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

Mr Milford for the Foreign Secretary submitted that the Strasbourg Court has never held that Article 8 does or could impose a duty to provide consular assistance to help an individual exit a third country, including by intervening with a foreign state on the individual’s behalf. Such a proposition would mark a major departure from existing ECHR jurisprudence: see HF v France (2022) 75 EHRR 31. To endorse it would be to go further than one could be confident the Strasbourg Court would go.

The claimants—who are not UK nationals—seek to derive from Article 8 a substantive duty of diplomatic assistance equivalent to “quasi-repatriation”, on the sole basis that they share a family life with BSJ, who is in the UK. No decision of the Strasbourg Court has come close to suggesting the Convention could confer such a duty. Such a duty would be contrary to established Convention principles, given that:

The first principle is expressed in broad terms in Bertrand Russell and subsequent cases. It explicitly reflects Article 34 of the Vienna Convention on the Law of Treaties and is founded on the principle of respect for state sovereignty and independence. It applies fully in this case, since the consular assistance the claimants seek would require a range of diplomatic interventions with Israel and Jordan, entailing what the Foreign Secretary has rationally concluded would be an immensely complex exercise, which would require the expenditure of diplomatic capital. It could have cascading effects for other departures and wider diplomatic relations.

The contexts in which the Strasbourg court has held a contracting state to be under a positive obligation to take action have never involved diplomatic intervention. Al-Skeini v UK (2011) 53 EHRR 18 makes clear that jurisdiction under Article 1 ECHR is predominantly territorial, subject to certain limited exceptions, none of which apply here. The Article 1 obligation upon Member States is to secure the ECHR rights and freedoms to “everyone within their jurisdiction”. The existence of an Article 8 “family life” is not itself a basis for saying that the claimants are within the UK’s jurisdiction for all purposes: cf. the more limited scope of Abbas v SSHD [2018] 1 WLR 533, [17]. If it were otherwise, the state would owe such obligations to persons all over the world simply because they enjoyed a “family life” with persons located within its borders. That would undermine the territoriality principle.

The claimants’ arguments underscore the reasons why Article 8 should not apply in the first place. They would require the court to balance the claimants’ acute needs against incommensurable considerations of diplomacy (with the potential to affect other potential refugees in Gaza), and the UK’s wider diplomatic relationship with Israel and Jordan. They would require the court to enter the forbidden area of foreign relations to assess for itself the weight to be attributed to different factors, an assessment which is both unnecessary and inappropriate.

If (quod non) Article 8 is engaged at all, the refusal on 6 June 2025 was a proportionate interference with that right in light of: (i) the very wide margin of discretion in this area; and (ii) the cogent evidence of Ms Taylor and Ms Anderson.