"B" & Ors, R (on the application of) v Secretary of State for the Foreign & Commonwealth Office

The Human Rights Act 1998 applies wherever the United Kingdom has jurisdiction under article 1 of the Convention, including exceptional exercises of authority abroad recognised by Strasbourg jurisprudence.

The Convention cannot ordinarily require diplomatic officials to shelter a fugitive in defiance of the receiving state, because Convention obligations must be interpreted consistently with public international law. A duty to afford diplomatic asylum may arise where the threatened treatment is so grave that international law permits protection. Where the receiving state lawfully seeks a fugitive’s return, protection is required only if withholding surrender is clearly necessary to avert an immediate likelihood of serious injury. A threat of indefinite detention does not by itself meet that standard.

Two Afghan-origin children escaped from immigration detention in Australia and entered the British Consulate in Melbourne. They alleged serious psychological harm, self-harm and degrading conditions in detention. British officials sheltered them temporarily while considering their request, but required them to leave after the Australian authorities sought their return.

Moses J refused permission to seek judicial review on paper. Sullivan J later dismissed the renewed application in the applicants’ absence. The Court of Appeal granted permission, extended time and reserved the substantive judicial review claim to itself.

The central questions were whether the applicants came within United Kingdom jurisdiction under article 1 of the Convention, whether the Human Rights Act 1998 applied to British consular conduct abroad, and whether the officials were obliged to continue providing refuge.

1. The application for judicial review was dismissed. The court assumed, without deciding, that the officials’ promise to keep the applicants safe and their temporary protection within the Consulate brought them sufficiently under United Kingdom authority for article 1 purposes.

2. The Human Rights Act 1998 was capable of applying abroad. Its object, section 3(1), section 6 and its definition of Convention rights required it to be interpreted as applying wherever the United Kingdom has jurisdiction as identified by the Strasbourg Court. The usual presumption against extraterritorial statutory effect could not restrict the Act to the United Kingdom’s territory.

3. Convention jurisdiction is essentially territorial. Exceptional extraterritorial jurisdiction requires special justification and ordinarily corresponds to a jurisdictional basis recognised by public international law. Diplomatic and consular officials exercise only limited authority in the receiving state, particularly in relation to nationals of the sending state.

4. The Convention could not require diplomatic asylum where granting it would violate public international law. The receiving state may ordinarily demand the surrender of a fugitive within its territory. Diplomatic premises cannot properly be used to obstruct the regular exercise of that state’s lawful territorial jurisdiction.

5. A Convention duty to give refuge may arise where a receiving state intends treatment so harsh as to constitute a crime against humanity. The precise lower boundary remained ill-defined. Where fugitives had escaped lawful detention, British officials could not be required to resist their return unless that was clearly necessary to protect them from an immediate likelihood of serious injury.

6. The evidence did not establish that threshold. Conditions at the detention centre caused grave concern, but they were under public and judicial scrutiny in a country observing the rule of law. The applicants were not exposed to the type and degree of threat that could justify diplomatic asylum. Granting refuge against Australia’s demand would instead have abused the inviolability of consular premises and breached international law.

7. The article 6 complaint also failed. Any applicable civil right had received a fair and public determination through the three-day hearing before the Court of Appeal.

• Court of Appeal (Civil Division): Granted permission to appeal, extended time, reserved the judicial review application to itself and dismissed that application: [2004] EWCA Civ 1344.
• Administrative Court, Sullivan J: Dismissed the renewed application for permission to seek judicial review in the applicants’ absence on 10 March 2004.
• Administrative Court, Moses J: Refused the paper application for permission to seek judicial review on 8 October 2003.