Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah: SC 31 Oct 2012

The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to Afghanistan, but were not notified. He remained detained by US Forces. An agreement had been in place as to the treatment of prisoners in accordance with international obligations,and which provided that he should be returned to the UK. He complained that by doing nothing to secure his return, the government had colluded in his unlawful rendition, and the Court of Appeal had granted a writ of Habeas Corpus requiring the UK government to seek his return to the UK. The Secretary of State now appealed.
Held: The appeal was dismissed. The respondents cross appeal was dismissed by a majority. It was not necessary to show that the government had actual custody of the claimant, but only that they had influence which might be effective. Habeas corpus remains a flexible remedy.
That the Memorandum of Understanding (MOU) was not binding in law did not reduce its significance. The appellant had relied on the MOU to show that it had complied with its obligations under the Geneva Conventions, and the claim that a request for his return was a bare statement unsupported by other evidence.
Though the issue of the legality of his detention did not conclude the matter, the evidence suggested that his continued detention was unlawful.
The grant of a writ of habeas corpus was not an interference by the courts with foreign relations. The effet was to require evidence if there was such that the appellant did not have any control.
‘Memoranda of Understanding or their equivalent, Diplomatic Notes, are therefore a means by which courts have been invited to accept that the assurances which they contain will be honoured. And indeed courts have responded to that invitation by giving the assurances the weight that one would expect to be accorded to solemn undertakings formally committed to by responsible governments. It is therefore somewhat surprising that in the present case Mr Parmenter asserted that it would have been futile to request the US government to return Mr Rahmatullah. As the Master of the Rolls pointed out in para 39 of his judgment, this bald assertion was unsupported by any factual analysis. No evidence was proffered to sustain it. ‘
Lord Kerr contrasted the availability and purpose of judicial review and habeas corpus: ‘The fallacy in the suggestion that habeas corpus should not be available where judicial review is not, lies in its conflation of two quite different bases of claim. The mooted judicial review application would proceed as a challenge to the propriety of the government’s decision not to apply to the US authorities for Mr Rahmatullah’s return. The application for habeas corpus does not require the government to justify a decision not to make that application. It calls on the government to exercise the control which it appears to have or to explain why it is not possible (not why it is not reasonable) to do so.
Apart from the differing nature of the two claims, the fact that habeas corpus, if the conditions for its issue are satisfied, is a remedy which must be granted as a matter of automatic entitlement distinguishes it from the remedy of judicial review which can be withheld on a discretionary basis. It is unsurprising that habeas corpus is available as of right. If there is no legal justification for a person’s detention, his right to liberty could not depend on the exercise of discretion.’

Lord Phillips, Lady Hale, Lord Kerr, Lord Dyson, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 48, [2012] WLR(D) 301, [2012] 3 WLR 1087, UKSC 2012/0142, UKSC 2012/0033
Bailii, Bailii Summary, SC Summary, SC
Geneva Conventions of 1949 and their Additional Protocols
England and Wales
See AlsoOthman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
CitedLukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Appeal fromRahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another (No 2) CA 23-Feb-2012
The claimant had been arrested by UK armed forces in Iraq, and pased to the US against an agreement as to his treatment. He had been taken instead.
Held: The UK needed to have in place an agreement which it could point to as showing that it . .
Appeal fromRahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another CA 14-Dec-2011
The claimant appealed against refusal of an order for habeas corpus. He was held by US forces in Afghanistan. He had been captured by British Forces and handed over to US forces and held in Bagram.
Held: The appeal succeeded. . .
CitedSecretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .
CitedMT (Algeria) and others v Secretary of State for the Home Department CA 30-Jul-2007
The defendants challenged deportation orders made for national security purposes, saying that the Special Immigration Appeals Commission should not have taken closed material into account. They argued that if returned to Algeria, they would suffer . .
CitedKhera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
CitedBarnardo v Ford HL 1892
A boy who had been ‘found destitute and homeless’ by a ‘clergyman residing in Folkestone’ had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to ‘an American gentleman’, who had taken him to Canada. . .
CitedRex v Earl of Crewe, Ex parte Sekgome CA 1910
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A protectorate is a foreign country whose governance is an . .
CitedRegina v Secretary of State for Home Affairs, Ex parte O’Brien CA 1923
Mr O’Brien had been arrested in London under regulation 14B of the Restoration of Order in Ireland Regulations 1920 and deported to Ireland there to be interned until further order. A writ of habeas corpus was sought as against the governor of . .
CitedRB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
CitedOmar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
CitedZabrovsky v The General Officer Commanding Palestine PC 4-Dec-1946
Mr Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, . .
CitedEx parte Mwenya CA 1959
A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as ‘proper and efficient’ to do so. However, it remains ‘the most efficient protection yet developed for the liberty of the . .
CitedAl-Haq, Regina (On the Application of) v Secretary Of State for Foreign and Commonwealth Affairs Admn 27-Jul-2009
The claimant sought a declaration that the UK was in breach of its international obligations. The claimant was a non-governmental human rights organisation based in Palestine. The respondent argued that the issue was beyond the court’s jurisdiction, . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai CA 1985
Sir John Donaldson MR said: ‘in the context of a situation with serious implications for the conduct of international relations, the courts should act with a high degree of circumspection in the interests of all concerned. It can rarely, if ever, be . .
CitedRegina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
CitedRegina v Secretary of State for Foreign Affairs ex parte Ferhut Butt Admn 1-Jul-1999
Lightman J said: ‘The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions . . This . .
CitedSankoh, Re CA 27-Sep-2000
The claimant appealed against a refusal to issue a writ oif habeas corpus on behalf of the Sierra Leonean revolutionary leader, Foday Sankoh, who had been detained in Sierra Leone while UK forces were supporting the national government there, and in . .
CitedRegina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
CitedAl Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 12-Oct-2006
The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in . .

Cited by:
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Torts – Other, International, Judicial Review

Leading Case

Updated: 11 November 2021; Ref: scu.465471