Court of Appeal set to determine the decision-making duties the Foreign Secretary owes British citizens mistreated abroad

Court of Appeal set to determine the decision-making duties the Foreign Secretary owes British citizens mistreated abroad

The Secretary’s ongoing refusal to reach a decisive view on whether he has been subject to Court of Appeal will today hear an appeal brought on behalf of Nnamdi Kanu, in relation to the Foreign extraordinary rendition.

Mr Kanu’s legal arguments are summarised in this document.

The appeal challenges the High Court judgment of Mr Justice Swift of 23 March 2023, that effectively permits the Foreign Secretary to procrastinate indefinitely and make no decision on the circumstances surrounding the torture, detention and extraordinary rendition of Mr Kanu. Mr Kanu’s legal team will argue it is irrational to evade a decision and, once one is made, the decision on appropriate action can be made on a proper basis.

Mr Kanu’s brother, Kingsley, said today:

"I’m very pleased that the court has agreed to this appeal. My brother has been in detention for nearly two years, his health, as well as his life, is at risk. I hope that the court sees the need for decisive action on this important issue and my brother’s circumstance, and that I can soon see the safe return of my brother to his family."

Background to the case

On 19 June 2021, Mr Kanu was abducted from the airport in Nairobi, Kenya, and then detained and tortured for around ten days in Kenya. In documents filed in Nigerian court proceedings, the Nigerian government admitted its agents ‘intercepted’ and detained Mr Kanu, without following any due process. Mr Kanu was then flown by private plane from Kenya to Nigeria on around 27 June 2021.

Ever since then, Mr Kanu has been detained in solitary confinement in a tiny cell at the headquarters of the Department of State Services, the Nigerian intelligence agency, in Abuja, Nigeria. He has been repeatedly denied access to medical assistance and to his legal team. Mr Kanu has requested consular assistance from the British government, but in the past 16 months, British High Commission officials have been permitted to visit him on only four occasions.

On 22 July 2022, the UN Working Group on Arbitrary Detention recorded ‘very serious concern for the well-being of Mr Kanu’ who ‘has been denied medical treatment and medication for his heart condition.’ They called for his immediate release from detention. Despite this compelling evidence from an international authority, as well as the mass of other evidence, the Foreign Secretary has failed to reach a firm view on the extraordinary rendition of Mr Kanu. Relying on the Court of Appeal case of Abassi, the Foreign Secretary has used this lack of a firm view to evade responsibility and to avoid assisting Mr Kanu.

Mr Kanu’s family’s challenge was heard before Mr Justice Swift at the High Court on 15 November 2022, and judgment was handed down on 23 March 2023.

High Court judgment

In the judgment, Mr Justice Swift noted the serious wrongs committed against Mr Kanu, including that in 2017, the Nigerian state had attempted to kill him, that the Nigerian authorities captured him in 2021 whilst he was in Kenya and subjected him to inhuman and degrading treatment, and crucially, that he was subject to ‘rendition’.

The court also highlighted extracts from the Opinion of the UN Working Group on Arbitrary Detention and the Nigerian courts, which unanimously found that Mr Kanu was subject to extraordinary rendition and called for his release on the basis that his ongoing detention is arbitrary.

However, despite clearly recognising the gravity of the wrongs committed against Mr Kanu, the court disappointingly held that Mr Kanu has no legitimate expectation that the British government should reach a firm view for itself on what had occurred or its seriousness.

The court also held that it was rational for the Foreign Secretary to maintain a ‘provisional view’ on whether Mr Kanu has been subject to extraordinary rendition, despite the overwhelming evidence. This is particularly surprising given that Mr Justice Swift reached the view that Mr Kanu had been ‘rendered’ on the basis of the evidence before him.

Court of Appeal hearing – 22 June 2023

The Court of Appeal will hear Mr Kanu’s family’s appeal today, 22 June 2023. The case will set an important precedent on whether the British government has the right to avoid making a decision on whether a British citizen is subject to fundamental breaches of international law, in spite of overwhelming evidence of violations of their rights.

Mr Kanu’s family are represented by John Halford and Shirin Marker of Bindmans LLP, together with barristers Charlotte Kilroy KC, Tatyana Eatwell, and Isabel Buchanan.