Kanu, R (on the application of) v The Secretary of State for Foreign, Commonwealth and Development Affairs

The duty arising when a British national seeks diplomatic or consular assistance abroad is ordinarily a duty to consider the request on an informed basis. It does not require the Foreign Secretary to reach or publish a final view on whether international law has been breached. The Secretary of State retains a wide discretion, including freedom to weigh foreign-policy considerations, and the court cannot compel particular diplomatic representations. A provisional view may be rational where relevant foreign proceedings remain pending, particularly where an appellate judgment has been stayed. The scope of any obligation to disclose the outcome or reasons depends on the circumstances. The principles in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 159 were applied and clarified.

The appellant, the brother of a British-Nigerian national detained in Nigeria, challenged the Secretary of State’s decisions concerning diplomatic and consular assistance. He argued that the Secretary of State was required to reach a concluded view on whether his brother had been unlawfully rendered from Kenya, and then decide what further steps to take.

Swift J dismissed the judicial review claim: [2023] EWHC 652 (Admin). The Court of Appeal considered issues of legitimate expectation, rationality and procedural fairness, principally concerning the interpretation and application of Abbasi. The central question was whether the Secretary of State could lawfully proceed on a properly informed provisional view while related proceedings remained pending in Nigeria.

Disposition

The appeal was dismissed. Lord Justice Bean gave the judgment, with Lord Justice Coulson and Lord Justice William Davis agreeing.

1. Scope of the obligation. The principles in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 159 remain binding. There is no enforceable duty to protect a British citizen abroad or to make specific diplomatic representations. The Foreign Secretary has a wide discretion and may take foreign-policy considerations into account. Nevertheless, a refusal or failure to act remains reviewable for irrationality or breach of legitimate expectation. The citizen’s limited expectation is that the request will be considered and that relevant factors will be taken into account.
2. No requirement for a concluded view. The references in Abbasi to a consideration starting from a formulated view and to forming some judgment about the gravity of the alleged injustice did not require a firm, final or published determination. They required an adequately informed assessment based on relevant and reasonably available information. The Secretary of State was therefore entitled to maintain a provisional view while circumstances and information continued to develop.
3. Rationality. The Nigerian Federal Court of Appeal had made emphatic findings concerning the detention and transfer, but its judgment had been stayed pending an appeal to the Nigerian Supreme Court. The appeal remained outstanding and could not be treated as manifestly unfounded. In those circumstances, it was not irrational for the Foreign Secretary to refrain from reaching a firm view.
4. Procedural fairness. The fairness ground added nothing material. The real complaint was substantive, namely the refusal to reach a firm view. The Secretary of State had provided information about steps taken and explained the refusal to make public statements. Consistently with Abbasi, whether the result of considering a request or reasons must be stated depends on the circumstances.
5. Obiter. Bean LJ indicated that the position might be different if the Nigerian Supreme Court affirmed the judgment, ordered Mr Kanu’s discharge, and that order were defied. Any failure to respond in such circumstances would require a fresh claim.

• High Court (Administrative Court): Swift J dismissed the judicial review claim in [2023] EWHC 652 (Admin).
• Court of Appeal (Civil Division): Permission was granted on grounds concerning legitimate expectation, rationality and procedural fairness. The appeal was dismissed.