On 8 May 2023, Lord Justice Lewis, a senior Court of Appeal judge, granted the family of Nnamdi Kanu permission to appeal the High Court judgment that found that the FCDO could lawfully evade reaching any conclusion on whether Mr Nnamdi Kanu has been tortured, subjected to extraordinary rendition and arbitrarily detained. The case has major implications for all British Citizens mistreated abroad who may look to the UK for help.
Mr Kanu is the British national leader of the Indigenous People of Biafra (IPOB), a group that calls for self-determination for Biafra Land. In June 2021, Mr Kanu was abducted by Nigerian security services. For nearly two years, he has been held in solitary confinement in a cell at the Nigerian intelligence agency headquarters in Abuja, Nigeria.
Since his detention, Mr Kanu’s family have been asking the British government to take steps to secure his release on the grounds that there was no lawful basis for bringing him to Nigeria, and he was therefore subject to extraordinary rendition. However, the Foreign Secretary has, to date, failed to reach any firm view on whether Mr Kanu was subject to extraordinary rendition. He claims only a ‘provisional’ view is possible, despite the mass of evidence and the views of the UN and the Nigerian Court of Appeal.
The family’s legal team brought the challenge on the basis that reaching a firm, concluded view is necessary to lawfully determine what steps should be taken to assist Mr Kanu. An earlier Court of Appeal case, Abassi, held that lawful decision-making on assisting British Citizens detained abroad depended on reaching such a conclusion.
High Court judgment
In an unconventional ruling on 23 March 2023, the High Court dismissed the Kanu family’s claim for judicial review of the failure of the British government to reach a firm view on Mr Kanu’s rendition. Notably, Mr Justice Swift observed that Mr Kanu was subject to rendition. Despite this, Mr Swift 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.
Appeal to the Court of Appeal
Mr Kanu’s legal team found the High Court ruling ‘extremely difficult to reconcile with long-standing legal precedent and the principle underpinning it’ – that British citizens can expect protection from their national government.
On this basis, Mr Kanu’s family applied to the Court of Appeal for permission to appeal the High Court ruling on the following grounds:
- The Court erred in finding that Mr Kanu’s family did not have a legitimate expectation that the FCDO would form a firm view as to whether Mr Kanu has been the victim of extraordinary rendition in violation of international law
- The Court erred in finding FCDO decision not to reach a firm view was not irrational
- The Court erred in finding that the FCDO is not obliged to comply with procedural fairness standards when considering risks of British citizens at serious risks abroad
In granting permission to appeal to the Court of Appeal, the Lord Justice Lewis noted:
The grounds of appeal raise important issues concerning the scope of the obligations on the respondent in relation to requests for consular assistance in respect of British nationals detained abroad and the proper interpretation and application of the decision of the Court of Appeal in R(Abassi) v Secretary of State for the Foreign and Commonwealth Office  UKHRR 76. For those reasons, there is a compelling reason for the appeal to be heard, within the meaning of CPR 52.6(1)(b). Permission is granted on all three grounds.
Furthermore, citing the urgency arising from the continued solitary confinement of Mr Kanu, the Court of Appeal have ordered that the appeal be expedited.
Mr Kanu’s brother, Kingsley, said today:
My family is delighted that the Court of Appeal has unhesitatingly recognised the importance and urgency of Nnamdi’s case and have hope in our hearts that will be reflected at the hearing and its judgment in due course.
The hearing of the appeal has been listed for Thursday 22 June 2023.