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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Al Rawi & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Anor  EWHC 972 (Admin) (04 May 2006)
Cite as:  EWHC 972 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TUGENDHAT
| R ON THE APPN OF BISHER AL RAWI & OTHERS
|- and -
|(1) SS FOR FOREIGN & COMMONWEALTH AFFAIRS
(2) THE SS FOR THE HOME DEPARTMENT
Christopher Greenwood QC, Phillip Sales & Ben Hooper (instructed by the Treasury Solicitor) for the Defendants
Hearing dates : 22nd & 23rd March 2006
Crown Copyright ©
Lord Justice Latham :
This is the judgment of the Court
The first and second claimants
"My interrogator asked me "Why are you so angry at America? It is your government, Britain, the MI5, who called the CIA and told them that you and Bisher were in the Gambia and to come and get you. Britain gave everything to us. Britain sold you out to the CIA."
"I can say that any suggestion of complicity on the part of the British authorities in the detention of Mr Al Rawi, and Mr El Banna is denied."
The Third Claimant
The treatment in Guantanamo Bay as described by the claimants
Treatment of Detainees Generally
i) The use of stress positions (like standing) for a maximum of four hours;
ii) Detention and isolation up to 30 days;
iii) The detainee may have a hood placed over his head during transportation and questioning;
iv) Deprivation of light and auditory and literary stimuli,;
v) Removal of all comfort items;
vi) Forced grooming, shaving the facial hair etc.
vii) Removal of clothing.
viii) Interrogation for up to 20 hours.
ix) Using detainees individual phobias (such as fear of dogs) to induce stress.
"US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent to military necessity, in a manner consistent with the principles of the Geneva Convention."
i) Incentive/removal of incentive i.e. comfort items,
ii) Change of scenery down (sic) might include exposure to extreme temperatures and deprivation and auditory stimuli;
iii) Environmental manipulation: altering the environment to create moderate discomfort (e.g. adjusting temperature or producing unpleasant smells);
iv) Sleep adjustment; adjusting the sleep times of the detainee (e.g. reversing sleep cycles from night to day). This technique is not sleep deprivation.
v) Isolation: clearly isolating the detainee from any other detainee while still complying with basic standards of treatment.
"86. Attempts by the United States Administration to redefine "torture" in the framework of the struggle against terrorism in order to allow certain interrogation techniques that would not be permitted under the internationally accepted definition of torture are of utmost concern. The confusion with regard to authorised and unauthorised interrogation techniques over the last years is particularly alarming.
87. The interrogation techniques authorised by the Department of Defence, particularly if used simultaneously, amount to degrading treatment in violation in Article 7 of ICCPR and Item 16 of the Convention against Torture. If in individual cases, which were described in interviews, the victim experienced severe pain or suffering, these acts amount to torture as defined in Article 1 of the Convention. Furthermore, the general conditions of detention, in particular the uncertainty of the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under Article 10(1) of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person.
88. The excessive violence used in many cases during transportation, in operations by the Initial Reaction Forces and force feeding detainees on hunger strike must be assessed as amounting to torture as defined in Article 1 of the Convention against Torture
90. The lack of any impartial investigation into allegations of torture and ill treatment and the resulting impunity of the perpetrators amount to a violation of Articles 12 and 13 of the Convention against Torture."
The claim of the detained claimants.
"1. A declaration that the Foreign Secretary is under a duty to make a formal and unequivocal request of the United States for the release and return of the detainee claimants to this country; and/or
2. A declaration that it would be unlawful for the Foreign Secretary to refuse to make such a request solely on the basis that the detainee claimants are not United Kingdom citizens; and/or
3. A declaration that the Foreign Secretary is under a duty to make the same representation to the United States of America in respect of the detainee claimants as have been made in respect of British citizens detained at the Guantanamo Bay Naval Base in Cuba; and/or
4. A declaration that detainee claimants will be entitled to immediate return to the United Kingdom in the event of their release from detention at Guantanamo Bay and that any refusal of permission to do so by the United Kingdom Authorities by reference to the time they have been detained at Guantanamo Bay would be unlawful."
"7. A declaration that the refusal and failure to make a request of the kind referred to in paragraph 1 constitutes unlawful discrimination on the part of the 1st Defendant against both the Detainee Claimants and the family Claimants.
