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

A legitimate expectation arising from a policy on diplomatic assistance ordinarily requires the Secretary of State to consider the request properly, taking relevant considerations into account. It does not require a prior published or concluded view on every disputed fact or legal issue. The Secretary of State must be sufficiently informed by relevant and reasonably available information, but the court should not direct the timing, form or content of diplomatic representations. The expression of a provisional view, or the decision not to express a view publicly, does not ordinarily demonstrate irrationality. Procedural fairness does not impose a wider duty to explain a diplomatic strategy than the applicable policy requires, particularly where fuller disclosure could undermine the executive’s conduct of international relations.

The claimant, the brother of a British-Nigerian national detained in Nigeria after being removed from Kenya, sought judicial review of decisions contained in letters dated 14 April and 9 June 2022. He argued that the Secretary of State had to reach and disclose a concluded view on whether his brother had been unlawfully removed and detained, and had to explain why such a view could not be reached.

The claims relied principally on legitimate expectation, irrationality and procedural fairness. The claimant relied on the Court of Appeal’s decision in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs, concerning diplomatic protection and assistance to British nationals detained abroad. The central issue was whether the duty to consider a request for assistance required more than a properly informed assessment of what diplomatic steps were appropriate.

1. Legitimate expectation. The claim was dismissed. The relevant expectation arising from the Secretary of State’s policy was that a request for assistance would be considered and that relevant factors would be taken into account. R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 did not establish a mandatory preliminary step requiring the Secretary of State to form or publish a concluded view on the circumstances affecting the British national. References in Abbasi to a formulated view or judgment as to the gravity of an injustice meant that the consideration must rest on an appreciation of relevant considerations.
2. The appropriate standard was whether the Secretary of State was sufficiently informed by relevant and reasonably available information to undertake the required consideration. That was akin to the approach stated in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014. The ministerial submissions and the steps taken demonstrated that the Secretary of State had properly considered what assistance to provide.
3. Rationality. The refusal to state unequivocally that Nigeria had breached international law did not show inadequate consideration. It reflected the Secretary of State’s assessment of how best to assist the detainee and conduct the United Kingdom’s foreign relations. The distinction between reaching a firm view and publicly expressing it was artificial in the circumstances. The court could not require the Secretary of State to determine when, how or to whom the relevant conclusions should be communicated.
4. Procedural fairness and reasons. The Secretary of State was not exercising a power attracting a broader obligation of procedural fairness in this context. The applicable policy required an explanation of what was being done, what was not being done and why. The correspondence showed that this requirement had been met. A wider judicially imposed explanation would risk the court taking control of a delicate diplomatic exercise.
5. The application for judicial review was dismissed.