Facts
Three men detained at Guantánamo Bay had indefinite leave to remain in the UK but were not British nationals. Two had been granted asylum in the UK. They and members of their families challenged the Foreign Secretary’s refusal to request their release and return.
Issue
Did the different treatment of these detainees and British nationals amount to unlawful discrimination? Did the Foreign Secretary breach a legitimate expectation or have to make diplomatic representations?
Decision
The Court of Appeal dismissed the appeal. The detainees’ position was materially different from that of British nationals because the UK could make a formal state-to-state claim in respect of its own nationals. The court rejected the discrimination and legitimate expectation arguments. The arguments based on the Refugee Convention did not establish a duty to act.
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The court could review whether the Foreign Secretary complied with legal requirements and rationally considered the request. In matters of foreign relations the executive had a broad discretion. The court would not direct it to make particular representations to the United States.
Reported citations: [2008] QB 289, [2007] 2 WLR 1219
Source: Full judgment