8. An order of Mandamus requiring the 1st Defendant to reconsider whether or not to make a request of the kind referred to in Paragraph 1. In the light of all the matters set out in these Grounds and in the event that no such request is made, to provide a full statement of the reasons for such a decision."
The Response of the Secretary of State for Foreign and Commonwealth Affairs.
"Although we understand Mr Deghayes has long term or indefinite leave to remain in the United Kingdom he is a Libyan National and not a British National. We are therefore unable to act on his behalf. His detention and welfare are matters for the United States and Libya. I can only advise that you contact the Embassies of the United States and Libya in London and seek information from them…."
"Once we became aware of the arrest of British Nationals in the Gambia we made a number of representations to the local authorities. We sought immediate consular access and information on the reasons why the men had been detained. These were repeated at senior level, including by our High Commissioner personally. As you know Abdullah El-Janoudi and Wahid Al-Rawi were subsequently released.
However the two remaining men are not British Nationals. Under International Law and practice we cannot act in a consular or diplomatic role on behalf of the men who are still detained without the consent of the countries of which they are citizens and the country detaining them. The purpose of Consular protection is to allow a state to protect its own nationals when they are travelling in a second country. The primary responsibility for the two men's detention and welfare lies with the country that holds them and the country of their nationality.
Although you refer to both men having "long residence" in the United Kingdom, this is not a substitute for nationality. Neither have made the decision to seek British Nationality. Therefore we cannot provide consular or diplomatic assistance.
I understand that Mr El-Banna is a refugee. Refugee status does not give the country of residence the right to provide consular or diplomatic assistance. However the United Nations High Commissioner for Refugees (UNHCR) is entitled to provide assistance.
Your letter does not make clear Bashir Al-Rawi's precise status, although I understand that he is an Iraqi national with indefinite leave to remain in this country. If he was travelling on Iraqi documentation, then clearly it is the role of the Iraqi authorities to provide assistance either directly, or through a country which they have indicated they wish to represent their interest."
"57. ..... The United Kingdom Government also attached considerable weight to public and private assurances from the US Government that no torture is being practised at Guantanamo. The United States is a close and trusted ally with a strong tradition of upholding human rights."
"59. The conclusion which the UK Government has drawn from the matters referred to in this section of my statement is that they confirm the desirability of the UK Government continuing to use its diplomatic credit with the US in order to press for resolution of the whole situation at Guantanamo, rather than deflecting its efforts to press more extensive representations in relation to the detainee claimants (which would be likely to be seen by the US as unjustified special pleading by the UK and would be likely to be both ineffective and counterproductive.). .."
"28. Turning to this particular case, any humanitarian representations to the US Government on behalf of non-British nationals who had in the past been residents in the UK of the form proposed by the claimants would be far from straightforward. The US Government is fully alive to the UK Government's lack of any recognised right to intervene on their behalf in the way the claimants seek. In my assessment and that of the FCO the US Government would be very likely to resist any intervention on the lines the claimants seek. I consider that the US Government would be likely to consider an intervention by the UK Government on these lines to be a case of unjustified special pleading by the UK for particular individuals. In my view (and that of the FCO and the UK Government), lobbying along these lines would not be effective in itself and would make it much more difficult for the UK to engage successfully with the US across the range of issues to which I have referred in paragraph 20 above."
"19. Whilst British Nationals remained at Guantanamo, the UK Government's main diplomatic efforts were focused upon them. However, the United Kingdom Government did in the same period express reservations to the US Government about Guantanamo more generally, including the legal basis on which the detainees were held there, the conditions of their detention and the process by which they might be tried or released. These concerns were expressed, for example, at Foreign Secretary/US Secretary of State level in December 2004. Following the return of the last of the British Nationals, UK policy has concentrated on all the main detainees and the future of Guantanamo as a whole.
20. Further, in the conduct of UK/US diplomatic relations, a group of issues has come to be discussed together and points taken in relation to one of them have implications for how relations in respect of the others are conducted. The issues associated in this way may be grouped together under the general heading of US detainee policy and practice, and include in particular the position of all detainees at Guantanamo and its future, and the treatment of terrorist suspects more generally. The UK government is making considerable efforts to engage with the US government on all these interconnected issues.
