Secretary of State for Foreign and Commonwealth Affairs and another v Yunus Rahmatullah

Facts

In 2004 Mr Rahmatullah was captured by British forces in Iraq and transferred to the custody of United States forces under arrangements between the two governments, including a memorandum of understanding which provided, among other things, for the return of transferred detainees to the United Kingdom on request. He was later moved by the US authorities to Bagram in Afghanistan, where he was held for years without trial. Proceedings for habeas corpus were brought on his behalf against the Foreign Secretary and the Defence Secretary.

History

The Divisional Court refused the application. The Court of Appeal issued the writ, requiring the Secretaries of State to make a return. The UK government then asked the US authorities to return him; the US authorities declined. The Court of Appeal held that this was a sufficient return to the writ. The Secretaries of State appealed against the issue of the writ, and Mr Rahmatullah cross-appealed against the finding that the return was sufficient.

Issue

Whether a writ of habeas corpus may issue against a respondent who does not have physical custody of the detainee but may have the ability to secure his release; whether there was sufficient uncertainty about the UK ability to obtain his release to justify issuing the writ; and whether the US response was a sufficient return.

Held

The appeal of the Secretaries of State was dismissed: the writ had been properly issued. The cross-appeal of Mr Rahmatullah was also dismissed: the response of the US authorities was a sufficient return.

Ratio

• Habeas corpus may issue against a person who does not have physical custody of the detainee where there is reason to believe that the respondent has control over the detention, in the sense of a legal or practical ability to bring about the release of the detainee; it is for the respondent to show by the return that it does not have that control.
• Where the respondent, having been required to make a return, shows that it sought the release or return of the detainee from the custodian and that the request was refused, it has shown that it lacks the necessary control and the writ is answered.

Key reasoning

• Habeas corpus is concerned with the substance of control over the body of the detainee, not merely with physical custody, so a person who can procure release may be required to account for the detention.
• The memorandum of understanding gave the United Kingdom an apparent entitlement to request return, and the Geneva Conventions imposed obligations on the transferring state in relation to detainees it hands over; these gave reason to believe the UK might be able to secure his release.
• The court should not decline to issue the writ simply because the executive asserts that diplomatic considerations make a request inappropriate; the writ protects liberty and the court must examine whether control exists.
• Habeas corpus requires the respondent to produce the body or justify the detention; it does not require it to take steps beyond those within its power, so once the US refused, the writ could not require more.

Where it fits in the module

Listed under contempt of court and remedies against the Crown, Rahmatullah illustrates the coercive character of the writ of habeas corpus against ministers and the obligation of the executive to comply with court orders, even where compliance engages diplomatic relations. It also shows the limits of judicial remedies where the decisive power lies with a foreign state.

Criticisms

• Requiring only a request and accepting a refusal as a sufficient return may make the writ largely symbolic where the UK has transferred a detainee to an ally.
• Treating a non-binding diplomatic arrangement as creating control arguably stretches the concept beyond its traditional basis in legal or practical power.
• Conversely, issuing the writ against the executive in a matter of foreign relations has been criticised as intruding into the conduct of diplomacy.