R v Foreign Secretary ex parte Abbasi

R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598

JURISDICTION – DISCRETIONARY POWERS – LEGITIMATE EXPECTATION

Facts

The first claimant was a British national who had been captured by United States forces in Afghanistan and detained in Guantanamo Bay as an ‘enemy combatant’. He was deprived of access to court proceedings and legal advice, and applied for judicial review in the United Kingdom seeking to compel the Secretary of State for Foreign and Commonwealth Affairs either to intervene with the US government or alternatively to explain the omission to do so.

Issues

The primary question was whether the court had jurisdiction to review the decision by the Secretary of State not to intervene. The second question was whether the UK government had any duty to protect the claimant as one of its citizens.

Decision/Outcome

The Court of Appeal referred to ‘forbidden areas’, including the area of foreign policy, into which it would not enquire. The discretion of the Foreign Office was therefore extremely broad. However, the Court could nevertheless review the decision on grounds of rationality and legitimate expectation (for example in this case, there was a legitimate expectation that the representations made to the Foreign Office by the claimant and his family would be taken into consideration in determining whether to intervene).

On the second question, the Court held that there was no legal duty on the state to protect its citizens in such circumstances; however, it also expressed serious concern about the detention process in Guantanamo Bay and the fact that the claimant found himself in a ‘legal black hole’, unable to challenge his detention before any court.