R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598

Facts

• Omar Deghayes and Jamil Abbasi, both British nationals, were detained at Guantanamo Bay by US authorities following the invasion of Afghanistan.
• Abbasi's family sought judicial review after the Foreign Secretary declined to request Abbasi's release or make representations to US authorities regarding his detention without trial.
• The claimants argued the government had a duty to protect its citizens abroad and that failure to act constituted unlawfulness.
• The situation raised legal questions concerning detention without trial, protection of nationals overseas, and the intersection between individual rights and national security.

Issues

1. Whether the exercise of the Foreign Secretary’s prerogative power in matters of consular assistance is amenable to judicial review.
2. Whether the government had a legal duty to intervene or make representations on behalf of Abbasi in his detention by US authorities.
3. Whether the Foreign Secretary's refusal to intervene was unlawful on grounds of Wednesbury unreasonableness.
4. Whether international law or human rights instruments created enforceable individual rights requiring government action in this context.

Decision

• The Court of Appeal held that prerogative powers, including consular assistance, are in principle reviewable by the courts.
• The court applied the Wednesbury unreasonableness standard and determined that, given the context of foreign policy and national security, the threshold for intervention is high.
• The appeal was dismissed, with the court finding that the Foreign Secretary made reasonable efforts regarding Abbasi’s welfare and did not act unlawfully.
• The court concluded that international law did not create an enforceable individual right to consular intervention in this case.
• The limitations of judicial review in matters involving foreign policy and executive discretion were emphasized.

Legal Principles

• Prerogative powers may be subject to judicial review, with justiciability determined by the subject matter rather than the source of power.
• The Wednesbury unreasonableness test applies to review of prerogative actions, but a high standard must be met in areas engaging foreign policy.
• Courts will generally defer to the executive’s specialised knowledge and experience in foreign affairs, recognizing the limits of judicial intervention.
• International law does not impose a binding legal duty on the government to provide consular protection or make diplomatic interventions in every case involving a citizen detained abroad.
• The case affirms principles established in GCHQ [1985] UKHL 9 regarding the reviewability of prerogative powers.

Conclusion

The Court of Appeal clarified that claims regarding consular assistance and foreign policy decisions are amenable to judicial review but attract significant judicial restraint. The standard for intervention is Wednesbury unreasonableness, set at a high threshold in this context, thus limiting the role of the judiciary in challenging executive decisions concerning diplomatic protection and national security.