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

The Foreign Secretary is responsible for the exercise of the Royal prerogative to provide consular assistance to those in foreign states. The FCDO has published online guidance on when that power will be exercised. In a crisis, consular assistance will usually be provided to British citizens and dual nationals. It may sometimes be extended to Commonwealth nationals and “non-British immediate family members”. It is not usually provided to nationals of other countries, though decisions to assist foreign nationals may be made on a case-by-case basis, based on the specific circumstances of the individual or individuals in question.

On 14 December 2023, following the outbreak of hostilities in Gaza, the Foreign Secretary adopted the Extended Eligibility Criteria (“EEC”), which provide that consular assistance in exiting Gaza may be given to another class of non-British nationals: those who (i) have a spouse/partner or a child aged 17 or under currently living in the UK and (ii) hold valid permission to enter or remain in the UK for longer than six months. Outside these policies, the Foreign Secretary retains a residual discretion to provide consular assistance to other non-British nationals in exceptional cases.

As at 25 June 2025, the Defendant had exercised his discretion to provide consular assistance to exit Gaza to persons falling outside of the established policies (including the EEC) in four exceptional cases. These included: (i) two families where one or both parents were eligible for consular support, but whose children did not have leave to enter the UK for longer than six months; (ii) a fourteen-year-old child with half-siblings in the UK, whose father had died and whose mother had abandoned him; and (iii) a vulnerable elderly couple with adult children in the UK, both of whom had extant leave to remain in the UK.

Sarah Taylor is Director for Consular and Crisis at the FCDO. In her first witness statement in these proceedings, dated 29 April 2025, she explained that between November 2023 and early May 2024 departures from Gaza took place through the Rafah border crossing with Egypt. That crossing was seized and closed by the Israeli military on 6 May 2024. From that point onwards, departures have only been possible through the Kerem Shalom crossing into Israel, and then on into Jordan. Departures are now heavily restricted and can only be initiated through an inter-state request to a body that is part of the Israeli Ministry of Defence. The body is known as the Coordination of Government Activities in the Territories (“COGAT”).

Ms Taylor refers to the process of providing consular assistance to exit Gaza as “an immensely complex exercise” which “involves sustained work and negotiation with multiple foreign state actors, and with international humanitarian partners… [and] a sustained expenditure of political and diplomatic capital with Israel and others”. She gives eight reasons for this.

First, the process of obtaining clearance from COGAT is opaque. No reasons are given for decisions. The FCDO’s assessment is that frequent requests run the risk of overwhelming the Israeli process, making it harder for the government to secure clearance in the future for others.

Secondly, clearance must be obtained from Jordan as a point of transit.

Thirdly, the individuals require permission to enter the UK (or another third country), as neither Israel nor Jordan will permit entry without being assured of their rapid onward travel.

Fourthly, the FCDO must identify and request the assistance of an appropriate humanitarian partner in Gaza, which is capable of locating the individuals and getting them to Kerem Shalom as safely as possible. Ms Taylor notes that some countries have chartered commercial buses within Gaza to move their nationals to Kerem Shalom (which she considers a “risky option”). On one occasion in the past the FCDO offered an individual the opportunity to take a bus operated by a third country. To date, only two partners have been identified. They have to balance such requests alongside their own humanitarian work and other consular assistance requests from other countries.

Fifthly, sufficient funds must be available for those being moved to reach their destination.

Sixthly, FCDO officials in the region must be available and able to safely travel to the Kerem Shalom crossing to receive the individuals being moved following processing by Israel.

Seventhly, any issues at the crossing must be managed and navigated successfully. Ms Taylor notes that, whereas in the early stages of the conflict this required repeated top-level diplomatic and political engagement, the relationship is now primarily between officials. However, in the past COGAT has refused requests to move people on specific days. Further, formal clearance from the Israeli authorities does not equate to permission to approach the Kerem Shalom crossing, which is itself guarded by the Israeli military and requires their approval. The attitude of the units guarding the crossing (who are rotated) to such requests has been variable.

Eighthly, the FCDO must have the capacity to transport the individuals (under escort) through Israel to the Allenby/King Hussein border crossing to Jordan. There, the individuals will be processed by Israeli and Jordanian officials before being received on the Jordanian side by FCDO officials from the British embassy in Amman.

The FCDO’s position is that it is essential to maintain a limited and targeted approach to providing consular assistance in order to make effective use of its resources (in particular, diplomatic capital).

In her second witness statement dated 20 May 2025, Ms Taylor said that, on 13 May, the FCDO had been contacted by COGAT to put forward names for inclusion in an upcoming “evacuation”. COGAT informed the FCDO that it would be able to put forward any Palestinian citizens, irrespective of whether they were dual nationals, provided that the receiving country was willing to issue those individuals a visa/residency permit. She noted that this was the first time that COGAT had explicitly informed the FCDO that it was willing to accept Palestinian citizens for exit from Gaza, regardless of whether they had dual nationality, although (as noted in her first witness statement) in practice such exceptions had already been made in the past. Ms Taylor’s assessment of this change was that “while it appears the Israeli authorities may more readily accept requests for exiting Gaza [than in March 2025], that position may change again.”

In her third witness statement, Ms Taylor confirmed that, after the COGAT request, two departures took place in May, but two other departures scheduled to take place in June were both postponed.