High Court clarifies scope of Abbasi duty in alleged rendition case

23/03/23

The High Court has today handed down judgment in R (Kanu) v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] EWHC 652 (Admin), dismissing a claim alleging that the Foreign Secretary had failed to discharge his obligations to a British National who alleged that he had been unlawfully rendered to, and detained in, Nigeria in breach of international law.

The Claimant was the brother of Nnamdi Kanu, a dual British Nigerian national and the leader of the Indigenous People of Biafra, a nationalist separatist group in Nigeria that aims for the establishment of a Biafran Republic. Since 27 June 2021, Mr Kanu has been detained in Nigeria pending trial on criminal charges. Mr Kanu claims to have been abducted in Kenya by agents of the Nigerian state, subjected to inhuman and degrading treatment and extraordinarily rendered to Nigeria.

The UK Government actively engaged with Mr Kanu’s case, providing consular assistance and raising Mr Kanu’s case in a number of diplomatic communications and meetings with the Nigerian government (including between the UK Prime Minister and Nigerian President). Alongside this, the Secretary of State had considered and rejected the option of making a public statement as to the legality of Mr Kanu’s treatment or to call for Mr Kanu’s release. In correspondence with the Claimant, the Secretary of State explained that he had formed a provisional view of whether Mr Kanu had been subject to violations of international law, which was kept under review in light of evolving evidence (and which he did not reveal to the Claimant).  

The Claimant contended that the Secretary of State was obliged to go further, and that his failure to do so put him in breach of his obligations towards Mr Kanu, as set out by the Court of Appeal in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76. Specifically, the Claimant’s case was that the Secretary of State was obliged to form a concluded view on whether Mr Kanu was subject to unlawful treatment.

Mr Justice Swift dismissed the claim, reasoning that the Claimant’s case involved a “significant over-reading" of Abbasi. The references in Abbasi to the need to form “a formulated view” or “some judgment as to the gravity of the miscarriage” do no more than make it clear that the Secretary of State’s consideration of any request of assistance must rest on an appreciation of relevant considerations. All that is required of the Secretary of State in relation to the Abbasi obligation is that he is sufficiently informed (by reference to relevant and reasonably available information) to undertake the consideration required of him. On the facts, it was clear that the Secretary of State’s provisional view was a properly informed opinion, and the Secretary of State’s decision not to state a concluded view reflected his opinion on how best to conduct his affairs with the Nigerian authorities to give the greatest chance of providing practical assistance to Mr Kanu – a decision on the conduct of international relations which is rarely likely to be amenable to judicial direction.

The judgment can be found here.