R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another  EWCA Civ 1279
Discrimination; nationality; Guantanamo; human rights
The first three claimants were imprisoned in Guantanamo Bay. Having been previously resident in the UK, they held indefinite leaves to remain, although none were British nationals. The rest of the claimants were members of the first three’s families. The Secretary of State declined to request the release and return of the first three claimants.
The claimants sought judicial review of the Secretary of State’s decision, arguing that she unlawfully discriminated against them on the basis of their lack of British nationality and breached their legitimate expectations. They relied on ss. 1(1)(a) and 19B(1) of the Race Relations act 1976 s well as certain rights scheduled to the Human Rights Act 1998. Referring to the Refugee Convention, they also claimed that the Secretary of State could have made state-to-state claims in respect of non-nationals as well.
The Court of Appeal dismissed the claimant’s case. The Secretary of State did not commit direct racial discrimination contrary to the 1976 Act as her decision was not based on race. As a matter of international law, the UK could not protect non-nationals by way of a state-to-state claim – i.e. the claimants’ situation was materially different from that of those entitled to such protection. Secondly, although the case did engage some rights contained in the Human Rights Act 1998, for the same reasons as the 1976 Act, they were not violated. In any case, the interference with the claimants’ rights was the consequence of the actions of another state (the USA) and not the UK – so the UK could not be held responsible. Finally, the conduct of foreign relations was not (normally) justiciable and, as a result, it is not for a court to order the Secretary of State to alter her decision as to how she would negotiate with the USA upon such delicate issue like the release of prisoners from Guantanamo Bay.
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