C3 & Anor. v Secretary of State for Foreign, Commonwealth & Development Affairs

Habeas Corpus may be available where a detainee is outside the jurisdiction if the respondent has actual custody or a reasonable prospect of controlling custody sufficiently to secure production or release. The inquiry is fact-sensitive and must consider the circumstances as a whole. A foreign detaining authority’s offer to release a person subject to conditions does not, by itself, transfer or share control with a United Kingdom minister who can only respond to those conditions. Habeas Corpus is not an appropriate means of compelling diplomatic engagement, consular assistance, travel-document arrangements or repatriation. Such challenges ordinarily fall within judicial review, particularly where they concern foreign relations or national security.

C3 and C4, British citizens detained in Camp Roj in north-east Syria by the Autonomous Administration of North and East Syria, applied for writs of Habeas Corpus against the Secretary of State for Foreign, Commonwealth and Development Affairs. They had never been detained by United Kingdom authorities. The AANES had indicated that release would follow an official request by the United Kingdom and arrangements for repatriation.

The applicants argued that this created sufficient United Kingdom control over their custody, or at least a reasonable prospect of securing their production. The Secretary of State contended that the applicants remained under AANES control and that the requested relief would impermissibly require decisions concerning foreign relations, national security and consular assistance. The central issue was whether the Secretary of State had sufficient control over the applicants’ detention for Habeas Corpus to be available.

The applications were refused.

1. Control. Habeas Corpus may be directed against a person with physical custody or with sufficient factual control over custody to secure the applicant’s production. The authorities provide guidance rather than a series of rigid legal preconditions. The court must examine the whole factual context.
2. Foreign detention. The AANES retained control because it determined whether, and on what conditions, C3 and C4 would be released. The requirement that the United Kingdom make an official request and facilitate repatriation did not confer control on the Secretary of State. His ability to respond to conditions imposed by the detaining authority was not custody or control of custody.
3. Distinction from earlier cases. The overseas cases in which Habeas Corpus had issued involved additional features, including prior United Kingdom detention or transfer, an agreement or arrangement with the foreign detaining authority, and continuing international-law obligations. Those features were absent here. The case was therefore distinguishable from O’Brien and Rahmatullah. It was closer in substance to cases involving an attempt to require the executive to persuade a foreign government to release a detainee.
4. Nature of the relief. Issuing the writ would not merely test whether control existed. It would require the Secretary of State to undertake diplomatic engagement and a series of practical steps, potentially including travel documents, handover arrangements and repatriation. Habeas Corpus is an imperative remedy concerned with the lawfulness of detention, not a mechanism for supervising such future action.
5. Public law matters. Decisions concerning assistance to British nationals abroad, foreign relations and national security fall, if justiciable, within judicial review rather than Habeas Corpus. The court did not need to decide the foreign Act of State submissions or whether the detention was unlawful under Syrian law. The applications failed even on the assumption that there was prima facie evidence of unlawful detention.

These were first-instance applications in the Divisional Court of the High Court for writs of Habeas Corpus under CPR Part 87. The judgment does not state any prior appeal or lower-court decision in this litigation.