Rahmatullah v Secretary of State for Foreign & Commonwealth Affairs & Anor

In habeas corpus proceedings, the detainer bears the burden of showing that detention is lawful. A writ may issue where a respondent once had control of the detainee and there is genuine doubt whether it retains sufficient de facto control to procure production. The writ may be used to test that issue.

That uncertainty may concern the practical effect of international obligations and intergovernmental arrangements, not merely disputed facts. A bare assertion that a request to another state would be futile does not displace a substantial case that the respondent can secure release or return. Foreign-relations non-justiciability is not, without an established state-interest basis, an independent reason to withhold the writ.

British forces captured the Pakistani applicant in Iraq in 2004 and transferred him to United States forces under a memorandum of understanding. The United States then moved him to Bagram Airbase in Afghanistan without the United Kingdom’s formal agreement. He remained detained after a United States Detainee Review Board determined that continued internment was unnecessary and that he should be released to Pakistan.

The Divisional Court refused habeas corpus: [2011] EWHC 2008 (Admin). The applicant appealed, contending that his detention was unlawful and that the Secretaries of State retained sufficient control, through the Geneva Conventions and the memoranda of understanding, to secure his release or return. The central issue was whether that potential control justified issuing a writ despite the foreign-relations context.

Appeal allowed unanimously. The Court directed that a writ of habeas corpus be issued. The Master of the Rolls gave the principal judgment, with which Maurice Kay and Sullivan LJJ agreed.

1. For the application, unlawful detention was established because a person held against their will need not prove that detention unlawful: the detainer must justify it. The Secretaries of State did not challenge that principle or its applicability.

2. The controlling question was whether the Secretaries of State retained sufficient de facto control over a person physically held by United States forces. Barnardo v Ford [1892] AC 326 and R v Secretary of State for Home Affairs, ex p O’Brien [1923] 2 KB 361 established that a writ cannot compel a respondent to regain custody certainly lost, but may issue where there is real doubt whether control has ceased. The writ is then a means of testing the position.

3. The distinction drawn below between factual uncertainty and uncertainty about the effectiveness of agreements was unsound. The practical enforceability of an arrangement is ultimately a factual question. On the material available, Geneva IV and the memoranda made a substantial case that the United Kingdom could demand the applicant’s release or return. The unsupported assertion that such a request would be futile carried little weight. The Court did not determine conclusively the international-law questions, particularly in the absence of the United States.

4. The foreign-relations point did not alter that conclusion. The forbidden area doctrine did not itself negate control and had not been advanced as an independent basis for refusing relief. The judicial-review authorities concerning diplomatic assistance were materially different. No evidence showed that use of available procedures would damage the United Kingdom’s foreign relations. Maurice Kay LJ added that state interests might in another case justify restraint, but had not been demonstrated here.

• Court of Appeal (Civil Division) Allowed the appeal and directed issue of a writ of habeas corpus: [2011] EWCA Civ 1540.
• Divisional Court, Queen’s Bench Division Refused to grant the writ: [2011] EWHC 2008 (Admin).