R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs and another [2006] EWCA Civ 1279
Discrimination; nationality; Guantanamo; human rights
(313 words)
Facts
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.
Issues
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.
Decision/Outcome
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.
Updated 20 March 2026
This case summary accurately reflects the Court of Appeal’s decision in R (Al Rawi and others) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279. The legal principles described — concerning direct racial discrimination under the Race Relations Act 1976, the limits of diplomatic protection under international law, the engagement of Human Rights Act 1998 rights, and the non-justiciability of foreign relations decisions — remain accurate as a description of that judgment.
Readers should note some broader legislative context. The Race Relations Act 1976 has since been repealed and consolidated into the Equality Act 2010, which now governs discrimination law in Great Britain. The provisions of the 1976 Act discussed in this case (ss. 1(1)(a) and 19B(1)) are not directly replicated in identical form, though equivalent protections exist under the 2010 Act. This does not affect the historical accuracy of the case summary but is relevant background for students applying the principles to current law.
The article’s treatment of Guantanamo Bay and diplomatic protection reflects the legal position as it stood at the time of judgment. The Guantanamo detention facility remains operational as of the date of this review, though its legal and political context has evolved considerably since 2006. No subsequent UK case has materially overturned the principles established in this decision regarding the non-justiciability of foreign relations conduct or the scope of diplomatic protection for non-nationals.
