- BY Bilaal Shabbir
High Court considers government actions to safeguard a dual British national abroad
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R (Kanu) v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] EWHC 652 (Admin) was a challenge to the Foreign Secretary’s acting in assisting a British national who had been detained in Nigeria, allegedly in breach of international law.
Mr Kanu was the brother of Nnamdi Kanu (NK), the leader of the Indigenous People of Biafra. NK held dual Nigerian/British nationality. He remains detained in Nigeria pending criminal charges since June 2017 having been unlawfully kidnapped by agents of the Nigerian State whilst outside Nigeria. The Foreign and Commonwealth Office had attempted (to no avail) to progress matters by holding various meetings with Nigerian ministerial staff.
The challenge by Mr Kanu aimed to force the Secretary of State to determine what further steps were needed to assist NK by compelling them to come to a formulated view of whether he was unlawfully removed back to Nigeria in breach of international law, in line with R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76.
Although the Secretary of State had come to a provisional view on the matter, a request to publish that view was refused because the position continued to evolve. The Foreign Secretary argued that the court should not adjudicate on actions taken by the executive in the conduct of foreign relations.
The court agreed. It found that the refusal to publish the view reflected the Foreign Secretary’s opinion on how best to conduct his affairs with the Nigerian authorities. This part of the conduct of international relations was the responsibility of the executive and was rarely likely to be subject to judicial direction. Abbasi only required that any request for assistance took into account relevant considerations. The application was therefore dismissed.
Judicial review is an extraordinary remedy limited in its scope. A core concept of our constitution is the separation of powers which requires the court to respect, amongst other things, the conduct of foreign relations by the UK government. In cases such as this, where the line can blur, the court is the ultimate arbiter as to whether something is justiciable and subject to judicial challenge.
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