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

A sufficient return to a writ of habeas corpus may be made without producing the detainee where reliable evidence establishes that a foreign authority retains custody and the respondent government cannot secure transfer. A domestic court should approach diplomatic communications in their international context and should be cautious before rejecting the interpretation given by responsible officials, particularly where that evidence is uncontradicted. The court’s jurisdiction cannot extend to foreign military authorities outside the domestic jurisdiction. It should also avoid directing the form of communications between the government and a foreign state on sensitive diplomatic matters.

The appeal concerned the return to a writ of habeas corpus issued in respect of Yunus Rahmatullah. The writ had been directed against the Secretaries of State after the Court of Appeal’s earlier decision in [2011] EWCA Civ 1540. Following a request for the applicant’s transfer from United States custody to the United Kingdom, the United States responded that he was lawfully detained by United States military forces and that any transfer would require appropriate security assurances. Senior officials of the Foreign and Commonwealth Office and Ministry of Defence understood the response as an effective refusal to transfer him to the United Kingdom.

The appellant argued that the letter left open further discussions and sought a further request for a straightforward answer. The issue was whether the Secretaries of State had made a sufficient return to the writ and should be discharged from further liability.

1. The Secretaries of State were entitled to relief. The United States response made it very difficult to contend that the United Kingdom had custody or de facto control of the applicant. It maintained the United States authorities’ position that they could continue to hold him, identified Pakistan as the more appropriate recipient of any transfer, and required security assurances before transfer. Together with the uncontradicted evidence of senior FCO and MoD officials, this established that the United States would not hand the applicant to the United Kingdom for release. The Secretaries of State had therefore made a sufficient return to the writ, despite not producing the applicant’s body, and no further order was made.
2. A domestic court should be wary of construing diplomatic correspondence in a manner inconsistent with the interpretation of a responsible FCO official giving formal evidence, where that evidence is not unconvincing and is not contradicted. Diplomatic communications between states may use language materially different from legal submissions between parties.
3. Even if the diplomatic letter could be read as leaving the matter open, it would be doubtful that a domestic court should direct the FCO or MoD how to communicate with a foreign government about a potentially sensitive diplomatic issue. Such intervention risked trespassing into the forbidden areas identified in [2011] EWCA Civ 1540.
4. The court did not need to determine whether the United States had failed to comply with obligations under the relevant memoranda or Geneva III or Geneva IV. The United States was not a party to the proceedings.
5. The writ had served its minimum constitutional function by requiring the United Kingdom Government to account for its responsibility and attempt to secure the applicant’s release. Habeas corpus could not extend the court’s reach to United States military authorities in Afghanistan.
6. The request for notes of three conversations between Mr Drew and United States government employees was refused because the conversations added nothing material to Mr Drew’s account and the respondents’ lawyers had inspected the notes.

The Master of the Rolls gave the principal judgment. Lord Justice Maurice Kay agreed, and Lord Justice Sullivan agreed with both judgments. No further order was made on the writ.

• Court of Appeal (Civil Division): Following the earlier decision in [2011] EWCA Civ 1540, the court held that the Secretaries of State had made a sufficient return to the writ and made no further order.
• High Court of Justice, Queen’s Bench Division, Divisional Court: The case is stated to be on appeal from this court, but its decision and citation are not given in the judgment.