Al Rawi & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Anor

Courts may review executive decisions concerning foreign relations, but the executive has an especially broad discretion in that field. Judicial review ensures compliance with formal requirements and rational consideration of relevant matters. It does not transfer responsibility for diplomatic strategy to the court.

The Convention imposes no duty on the United Kingdom to intervene diplomatically against another sovereign state on behalf of persons affected by that state’s conduct. The gravity of the alleged human rights violation, including alleged torture, does not create such a duty. Nor is it direct nationality discrimination to distinguish between nationals and non-nationals where international law gives them materially different rights to diplomatic protection.

Three former United Kingdom residents, who were not British nationals, were detained by the United States authorities at Guantanamo Bay. Their relatives lived in the United Kingdom. The detainees and their families sought declarations requiring the Foreign Secretary to request their release and return, and requiring the Home Secretary to permit their eventual readmission.

The Divisional Court dismissed their judicial review claim in [2006] EWHC 458 (Admin). The claimants appealed, relying on direct discrimination, legitimate expectation, Convention rights, refugee status and ordinary public law principles. The central issue was whether those grounds permitted a court to compel diplomatic action which the Foreign Secretary considered likely to be ineffective and counterproductive.

1. The appeal was dismissed. Decisions about diplomatic representations, foreign relations and associated national-security arrangements principally belong to the elected executive. The court may ensure compliance with formal legal requirements and rational consideration of the issues, but it may not substitute its judgment on diplomatic strategy. The Foreign Secretary’s assessment that the requested representations would be ineffective and counterproductive was not arguably perverse.

2. The difference between British nationals and the detainees did not constitute direct discrimination under sections 1(1)(a), 3(4) and 19B(1) of the Race Relations Act 1976. A national and a non-national were materially differently situated for diplomatic protection. That distinction was a legal consequence of nationality under international law, not racial stereotyping. The corresponding complaint under article 14 of the Convention also failed.

3. The claimants had no enforceable legitimate expectation that non-nationals would receive the diplomatic protection afforded to British nationals. Abbasi established only a limited expectation that a British citizen’s request would be considered with all relevant factors taken into account. In any event, the Foreign Secretary had carefully considered the requests.

4. Articles 3 and 8 imposed no duty to exercise diplomacy against a foreign sovereign state. Strasbourg authority established that the Convention does not require a contracting state to espouse complaints arising from another state’s conduct. The gravity of the suffering and the allegations of torture did not alter that principle. Although the international prohibition of torture is a peremptory norm owed to all states, it empowers states to seek compliance; it does not oblige each state to intervene.

5. A positive obligation under article 8 ordinarily requires a direct and immediate link between the measure sought and the applicant’s private or family life. The diplomatic and security difficulties placed this case outside that category. The executive was also entitled to pursue the interests of Guantanamo detainees generally rather than give decisive preference to the claimants.

6. Draft article 8 of the International Law Commission’s articles on diplomatic protection was proposed law, not existing law. The Foreign Secretary was not required to act as though refugees had already been assimilated to nationals for diplomatic protection. Treaty-based standing under article 16 of the Convention relating to the Status of Refugees 1951 did not entail a right to demand the detainees’ release.

7. The Home Secretary was not required to promise readmission before release became imminent. Such an advance undertaking could unlawfully fetter future decision-making where the eventual circumstances could not be predicted.

• Court of Appeal (Civil Division): The appeal was dismissed in [2006] EWCA Civ 1279.
• Administrative Court, Divisional Court: Latham LJ and Tugendhat J dismissed the judicial review application in [2006] EWHC 458 (Admin).