21. The UK has also made efforts in relation to Guantanamo in its capacity as a EU Member State. During 2005, first as part of the EU "Troika" with Luxembourg, which then held the EU presidency and the EU Commission, then as the State holding the EU Presidency, the UK Government made repeated representations to the US to agree terms of access to allow a visit by the UN Special Raporteurs. Representations to the same effect were also made bilaterally, on a UK to US Government level.
22. It is my assessment (and that of the FCO and the UK Government) that the US authorities are willing to engage with the points the UK Government is pursuing in relation to detainee policy generally but this has been, and remains, a complex process."
"69. The Foreign Secretary has given careful consideration to the present claim by all the claimants and the question whether the UK Government should make formal requests for return to the UK of the detainee claimants. He has concluded that such formal requests should not be made. (I should make it clear that the Foreign Secretary has not yet taken decisions in relation to what has been referred to in the proceedings as the "fact-specific" claims by Mr Al-Rawi and Mr Deghayes, which have been stayed by the court and in relation to which he is considering new representations)
70. The principal reasons for this decision are those I have explained above. In particular the Foreign Secretary's assessment is that making formal approaches to the US Government along the lines demanded by the claimants would be ineffective because of the absence of a Consular locus and would be counterproductive in terms of the UK Government's ability to engage constructively with the US Authorities across the group of issues referred to in para 20 above.
71. The Foreign Secretary considers that the reasons explained above are sufficient in themselves to warrant the course he has adopted. However, he has also had regard to two additional factors, which also tend to support the course he has adopted, as follows:
1) He has had regard to the assessment of the threat to national security which the detainee claimants would pose if they were permitted to return to the UK. It is assessed that Mr El-Banna and Mr Deghayes would pose a significant threat to national security and the public if they were permitted to return to the UK. The assessment in relation to Mr Al-Rawi is that he might in some circumstances pose a threat, but the risk of this is at a lower level than for the others. The Foreign Secretary considers that this material is relevant to his assessment that a fair balance between the interests of the claimants and the general public interest does not require him to make the formal requests to the US Government which the claimants have demanded;
2) (As a factor of lesser weight) the risk that, by agreeing to act on behalf of the detainee claimants, the FCO's well established and clear policy, only to exercise Consular or Consular-type assistance in relation to persons in custody abroad if they are British Nationals, might become vulnerable to a wide range of claims from persons who are non-nationals but claim some form of link with the UK. If that were to occur, it could have serious implications for the FCO. There are, for example, about 2.6 million non-British nationals in the UK with residence or refugee status. However the Foreign Secretary has not treated this factor as having great weight, because he recognises that the situation at Guantanamo and in relation to the detainee claimants is an exceptional one.
72. In taking his decision, the Foreign Secretary has had his attention drawn to, and has taken into account, what is set out in paragraph 59 of the Claimants' amended statement of grounds. He recognises that the detainee Claimants' families (who are located in the UK and many of whom are British nationals) are suffering distress, and is concerned that the children of Mr El-Banna and Mr Deghayes are inevitably seriously affected by their absence. He has given careful thought to the point that two of the detainee claimants, Mr El Banna and Mr Deghayes, have been granted refugee status by the UK in the past and they and Mr Al Rawi are nationals of countries (Jordan, Libya and Iraq respectively) that do not appear likely to take action to protect their interests. But the Foreign Secretary does not consider that any of these matters outweighs the reasons referred to above in support of his decision not to make the formal request to the US Government which the claimant seeks."
"23. I turn now to the UK Government's relationship with the US Government specifically as regards to the detainee claimants held at Guantanamo (obviously, their interests are also included within the general issues which the UK is pressing with the US Authorities, to which I have just referred). Those individuals were formerly resident in the UK. However, they are not British citizens. It is the long-standing policy of the UK Government not to offer consular or similar assistance to non-British Nationals, except in cases where a specific agreement to do so exists with another State. It should also be noted that the UK does not have the right to exercise diplomatic protection (in the form of a State to State claim arising from a wrong done to a national of the State asserting the claim); such diplomatic protection is governed by rules of international law, which are reflected in the UK's rules on international claims: see pages 89 to 92. Under those rules, the UK can exercise diplomatic protection only in respect of British nationals and even then the decision whether or not to do so is a matter of discretion. Any representations on behalf of non British nationals would have to be made on a humanitarian basis rather than as consular assistance or diplomatic protection.
