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

Habeas corpus may lie against a person without physical custody where they have de facto control. The authorities concern a person responsible for the original detention who retains an unqualified power to secure transfer into their custody. The remedy does not extend to a government that neither caused the detention nor has unconditional power to obtain release merely because it can seek or facilitate release by undertaking substantial repatriation, diplomatic and security arrangements. A decision whether to provide such assistance is a matter for public-law review, subject to the principles governing consular assistance and foreign relations. Habeas corpus cannot be used to bypass that review.

C3 and C4, British women detained by the AANES in Camp Roj after travelling to Syria to join ISIL, sought habeas corpus against the Foreign Secretary. The AANES indicated that it would release them if the UK Government made an official request and undertook their repatriation. A Divisional Court refused the applications: [2022] EWHC 2772 (Admin).

On appeal, the Foreign Secretary accepted that his refusal could in principle be challenged by judicial review, but disputed the availability of habeas corpus. The central issue was whether the AANES’s offer gave the UK Government de facto control over the applicants’ detention.

The appeal was dismissed. Underhill LJ gave the leading judgment, with which Holroyde LJ and Elisabeth Laing LJ agreed.

1. Constructive custody. Actual physical custody is not essential to habeas corpus. The writ may investigate whether a respondent has power or control over a detainee, including de facto control rather than an enforceable legal right. The authorities, including Barnardo v Ford [1892] AC 326 and R v Secretary of State for Home Affairs, ex p O’Brien [1923] 2 KB 361, must however be read in their factual and legal context.
2. Context of the earlier authorities. In O’Brien and Rahmatullah v Secretary of State for Defence [2012] UKSC 48, the UK Government had been responsible for the original detention and had transferred the detainee to a foreign authority under arrangements permitting return on request. Those decisions did not establish that habeas corpus lies whenever a government may be able to procure release from a foreign detainer. The absence of original responsibility pointed against constructive custody, consistently with Ex p Mwenya [1960] 1 QB 241 and Re Sankoh.
3. Qualified power. The AANES’s offer was conditional on the UK Government arranging repatriation. Compliance required travel documents, border permissions, transport, personnel, security measures and diplomatic negotiations. That qualified and conditional power was insufficient. Constructive custody requires an unconditional de facto power to obtain release or re-transfer into the respondent’s custody.
4. Proper remedy. A refusal to provide assistance to secure release from foreign detention may be challenged by judicial review under the principles summarised in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 159. The court may review the decision on ordinary public-law grounds, including irrationality and legitimate expectation, while respecting limits concerning foreign policy and diplomatic relations. Habeas corpus could not bypass that assessment.
5. The applicants’ dire conditions, citizenship and humanitarian circumstances did not enlarge the scope of habeas corpus. Their real objective was repatriation, and after handover there would be no continuing detention for the Foreign Secretary to justify. The request to remit the proceedings for pursuit as judicial review was refused; fresh proceedings could be commenced if advised.

• Court of Appeal (Civil Division) — The appeal was dismissed.
• High Court of Justice, King’s Bench Division, Administrative Court — A Divisional Court comprising Lewis LJ and Jay J refused the habeas corpus applications in [2022] EWHC 2772 (Admin).