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

Habeas corpus may issue against a respondent who lacks physical custody where the respondent has control in fact, or there are reasonable grounds for concluding that the respondent can secure the detainee’s production. Uncertainty about the practical effectiveness of an intergovernmental agreement may justify issuing the writ so that control can be tested.

The writ is available as of right where its conditions are met. It does not become discretionary because exercising apparent control may involve diplomatic communication. The respondent must exercise that control or provide an evidence-based explanation why production is impossible. A bona fide request and a foreign state’s effective refusal may constitute a sufficient return.

British forces detained Yunus Rahmatullah in Iraq and transferred him to United States forces under a 2003 memorandum of understanding. He was later transferred to Afghanistan without the United Kingdom’s prior agreement and remained in United States custody. The Court of Appeal, reversing the Divisional Court, issued habeas corpus because it was uncertain whether the United Kingdom could procure his return under the memorandum: [2011] EWCA Civ 1540.

The United Kingdom then requested his release. After the United States responded that it regarded him as lawfully detained and contemplated transfer to Pakistan, the Court of Appeal held that the Secretaries of State had made a sufficient return: [2012] EWCA Civ 182.

The Secretaries of State appealed against the issue of the writ. Mr Rahmatullah cross-appealed against the finding that the return was sufficient. The central questions concerned the degree of control required for habeas corpus, the relevance of foreign-affairs considerations, and the sufficiency of the response to the writ.

1. Disposition. The Secretaries of State’s appeal against the issue of habeas corpus was dismissed unanimously. Mr Rahmatullah’s cross-appeal was dismissed by a majority of five to two. Lady Hale and Lord Carnwath dissented on the cross-appeal.
2. Lord Kerr, with whom Lord Dyson and Lord Wilson agreed, held that an applicant must show either actual physical control or reasonable grounds for concluding that the respondent can assert control. Control is a factual matter. It does not depend solely on a legally enforceable right. The 2003 memorandum, under which transferred detainees were to be returned without delay upon request, provided ample grounds for believing that the United Kingdom could procure Mr Rahmatullah’s return. Its political and non-binding character did not justify assuming that the United States would disregard it.
3. The issue of the writ did not dictate foreign policy. It required the Government to exercise the control which it appeared to possess or explain, by efficacious evidence, why control did not exist. Habeas corpus is available as of right when its conditions are satisfied and is distinct from discretionary judicial review.
4. Lord Kerr considered that there was clear prima facie evidence of unlawful detention. Mr Rahmatullah was protected by the Fourth Geneva Convention. His transfer from Iraq was prima facie contrary to article 49, and the United Kingdom’s obligations under article 45 required effective corrective measures or a request for his return. Lord Phillips and Lord Reed nevertheless reserved whether habeas corpus was available where the United Kingdom’s original detention and transfer involved no established civil wrong under English law. Their agreement with dismissal of the appeal did not resolve that question.
5. On the cross-appeal, the majority held that the United States’ response, read with the evidence of senior British officials, effectively refused transfer to United Kingdom custody. The Court of Appeal was entitled to find that the uncertainty about control had been resolved adversely to Mr Rahmatullah and that the return was sufficient.
6. Lady Hale and Lord Carnwath would have allowed the cross-appeal. In their view, neither government had addressed the United Kingdom’s continuing rights under clause 4 of the 2003 memorandum and its responsibilities under the Fourth Geneva Convention. They would have required a renewed request expressly invoking those matters.

1. United Kingdom Supreme Court: dismissed the Secretaries of State’s appeal against the issue of the writ and, by a five-to-two majority, dismissed Mr Rahmatullah’s cross-appeal against the finding that the return was sufficient: [2012] UKSC 48.
2. Court of Appeal: held that sufficient uncertainty about the Secretaries of State’s practical control justified issuing habeas corpus: [2011] EWCA Civ 1540.
3. Court of Appeal: subsequently held that the United Kingdom had made a bona fide request and that the United States’ response established a sufficient return to the writ: [2012] EWCA Civ 182.
4. Divisional Court: refused to issue the writ because it considered that the Secretaries of State lacked the requisite control. Its decision was reversed by the Court of Appeal.