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

A state has no general duty under domestic or international law to make a formal request for the return of a non-national detained abroad. Humanitarian representations remain discretionary. The prohibition of torture, although a peremptory norm of international law, does not impose on an individual state a further duty to intervene beyond lawful international co-operation. Judicial review may require reconsideration where the decision-maker misdirects himself or ignores relevant material, but the court must respect the executive’s wide discretion in foreign affairs and cannot compel a particular diplomatic request without a clear legal duty. Nationality is a material difference for comparison under the Race Relations Act 1976. The claims were dismissed.

The claimants were three long-term United Kingdom residents detained by the United States at Guantanamo Bay, together with members of their families. The detained claimants sought declarations and mandamus requiring the Foreign Secretary to make a formal and unequivocal request for their release and return, or to reconsider the refusal to do so. They relied on legitimate expectation, human rights obligations, alleged torture, refugee status and racial discrimination. The family claimants relied on Articles 3, 8 and 14 of the Convention. A further claim concerned the right of the detained claimants to return to the United Kingdom if released. The central issues were whether the Foreign Secretary owed any legal duty to act as requested and whether his decision was unlawful or irrational.

1. Formal request. The court dismissed the claims. The first defendant had a discretion to make humanitarian representations, but the claimants, as non-nationals, had no international-law right to the same diplomatic or consular protection as British nationals. The court could not compel a formal request without a clear duty in domestic or international law.

2. Refugee status. The proposals for diplomatic protection of refugees were regarded as lex ferenda, not as statements of current international law. Refugee status therefore did not alter the present legal position.

3. Torture. The prohibition of torture had a special status, but it did not create the wider duty alleged. The relevant obligation was to co-operate through lawful means to bring a serious breach of a peremptory norm to an end. The Convention did not impose a further positive duty on the United Kingdom in circumstances outside its control or authority.

4. Review of the Foreign Secretary’s decision. The court could intervene to require reconsideration if there had been an error of law, a failure to take relevant material into account, or an otherwise unlawful decision. However, the assessments that a formal request would be ineffective or counterproductive depended on diplomatic knowledge and foreign-policy judgments. The court lacked the means to evaluate those judgments and could not require the request sought.

5. Discrimination and family claims. Nationality was a material difference for the purposes of comparison under the Race Relations Act 1976. The detained claimants’ statutory discrimination claim therefore failed. Although the family claimants’ Article 8 rights were engaged, the evidence did not establish that the United Kingdom caused the relevant separation or that a formal request would probably have secured return. Their Article 3 and Article 14 claims consequently failed.

6. Return after release. The second defendant was entitled to defer any decision until release became imminent. A refusal based merely on the fact that the claimants had been outside the United Kingdom for more than two years would, however, be difficult to justify.