter mattered. Irrationality or departure from a legitimate expectation could make a response reviewable, but the court could not decide foreign policy for ministers. A refusal even to consider a qualifying request could justify an order requiring consideration. Whether reasons or anything further could be required depended on the circumstances.
Outcome and significance
The application was dismissed. The evidence showed that Abbasi’s request had been considered and that discussions with the United States were taking place. He could not reasonably expect more in these circumstances. Requiring disclosure of the government’s legal assessment or diplomatic discussions could undermine those discussions, while ordering particular representations would intrude into foreign policy.
The case therefore distinguished judicial supervision of the decision-making process from control over diplomatic choices. The court’s serious concern about detention without access to a tribunal did not entitle it to dictate the Foreign Secretary’s response.
