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

The Court of Appeal held that the Secretary of State is required to give due consideration to requests for consular assistance from British nationals detained abroad, but that this does not ordinarily require him to form or to publish a firm, concluded view as to whether a detention resulted from "extraordinary rendition" in breach of international law. The court applied and explained the principles in R (Abbasi) v Secretary of State for the Foreign and Commonwealth Office, emphasising that the legitimate expectation is that a request will be considered and that relevant factors be weighed, not that a definitive public position be announced.

The court applied a reasonableness standard akin to that in Secretary of State for Education and Science v Tameside MBC: the Secretary of State must take reasonable steps to acquaint himself with relevant and reasonably available information, but may legitimately refrain from a conclusive view while related foreign proceedings are pending. The court concluded it was not irrational or unfair for the Secretary of State to maintain a provisional view while the matter was the subject of a stay and pending appeal in the Nigerian courts, and dismissed the appeal.

Background and parties: The appellant is the brother of Nnamdi Kanu, a dual Nigerian and British national detained in Nigeria following his alleged abduction from Kenya in June 2021. The respondent is the Secretary of State for Foreign, Commonwealth and Development Affairs. Mr Kanu's detention and alleged extraordinary rendition generated litigation and findings in Nigerian courts and attention from the UN Working Group on Arbitrary Detention.

Nature of the claim: The appellant sought judicial review of two letters from the Secretary of State dated 14 April 2022 and 9 June 2022. The appellant contended that (i) the Secretary of State had failed to form a view, based on the available evidence, on whether Mr Kanu had been extraordinarily rendered in breach of international law; and (ii) that forming such a view was a legally necessary precursor to deciding what consular or other steps to take. The relief sought was a declaration and/or orders requiring lawful consideration and, in effect, that a concluded view be reached and communicated.

Procedural history: The claim was first heard by Swift J in the Administrative Court ([2023] EWHC 652 (Admin)), who dismissed it. Lewis LJ granted permission to appeal on 9 May 2023 and ordered expedition. The Court of Appeal heard the appeal and delivered judgment on 7 July 2023.

Issues before the court:

• whether the decision in R (Abbasi) required the Secretary of State to form and communicate a concluded view as to extraordinary rendition before deciding what steps to take;
• whether the Secretary of State's refusal to adopt a firm view was irrational;
• whether procedural fairness required the Secretary of State to state his provisional or final view or to give reasons publicly.

Court's reasoning: The court analysed Abbasi and concluded that its references to a "formulated view" and to forming "some judgment as to the gravity of the miscarriage" do not compel a definitive or published conclusion in every case. A "formulated" or "some" judgment may be provisional and adapted as circumstances evolve. The correct standard is whether the Secretary of State had taken reasonable steps to acquaint himself with relevant information (the Tameside-style inquiry). Given that the Nigerian Court of Appeal's judgment had been stayed pending appeal to the Nigerian Supreme Court and the matter was actively under review by the Foreign, Commonwealth and Development Office, the refusal to state a firm public view was not irrational. On procedural fairness, the court held that the respondent had provided information about steps taken and explained why public statements were inappropriate; the complaint was essentially substantive rather than procedural. The appeal was dismissed.

Wider context: The court expressed sympathy and concern about Mr Kanu's treatment but emphasised the limits of judicial direction over the conduct of foreign affairs and diplomacy, and that different remedies might arise if foreign decisions were finally resolved and ignored.

Appeal dismissed. The court held that Abbasi requires only that the Secretary of State give due consideration to requests for assistance, informed by a proper appreciation of reasonably available information, but does not impose an obligation to form or publish a firm, concluded view as a precondition to deciding what diplomatic steps to take. It was not irrational or procedurally unfair for the Secretary of State to maintain a provisional view while related proceedings and an appeal in Nigeria were pending.

The claim was heard in the High Court by Swift J ([2023] EWHC 652 (Admin)) who dismissed the claim. Permission to appeal to the Court of Appeal was granted by Lewis LJ on 9 May 2023. The Court of Appeal (Bean LJ, Coulson LJ, William Davis LJ) heard the appeal on 22 June 2023 and delivered judgment dismissing the appeal on 7 July 2023 ([2023] EWCA Civ 796).