C3, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs & Ors

Whether Article 6(1) of the ECHR applies depends on the nature of the proceedings, not simply on the seriousness of their consequences or the human rights engaged. The recognised principle concerning the hard core of public-authority prerogatives is not confined to existing categories. It may apply to a novel factual situation where the decision under challenge has the relevant characteristics. Decisions about consular assistance are discretionary, involve diplomatic sensitivities, are closely linked to nationality and the right of abode, and lie close to the non-justiciable end of the public-law spectrum. Such proceedings therefore fall outside Article 6(1). The enhanced disclosure rule in AF (No 3) consequently did not apply, although the judge stated that, had Article 6 applied, the case would have warranted disclosure at the highest end of the relevant spectrum.

C3, a British national held in Al-Roj camp in north-east Syria, challenged decisions by the Foreign Secretary refusing consular assistance to enable her and three of her children to return to the United Kingdom. The decisions were based on national-security concerns. The judicial review included claims under Articles 3 and 8 of the ECHR, and the FCDO relied on closed material under the Justice and Security Act 2013.

The preliminary issue was whether Article 6(1) applied so that the enhanced disclosure standard identified in AF (No 3) was engaged. The court considered whether the proceedings concerned a civil right and whether consular assistance fell within the principle excluding disputes concerning the hard core of public-authority prerogatives.

1. The application for disclosure under AF (No 3) was refused. The court determined issues concerning the applicability of Article 6(1) and the AF disclosure rule; other closed-material and statutory-review issues remained to be determined.

2. The three conditions for engagement of Article 6(1) were common ground: a legal dispute, a civil right or obligation, and an outcome directly decisive of that right or obligation. The concept of civil rights has an autonomous Convention meaning.

3. The appropriate question was not whether the claim fitted an existing category of exclusion. The court had to identify the underlying characteristic of cases outside Article 6(1) and ask whether the present proceedings possessed it. The relevant characteristic was the exercise of a public-authority prerogative forming part of the hard core recognised in Strasbourg and domestic authority.

4. Consular-assistance decisions possessed that characteristic. They were discretionary, ordinarily involved sensitivities concerning foreign relations and diplomatic matters, were closely linked to the right of abode, and concerned a decision near the non-justiciable end of the public-law spectrum. The fact that the decision might affect family life or other Convention interests did not alter the analysis, which turned on the nature of the proceedings rather than the strength of the underlying claim.

5. The reasoning in QX did not require a different result. That case concerned reporting and appointment obligations which were not said to fall within the public-authority prerogative principle. The alternative analysis based on interference with Article 8 rights therefore did not assist where the proceedings themselves fell within that principle.

6. The judge addressed the disclosure issue in the alternative. The consequences for the family were immense, the absence of control over the camp did not remove the relevance of the FCDO’s refusal, and the Special Advocates’ safeguards were limited by the absence of instructions. The case lay at the top end of the disclosure spectrum. Had Article 6 applied, further AF (No 3) disclosure would have been ordered, subject to the precise form being determined.

First-instance judicial review decision. The judgment records earlier case-management steps and related litigation, but no appellate decision in the present proceedings.