Key Facts
- •Two British women (C3 and C4) traveled to Syria to join ISIL and are detained in Camp Roj.
- •The AANES (camp operator) is willing to release them if the UK government makes an official request.
- •The Foreign Secretary refused the request, citing national security concerns.
- •The Applicants initiated habeas corpus proceedings, arguing the Foreign Secretary has de facto control over their release.
- •The Home Secretary previously stripped the Applicants of their British citizenship, but this was overturned.
- •The Applicants' solicitors corresponded with the Government Legal Department (GLD).
- •The Foreign Secretary was willing to consider repatriating the children separately.
- •Camp Roj conditions are unsafe and unhealthy, especially for children.
Legal Principles
Habeas corpus lies against a person who has control over the applicant's custody, even without actual physical custody.
Barnardo v Ford [1892] AC 326; R v Secretary of State for Home Affairs, ex p O’Brien [1923] 2 KB 361, [1923] AC 603; Rahmatullah v Secretary of State for Defence [2012] UKSC 48, [2013] 1 AC 614
Habeas corpus is a flexible remedy adaptable to changing circumstances, but it only applies to current unlawful detention, not past illegality.
R v Secretary of State for the Home Department, Ex p Muboyayi [1992] QB 244; Ex p Mwenya [1960] 1 QB 241; Re Sankoh (unreported 1.9.00 (HC) and 27.9.00 (CA))
The UK government's obligation to assist British citizens detained abroad is subject to judicial review if irrational or contrary to legitimate expectation, but the court cannot interfere with foreign policy decisions.
R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 159
Outcomes
Appeal dismissed.
The court found the Foreign Secretary did not have the necessary control over the Applicants' detention to justify habeas corpus. The UK government's lack of involvement in the initial detention and the conditional nature of the AANES's offer were key factors.