AC-2025-LON-000997 - [2025] EWHC 1970 (Admin)

In the original pleadings, the parties appeared to be at odds as to the justiciability of this claim, on the basis that—as the Foreign Secretary put it—the claim intrudes into the “forbidden area” of foreign affairs. By the time of the hearing before me, however, it was common ground that this claim is justiciable. That is correct. In R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [2003] UKHRR 76, Lord Phillips MR (giving the judgment of the Court of Appeal) said this at [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 that is determinative. 

(ii)

Despite extensive citation of authority there is nothing which supports the imposition of an enforceable duty to protect the citizen. The European Convention on Human Rights 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 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.”

These principles mean that it is no answer to a claim such as this that the action which the claimants requested of the Foreign Secretary falls into the category of diplomatic or consular protection or assistance. A finer-grained analysis than that is required. The court must focus on the particular aspects of the decision-making process that are challenged and the particular remedies which are sought. Once the court’s focus has been directed in that way, it can go on to consider whether the questions it is being asked to determine fall within any “forbidden area”, such as the conduct of foreign policy. Even if they do not, the area may be one which for institutional or constitutional reasons attracts a wide margin of discretion.

At one stage, Mr Tim Owen KC for the claimants submitted that the considerations which justify caution in a challenge to a decision not to afford diplomatic protection are different from those which apply to a decision not to give consular assistance. I do not accept that any such clear dividing line can be drawn. In either case, it is likely to be inappropriate for the court to entertain grounds of challenge which require it to second guess the weight that a decision-maker has given to policy factors, but less problematic to consider whether a decision is vitiated by a process rationality defect.

Similarly, relief which requires the Foreign Secretary to take some particular action (such as the mandatory order sought by the claimants requiring the Foreign Secretary to “take all reasonable steps to assist the Claimants in exiting Gaza”) is likely to come closer to the “forbidden areas” referred to by Lord Phillips than relief requiring a decision-maker to re-take a defective decision.