Rahmatullah v Secretary of State for Foreign Affairs & Anor

A writ of habeas corpus requires the respondent to have actual power or control to deliver the detainee. The writ may issue to investigate uncertain arrangements where the respondent’s control is genuinely unclear. It cannot issue merely to compel a request to a third party whose response may or may not be favourable. The court’s jurisdiction is not excluded by the foreign-relations principle where the respondent possesses the necessary control, but issuing the writ must be proper and efficient. Arrangements which create no domestic legal power, and international obligations which have no relevant domestic effect, do not establish control.

The claimant, a Pakistani national captured by British forces in Iraq in 2004 and transferred to United States custody at Bagram Airbase, sought a writ of habeas corpus against the Secretaries of State for Foreign and Commonwealth Affairs and Defence.

He argued that the first memorandum of understanding between the United Kingdom and the United States, together with the Geneva Conventions, gave the Secretary of State sufficient control to request his release or return. The Secretary of State argued that the evidence showed no such power or control and that the claim entered the forbidden area of foreign relations. The central issue was whether habeas corpus could be used to test or exert the alleged control.

1. Application dismissed. The Secretary of State was not shown to have power or control over the claimant sufficient to make the issue of habeas corpus proper and efficient.
2. The proper respondent is the person having custody, power or control of the prisoner. Physical custody is unnecessary, but the respondent must possess an actual power to deliver the prisoner or, in effect, direct his delivery. A merely persuasive capacity is insufficient.
3. Barnardo v Ford [1892] AC 326 and Ex p O’Brien [1923] 2 KB 361 concerned uncertainty about the arrangements governing custody. They justified issuing the writ to obtain clarification. They did not establish that a possible request to a third party, which might or might not be accepted, constituted sufficient control.
4. The present case was materially different. The arrangements with the United States were fully evidenced. The memoranda were not legally binding and, even if they had been, would operate only internationally. The Geneva Conventions did not create the necessary domestic power; the domestic effect of the Geneva Conventions Act 1957 was limited to criminalising grave breaches.
5. Mwenya [1960] 1 QB 241 supported the requirement that the writ be proper and efficient, which depended on a real power of control. The foreign-relations authorities, Abbasi [2002] EWCA Civ 1598 and Al-Rawi [2008] QB 289, did not independently determine the claim, but the absence of control left it within the forbidden area.
6. The United States’ statement that the claimant remained under its control and subject to further review did not establish that a request from the Secretary of State would be obeyed. The writ was therefore unavailable.