Abbasi & Anor., R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs & Secretary of State for the Home Department

Executive conduct in foreign affairs is not immune from judicial review merely because it derives from the prerogative. Justiciability depends on the subject matter. A published policy concerning diplomatic assistance may create a limited legitimate expectation that a request by a British national will be considered with all relevant factors in the balance.

The court cannot direct the conduct, content or timing of diplomatic representations where that would intrude into foreign policy. The European Convention does not require a state to exercise diplomatic protection for a national subjected abroad to conduct for which the state has no responsibility. An English court may nevertheless consider a plain and established breach of international law by a foreign state where manageable legal standards exist, especially in a human-rights context.

The first claimant, a British national, was held by the United States at Guantanamo Bay without access to a court, tribunal or lawyer. His mother sought judicial review requiring the Foreign Secretary to make diplomatic representations, or to explain why further assistance had not been provided.

Richards J in the Administrative Court had refused permission on 15 March 2002. The Court of Appeal granted permission on 1 July 2002, retained the matter and heard the substantive claim. The central issues were whether the court could consider the apparent legality of the foreign detention and whether the Foreign Secretary's response to a request for diplomatic assistance was justiciable.

1. The application was dismissed. The court could not grant a direct remedy against the United States, which was not before it, and the United Kingdom had no direct responsibility for the detention.

2. The ordinary rule against adjudicating on acts of a foreign sovereign did not prevent an English court from considering a plain breach of established international law where the relevant standard was clear and manageable. This was especially so where fundamental human rights were engaged. The court therefore could express grave concern that indefinite detention without access to any court or tribunal appeared to create a legal black hole.

3. The court held that Article 1 of the European Convention on Human Rights is ordinarily territorial. Exceptional extraterritorial jurisdiction requires, for example, effective control of foreign territory or the exercise abroad of public powers recognised by international law. British nationality alone did not place Mr Abbasi within United Kingdom jurisdiction, and no United Kingdom act had caused the alleged detention.

4. There was no established duty in international law, the Convention or domestic public law requiring the Foreign Secretary to secure diplomatic protection. However, the Foreign Office's published practice could create a limited legitimate expectation that a request for assistance would be considered. Prerogative powers were reviewable according to their subject matter. A refusal or inaction could therefore be reviewed for irrationality or breach of legitimate expectation, but the court could not enter forbidden questions of foreign policy.

5. The evidence showed that the Foreign Office had considered the request and was making representations and conducting discussions at several levels. No further order, and in particular no order requiring specified diplomatic representations, was justified.

• Court of Appeal (Civil Division): dismissed the substantive judicial-review application after granting permission and retaining the matter.
• Administrative Court: Richards J refused permission to seek judicial review on 15 March 2002.