24. The FCO recognises that it would be possible as a matter of international law for the UK Government to take up with a third State a breach by the latter of its international human right obligations, even if the breach was manifested by actions against persons who are not nationals of the UK. However, normally any such action by the UK Government would be directed towards encouraging the third State to bring its actions into conformity with international law: it would not be directed towards the sort of action which the claimants are seeking in this case, namely a formal request for their return to the UK.
25. It is important to emphasise that this is the relief sought by the claimants. However, a formal request for their return on humanitarian grounds is a request which a State would normally make in the exercise of consular functions in relation to its own nationals for whom it has a clear legal locus. Such a request is not one which a State would have any legal right to make in relation to non-nationals. Accordingly, to assert as a matter of humanitarian concern a formal request that would ordinarily be regarded by States as a matter of consular concern would be likely to be regarded as diminishing its legitimacy in the eyes of the State to whom it is addressed. Further, a state making such a request may risk losing credibility with the State to whom it is made, such that it will not be taken seriously when it seeks to influence the behaviour of that State in relation to other matters of legitimate concern. Thus it is only in exceptional cases that the FCO seeks to intervene and make humanitarian representations; and even then, the representations made are not of the type which the Claimants demand in this case.
26. Any decision on making humanitarian representations is regarded by the FCO as a matter of discretion for the Foreign Secretary, taking into account a wide range of factors relating to the particular circumstances of the case and wider international relations considerations. Where a request for assistance is made to the FCO, FCO Ministers have to make an informed and considered judgment on the merits of intervening and on the most appropriate way in which the interests of the individual may be protected, including the nature, manner and timing of any diplomatic representation to the country concerned. Such assessments of whether, when and how to press another State require fine judgments to be made by Ministers, drawing on the FCO's experience and expertise.
27. In deciding whether to make humanitarian representations in any case, the UK Government would have to take into account the extent to which it would have to expend significant political credit, and would have to risk losing a measure of credibility, with the State to whom the representations are made. This is so, irrespective of the context. It is particularly true in relation to such highly controversial and (especially from the US Government's point of view) sensitive matters as Guantanamo and the circumstances and conditions of persons detained there."
R(Abbasi –v- Anr) –v- Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department  UKHRR 76.
"The essence of his [the appellants' counsel's] submissions was that Mr Abbasi was subject to a violation by the USA of one of his fundamental human rights and that, in these circumstances, the Foreign Secretary owed him a duty under English public law to take positive steps to redress the position, or at least to give a reasoned response for his request for assistance. Mr Blake [the appellants' counsel's] accepted that no legal precedent establishes such a duty, but submitted that the increased regard paid to Human Rights in both international and domestic law required that such a duty should be recognised."
"For the Secretary of State, Mr Greenwood QC submitted that the authorities clearly established two principles that posed insuperable barriers to the relief claimed in these proceedings
(1) The English court will not examine the legitimacy of action taken by a foreign sovereign state;
(2) The English court will not adjudicate upon actions taken by the executive in the conduct of foreign relations."
"The Court would here observe, that within the limits prescribed by international law, the State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon the State an obligation to protect its citizens abroad and may also confer upon the national a right to demand the performance of that obligation and clothe the right with corresponding sanctions."
"It is clear that international law has not yet recognised the State is under a duty to intervene by diplomatic or other means to protect a citizen who is suffering or threatened with injury in a foreign State."
"If, in exhausting any municipal remedies, the claim is met with prejudice or obstruction, which are a denial of justice, HMG may intervene on his behalf in order to secure justice."
"HMG will not take up the claim unless the claimant is a United Kingdom national and was so at the date of the injury."
"The UK Government would also consider making direct representations to third Governments on behalf of British citizens where we believed they were in breach of International obligations."
"The citizen's legitimate expectation is that his request will be "considered" and that in that consideration all relevant factors will be thrown into the balance."
"106. We would summarise our views as to what the authorities establish as follows:
(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 which is determinative.
(ii) Despite extensive citation of authority there is nothing which supports the imposition of an enforceable duty to protect the citizen. The Convention does not impose any such duty. Its incorporation into the municipal law cannot therefore found a sound basis on which to reconsider the authorities binding on this Court.
