Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah

Factual and Procedural Background

Military operations by forces of The Country D and The Country E began in The Country A on 20 March 2003 and major combat ended on 1 May 2003. In February 2004 British forces captured Respondent, a national of The Country C, outside their sector and, pursuant to a 23 March 2003 Memorandum of Understanding (“2003 MoU”), transferred him to The Country E forces. One month later those forces, without notice to the UK, removed him to a detention facility in The Country B. He has remained there ever since.

On 5 June 2010 a Detainee Review Board of The Country E recommended his transfer to The Country C for release, but the recommendation was not implemented. Relying on the 2003 MoU and the United Kingdom’s obligations under the Fourth Geneva Convention (GC4), Respondent sought a writ of habeas corpus against the Secretaries of State (Appellants) in England. The Divisional Court refused; the Court of Appeal issued the writ. The writ was served and The Country E formally declined to transfer the detainee. The Supreme Court heard the Appellants’ appeal against the grant of the writ and the Respondent’s cross-appeal contending that the return to the writ was insufficient.

Legal Issues Presented

1. Whether the United Kingdom retained sufficient factual control over Respondent’s detention to justify the issue of a writ of habeas corpus.
2. Whether the courts’ involvement would impermissibly intrude into the Executive’s conduct of foreign relations.
3. Whether, after The Country E’s refusal to transfer, the Appellants’ return to the writ was “full and sufficient.”

Arguments of the Parties

Appellants’ Arguments

• The United Kingdom lacked “custody or control” over the detainee; only The Country E could decide his fate.
• Issuing the writ would compel the Executive to engage in diplomatic activity, an area traditionally outside judicial supervision.
• The legality of detention by a foreign sovereign was non-justiciable in English courts.

Respondent’s Arguments

• Clause 4 of the 2003 MoU obliges The Country E to return any transferred detainee on the UK’s request, giving the UK de facto control.
• GC4 Article 45 requires the UK to seek his return once it is aware of Convention breaches; failure to do so is itself unlawful.
• The writ does not dictate foreign policy but merely tests whether control exists; any doubt should be resolved following the Barnardo/O’Brien line of authority by issuing the writ.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Control. The majority held that, although Appellants lacked physical custody, Clause 4 of the 2003 MoU created a realistic prospect of procuring Respondent’s return. Under Barnardo and O’Brien, such factual doubt warranted issuing the writ so that control could be tested.

2. Foreign-Affairs Objection. Requiring a return to the writ did not dictate diplomatic strategy; it merely required the Executive to reveal whether control existed. This did not infringe the separation between courts and external relations.

3. Geneva Convention Obligations. The Court accepted prima facie breaches of GC4 Articles 45, 49, 132 and 133: forcible transfer out of occupied territory and continued detention despite a recommendation for release. Those breaches triggered the UK’s duty to seek the detainee’s return, further underscoring an ability—and obligation—to act.

4. Sufficiency of the Return. After the writ issued, The Country E formally declined to transfer Respondent. A majority (Judge [Kerr], Judge [Phillips], Judge [Reed]) accepted the Appellants’ evidence that no further control could realistically be exercised and held the return sufficient. Two justices (Judge [Carnwath] and Judge [Hale]) dissented, stating that the Government’s request had failed to invoke Clause 4 expressly and that a clearer demand should be made.

Holding and Implications

Holding: The Supreme Court DISMISSED the Appellants’ appeal, affirming that the writ was properly issued, but by majority DISMISSED the Respondent’s cross-appeal, concluding that the Government’s return—documenting The Country E’s refusal—was sufficient.

Implications: The decision re-affirms that habeas corpus may issue where the respondent possesses only de facto, politically-based control over a detainee abroad and clarifies that political memoranda can evidence such control. However, once a good-faith request is unequivocally refused, the courts will not compel further diplomatic action. No new precedent was set on the underlying legality of foreign detention, but the judgment underscores the UK’s continuing duties under GC4 when it transfers detainees to allies.