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

At the permission stage, the court must assume that the pleaded factual allegations could be established and decide only whether they disclose an arguable claim. It must not determine disputed facts or decide the ultimate merits. A claim may be arguable where materially new evidence, including allegations of torture, gives rise to potentially engaged obligations under the European Convention on Human Rights. Exceptional interference with family life may also arguably require consideration of whether a positive obligation arises under Article 8. Permission does not indicate likely success. Where general legal issues may determine the claim, fact-sensitive issues may properly be deferred until those issues have been resolved.

Seven claimants sought judicial review concerning the position of three detainees held at Guantanamo Bay and the consequences for their families. The detainees were not British citizens, although some had refugee status or indefinite leave to remain in the United Kingdom. The claim relied on alleged torture, family-life interference under Article 8 of the European Convention on Human Rights, and possible obligations on the United Kingdom Government to seek action similar to that taken for British detainees.

The Government relied on Abbasi, arguing that it established no legal obligation to take particular steps for detainees and that international law imposed no equivalent obligation towards non-citizens or refugees. The immediate issue was whether the claims were sufficiently arguable to justify permission and determination by a Divisional Court.

1. Permission stage. Mr Justice Collins emphasised that the court was concerned only with whether there was an arguable claim. The pleaded allegations had to be accepted as founding the possibility of a claim. No findings were made on the truth of the allegations or on the ultimate legal merits.
2. Arguable Convention issues. The evidence alleging torture in Guantanamo Bay could not at that stage be discounted as incredible. It was supported by material from the person assigned by the American authorities to assist and represent the detainees, and by a United Nations report. That evidence arguably added a new dimension beyond Abbasi. The families’ suffering also involved interference with family life under Article 8. In the exceptional circumstances alleged, it was arguable that a positive obligation to take action might arise.
3. Limits of the decision. The court acknowledged formidable legal arguments for the Government. Granting permission gave no indication that the claims would succeed. The questions concerning the extent, if any, of the Government’s obligations in the exceptional circumstances of Guantanamo Bay and the fight against terrorism were matters of public concern and interest requiring determination.
4. Directions. Permission was granted and the hearing was directed to be expedited before the end of term before a Divisional Court. Fact-sensitive claims were stayed or deferred because the general issues might determine whether they required consideration. Evidence was to be served at least a week before the hearing and skeleton arguments two working days before it.

Not stated in the judgment.