(iii) However the Foreign Office has a 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 is irrational or contrary to legitimate expectation; but the court cannot enter into 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 related 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.
107. We have made clear our deep concern that, in apparent contravention of fundamental principles of law Mr Abbasi may be subject to indefinite detention in territory over which the USA has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or Tribunal. However, there are a number of reasons why we consider that the applicant's claim to relief must be rejected.
(i) It is quite clear from Mr Fry's evidence that the Foreign and Commonwealth Office has considered Mr Abassi's request for assistance. He has also disclosed that the British detainees are the subject of discussions between this country and the USA both at Secretary of State and lower official levels. We do not consider that Mr Abassi could reasonably expect more than this. In particular, if the Foreign and Commonwealth Office was to make any statement as to its view of the legality of the detention of the British prisoners, or any statement of the nature of the discussions held with US officials, this might well undermine these discussions.
(ii) On no view would it be appropriate to order the Secretary of State to make any specific representations to the USA, even in the face of what appears to be a breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time.
(iii) The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the USA. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Raseul. As is clear from our judgment, we believe that the US courts have the same respect for human rights as our own.
(iv) The Inter American Commission on Human Rights has taken up the case of the detainees. It is as yet unclear what the result of Commission's intervention will be. It is not yet clear that any activity on behalf of the Foreign, Commonwealth Office would assist in taking the matter further while it is in the hands of that International body."
The Case for the First Three Claimants
i) Contrary to the clear stance taken by the 1st Defendant, no proper distinction can or should be made between the position of the claimants and the position of British Nationals.
ii) In the absence of any proper justification for drawing a distinction between the claimants and British nationals, the basis for the decision as expressed in correspondence, by Baroness Symons, and by Mr Richmond is irrational and discriminatory, and accordingly the claimants have a legitimate expectation to be treated in the same way as the British nationals.
iii) There is in any event a difference between the case of Abbasi and that of the claimants in that the claimants have been subjected to, or at the least are at risk of, torture as defined by the United Nations Convention Against Torture 1984 and Article 3 of the European Convention on Human Rights, and the former imposes positive obligations upon States to take action to prevent torture or other inhuman or degrading treatment.
iv) The discrimination between the treatment of the claimants and that of Abbasi and the other British nationals amounts to unlawful discrimination under the Race Relations Act 1976.
v) In all the circumstances, the conclusion of the Secretary of State that a formal request would be ineffective and counterproductive is irrational, or at the least must have failed to take into account the very clear desire expressed by the United States to release prisoners from Guantanamo Bay, so far as possible.
"(12) A consular official shall be entitled within his District to –
(a) Interview, communicate with and advise any national of the sending state;
(b) Inquire into any incidents which have occurred affecting the interests of any such national;
(c) Assist any such national in proceedings before or in relations with the authorities of the territory and or where necessary arrange for legal assistance for him.
(3) For the purposes of the protection of the Nationals of the sending state and their property and interests, a Consular Officer shall be entitled to apply to and correspond with the appropriate authorities within his district and the appropriate departments of the central government of the territory."
"A refugee shall have free access to the courts of law in the territory of all contracting states."
"1. A state may exercise diplomatic protection in respect of a stateless person, who, at the time of the injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that state.
2. A state may exercise diplomatic protection in respect of a person recognised as a refugee by that state when that person, at the time of the injury and the time of the official presentation of the claim, is lawfully and habitually resident in that state."
"(b) The prohibition imposes obligations erga Omnes
151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.
152. Where there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture these bodies enjoy priority over individual States in establishing whether a certain State has taken all the necessary measures to prevent punishment and torture, and, if they have not, in calling upon that state to fulfil its international obligations. The existence of such international mechanisms makes it possible for compliance with international law to be ensured in a neutral and impartial manner.
c. The prohibition has acquired the status of jus cogens
153. While the erga omnes nature just mentioned appertains to the area of international enforcement (lato sensu) the other major feature of the principle proscribing torture relates to the hierarchy of the rules of the international normative orders. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is a norm that enjoys a higher rank in the international hierarchy than treaty law and even "ordinary" customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
154. Clearly the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate."
"Serious breaches of obligations under peremptory norms of general International Law.
