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

A British citizen has no enforceable general right to diplomatic protection against violations of fundamental rights abroad. Government policy may nevertheless create a legitimate expectation that a request for assistance will be considered, taking account of all relevant factors, including the nature and gravity of the injustice. Decisions or inaction may be reviewed for irrationality or breach of legitimate expectation, subject to the exclusion of foreign policy decisions from judicial scrutiny. The prerogative source of the power does not itself prevent review. Any requirement to disclose a decision or give reasons depends on the circumstances. British nationality alone does not establish jurisdiction under the European Convention on Human Rights. With appropriate caution, an English court may express a view on a clear breach of international law involving fundamental human rights.

Feroz Ali Abbasi, a British national, was captured by United States forces in Afghanistan and transferred to Guantanamo Bay. At the hearing he had been detained for eight months without access to a court, tribunal or lawyer. His mother brought judicial review proceedings on his behalf against the Foreign Secretary and the Home Secretary. The claim before the court concerned the Foreign Secretary's response to requests for diplomatic assistance; a separate claim against the Home Secretary was not pursued.

Richards J refused permission to seek judicial review. The Court of Appeal subsequently granted permission, retained the proceedings and heard the substantive application. The claimants sought action, or an explanation, from the Foreign Secretary concerning detention which they alleged was arbitrary. The Foreign Office produced evidence of consideration, visits and diplomatic discussions. The central questions concerned the court's ability to examine foreign sovereign conduct, the reviewability of diplomatic decisions and the existence of any enforceable duty to assist.

The application was dismissed unanimously. Lord Phillips MR delivered the single judgment of the court, to which Waller and Carnwath LJJ had also contributed.

1. The principle against adjudicating upon foreign sovereign transactions was subject to limits. An English court could, with appropriate caution, express a view on a clear breach of international law, particularly where fundamental human rights were involved. A statutory context was not essential. Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) and Oppenheim v Cattermole supported that conclusion; the statutory setting of R v Home Secretary, ex parte Adan remained material to that decision.

2. The application had to be approached on the basis that Abbasi was apparently arbitrarily detained in a legal black hole. The objection concerned indefinite detention without an opportunity to challenge its legitimacy, rather than the existence of detention itself. Detention as an enemy combatant might be justified, and the United States appellate courts had yet to determine the position. There was no direct remedy against the United States in these proceedings, and the United Kingdom had no direct responsibility for the detention.

3. International law did not impose a duty to intervene diplomatically to protect a citizen abroad. Neither the European Convention on Human Rights nor the Human Rights Act supplied such a duty. Convention jurisdiction was normally territorial, with recognised exceptions involving effective control or the exercise of extraterritorial jurisdiction. Nationality alone did not bring Abbasi within United Kingdom jurisdiction. No relevant United Kingdom control or act violating his rights had been identified.

4. The prerogative source of diplomatic powers did not itself exclude judicial review. Subject matter and suitability for judicial determination controlled justiciability. Government policy created a limited legitimate expectation that a request for assistance would be considered with all relevant factors, including the nature and gravity of the alleged injustice, taken into account. Whether to make representations, and their form, remained within a very wide discretion.

5. Decisions or inaction could be reviewed for irrationality or breach of legitimate expectation, while foreign policy decisions remained outside judicial scrutiny. A refusal even to consider assistance contrary to stated practice could justify a mandatory order requiring consideration. Any further requirement to communicate a decision, give reasons or permit challenge to those reasons depended on the circumstances.

6. The Foreign Office had considered the request and was discussing the detainees with United States officials. Abbasi could not reasonably expect more on the evidence. Disclosure might undermine those discussions, and an order requiring specific representations would intrude upon foreign policy at a delicate time. Pending United States appeals and the Inter-American Commission's intervention also supported refusing relief.

1. Court of Appeal: On 1 July 2002, granted permission to seek judicial review and retained the proceedings for a substantive hearing. In [2002] EWCA Civ 1598 , dismissed the substantive application.
2. High Court, Queen's Bench Division, Administrative Court: Richards J refused permission to seek judicial review on 15 March 2002. No citation for that decision was stated.