The applicants were two British women who travelled to Syria to join the Islamic State in Iraq and the Levant (“ISIL”). Since the defeat of ISIL they had been detained in a camp in northern Syria called Camp Roj operated by the Autonomous Administration of North and East Syria (“the AANES”). Both had young children. The AANES had indicated that it would be prepared to release them and their children, so that they could be repatriated to the UK, if it received an “official request” from the UK Government. The Secretary of State for Foreign, Commonwealth and Development Affairs had refused to make such a request with regard to the applicants themselves, principally on the ground that they travelled to Syria voluntarily and would be a threat to national security if returned to the UK, although he had expressed himself willing to consider doing so with regard to the children if asked. The applicants began habeas corpus proceedings in the Administrative Court in accordance with CPR r 87 contending that the AANES’s offer meant that the Foreign Secretary had de facto control over whether they were released, and that he could accordingly be compelled to repatriate them by the issue of a writ of habeas corpus. The Divisional Court dismissed their application. The applicants appealed. The Foreign Secretary accepted that the decision not to take steps to secure their release and repatriation could be challenged in the courts, but maintained that the correct procedure was by way of judicial review.
On the applicants’ appeal—
Held, Appeal dismissed. The habeas corpus authorities with their discussion on “control” could not fairly be read as authority for a general proposition that in any case where A was being prima facie unlawfully detained by B habeas corpus would lie against C if there was reason to believe that C was for any reason able to procure A’s release. It was, therefore, necessary to consider whether as a matter of principle the effect of the AANES’s offer was to give the UK Government control over the applicants’ detention in the sense necessary for habeas corpus to lie. The court did not believe that it was. First, it was of fundamental importance that the UK Government not only did not have actual custody of the applicants but had no involvement in their original detention. The absence of any case in the jurisdiction in which the writ had issued in circumstances of that kind reflected a general understanding that it lay only against those responsible for the original detention. That understanding accorded with the nature of habeas corpus as a remedy for unlawful detention. Second, acceptance by the Foreign Secretary of the AANES’s offer would not by itself be effective to procure the applicants’ release or their transfer to his custody. In the first place, the offer was not simply to release them: they would be released only on the basis that the UK undertook to repatriate them. Further, that condition could only be satisfied by the Foreign Secretary taking steps—requiring, among other things, the transporting of the applicants from Syria into Iraq or Turkey, with the permission of the government in question, in order to get them to an airport from which they could be flown to the UK. The court would thus accept the Foreign Secretary’s submission that such control over the applicants’ detention as the AANES’s offer gave him was qualified and conditional. The court did not believe that a power to procure the release of a detainee which was qualified in that way was sufficient to justify the issue of a writ of habeas corpus ( paras 20, 45–47, 48–57, 61, 62, 63).
Phillippa Kaufmann KC, Dan Squires KC and Jessica Jones (instructed by Birnberg Peirce) for C3.
Phillippa Kaufmann KC, Dan Squires KC and Isabel Buchanan (instructed by ITN Solicitors) for C4.
Sir James Eadie KC, Lisa Giovannetti KC, Lord Verdirame KC, Jason Pobjoy and Emmeline Plews (instructed by Treasury Solicitor) for the Secretary of State.