R. (Abbasi) v Foreign Secretary and Home Secretary [2003] UKHRR 76

• Plaintiff was not in the UK jurisdiction (being held at Gitmo) but sought judicial review of the government’s decision not to exercise its power to make diplomatic representations on his behalf.

• CA held that there was no duty on the foreign office to make specific representations on Plaintiff’s behalf. 

Lord Phillips

• A number of principles regarding this decision can be ascertained:

i)It is not an answer to a claim for judicial review to say that the source of the power of the Foreign Office is the prerogative. It is the subject matter that is determinative. (see GCHQ)

ii) There is nothing which supports the imposition of an enforceable duty to protect the citizen.

iii) However the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated in the ways explained what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy.

iv) It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country's foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.

v) The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.