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Kanu, R (on the application of) v The Secretary of State for Foreign, Commonwealth and Development Affairs

[2023] EWCA Civ 796
A British man was wrongly taken to Nigeria and is being held in bad conditions. His brother sued the UK government because they didn't say if the Nigerian government broke the law. The court said the government doesn't have to make that statement because it could make things worse for the man, but they *did* do some things to try and help him.

Key Facts

  • Nnamdi Kanu, a British and Nigerian national and leader of the Indigenous People of Biafra (IPOB), has been detained in Nigeria since June 27, 2021, on criminal charges.
  • Mr. Kanu was allegedly abducted in Kenya by Nigerian agents, illegally rendered to Nigeria, and subjected to inhumane and degrading treatment.
  • The Nigerian Court of Appeal ruled Mr. Kanu's rendition illegal, but this decision was stayed pending appeal to the Supreme Court.
  • Mr. Kanu's brother appealed to the UK court, arguing the Foreign Secretary failed to take sufficient steps to assist Mr. Kanu, including not forming a concluded view on whether Mr. Kanu was a victim of extraordinary rendition.
  • The UK Foreign Secretary argued that forming and publishing a concluded view would risk harming Mr. Kanu's situation and that the actions taken were sufficient.

Legal Principles

The Foreign Secretary has a duty to consider requests for consular assistance for British nationals detained abroad.

R (Abbasi) v Secretary of State for Foreign and Commonwealth Office (2003) UKHRR 76

The Foreign Secretary's consideration of a request must be informed by an appreciation of the relevant circumstances, but does not require a prior 'concluded view' on the legality of the detention.

This case, referencing Abbasi

The Foreign Secretary's decision is reviewable if irrational or contrary to legitimate expectation, but the court cannot interfere with foreign policy decisions.

R (Abbasi) v Secretary of State for Foreign and Commonwealth Office (2003) UKHRR 76

There is no obligation on the Foreign Secretary to share their internal view on a case, especially if it concerns foreign relations.

This case

Outcomes

The appeal was dismissed.

The court found the Foreign Secretary's actions were not irrational and that there was no legitimate expectation that a concluded view on extraordinary rendition needed to be formed before taking action. The court upheld the Secretary's approach of maintaining a 'provisional' view given the ongoing legal proceedings in Nigeria and potential risks to Mr. Kanu.

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