Application of this Chapter
1. This chapter applies to the international responsibility which is entailed by a serious breach of a State of an obligation arising under a peremptory norm of general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.
Particular consequences of a serious breach of an obligation under this chapter
1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40.
2. No State shall recognise as lawful the situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation."
"1. (1) A person discriminates against another in any circumstances relevant for the purposes of any of the provisions of this Act if –
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons…..
3(1) "racial grounds" means any of the following grounds .......... nationality......
4. A comparison of the case of a person of a particular racial ground with that of a person not of that group under section 1(1)….. must be such that the relevant circumstances or the one case are the same or not materially different, in the other."
19B (i) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.
41(2) Nothing in parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis that others nationality or place of ordinary residence or the length of time which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom if that act is done
(d). In pursuance of any arrangements made (whether before or after the passing of this Act) by or with the approval of, or for the time being approved by, a Minister of the Crown"
The case for the 4th to 7th Claimants (the family claimants)
"Mr El Banna's separation from his children has impacted on their emotional development and their psychological well being. The children have expressed mixed emotions of anger and fear. They have also expressed feelings of rejection, uncertainty and despair. The attachment breaks over the last three years appear to have created within the children reduced ability to develop a sense of security and trust. The children are emotionally fragile particularly Abdul Rahman (who is six years old)."
"357. The court observes that in the above cited Kurt case which concerns the disappearance of the applicant's son during unacknowledged detention, it found that the applicant's mother had, in the circumstances, suffered a breach of Article 3. It referred in particular to the fact that she was the mother of the victim of a serious human rights violation and herself the victim of the authorities complacency in the face of anguish and distress....
The Kurt case does not, however establish any general principle that a family member of a "disappeared person" is thereby the victim of treatment contrary to Article 3.
358. Whether a family member is such a victim will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context a certain weight will be attached to the parent – child bond – the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family members in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those inquiries. The court would further emphasise that the essence of such a violation does not so much lie in the fact of the disappearance of the family member but rather concerns the authorities' reactions and attitudes when the situation is brought to their attention. It is especially in respect of the latter that a relative may make a claim to be a direct victim of the authorities' conduct."
Can the decision withstand scrutiny?
a. The detained claimants, on all the evidence before the court, are being detained unlawfully or at the very least detained in breach of their fundamental right to have the lawfulness of their detention determined by a court;
b. Whilst in detention they have all been subjected to torture and inhuman and degrading treatment contrary to the Torture Convention; at the least, the evidence shows that they are at risk of such treatment. All the objective evidence supports this. The attitude of the first defendant as disclosed in the witness statement of Mr Richmond displays undue, if not, supine, deference to the assurances given by the United States authorities, particularly bearing in mind the way the United States Authorities seek to confine the definition of torture;
c. The connections which the detained claimants have with the United Kingdom are such as to give them a strong moral, if not legal, claim to the protection of the United Kingdom. This is particularly so in the case of the second and third claimants by reason of their refugee status. And as far as the first claimant is concerned, it is unrealistic to expect that Iraq will provide him with any protection;
d. There is no recognition in the evidence of Mr Richmond of the clear movement of international legal opinion towards assimilating the rights of refugees with those of nationals. In particular, there is no recognition of the fact that the United States has expressed no opposition to that movement; indeed there are indications that it supports it;
e. There is no material, save for the subjective assessment of the Foreign and Commonwealth Office, that the United States authorities would treat a formal request for the return of the three detained claimants any differently from the request it made on behalf of the British nationals. Even if it did, as a matter of formality, treat it as a representation made on humanitarian grounds, rather than in the exercise of consular rights under the bilateral convention, there is no objective justification for the view that the result would be different;
f. The assertion that a request would be counterproductive is wholly inconsistent with the evidence which shows that the United States authorities are anxious to return as many detainees at Guantanamo as they can.
"We have no intention of operating Guantanamo any day longer than we have to. If there is another viable alternative to deal with these detainees then that is something we are obviously always looking at."
"But there are well established rules that the courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and are very slow to adjudicate upon rights arising out of transactions entered into by sovereign states on the plane of international law."
"There is continuous discussion about that."
The claim against the 2nd Defendant.