The Divisional Court has refused applications for habeas corpus made on behalf of two British women and their children detained in a camp in northeast Syria. The case is C3 and C4 v Secretary of State for Foreign, Commonwealth & Development Affairs [2022] EWHC 2772 (Admin).

A writ is essentially an order or a summons. The writ of habeas corpus directs the person or body (the custodian) detaining an individual to bring them to court. It is available in circumstances where an individual is unlawfully detained or where the person to whom the writ is addressed can secure the individual’s release. The procedure governing applications is contained in Part 87 of the Civil Procedure Rules.

C3 and C4 were born in the UK and are British citizens. They travelled to Syria some years ago to territory controlled by the Islamic State in Iraq and the Levant (ISIL). After the military defeats of ISIL in 2016-2017, they were brought to the camps in North East Syria together with their children who are also British citizens. They are currently in Camp Roj where conditions are dire. Jay J refers to a Special Immigration Appeals Commission (SIAC) judgment holding that “conditions in the camp are so poor that a violation of article 3 of the ECHR would be made out”. However, the European Court of Human Rights has recently held that citizens of ECHR states in the camps are outside the jurisdiction of the Convention. This means that it will be unlikely that the ECHR can be relied on by British citizens in the camps. C3 and C4 were previously deprived of their British citizenship. This was overturned by the Special Immigration Appeals Commission because the decisions would have rendered them stateless.

Camp Roj is administrated by the Autonomous Administration of North and East Syria (AANES). The All-Party Parliamentary Action Group on Trafficked Britons in Syria (APPG) wrote to AANES about British women and children detained there. In response, AANES authorities stated that “each country must bear its own responsibility, and repatriate its citizens” held in the camps. They stated they were “ready to provide unconditional assistance and co-operation with the UK to hand over its citizens” if they received “an official request”.

C3 and C4 brought their applications for habeas corpus on the basis that the Secretary of State could secure their release from detention in the camp. They could make an official request for their repatriation to the AANES authorities and then cooperate with them to make the practical arrangements for their repatriation, including providing emergency travel documents and organising travel.

However, the Secretary of State argued that this would mean expanding the scope of the writ of habeas corpus beyond the circumstances in which it had been held to be available in previous case law. The steps required to secure C3 and C4’s release involved a number of discretionary decisions by the Secretary of State: the decision to provide consular assistance to C3 and C4; arranging for their identities to be checked and emergency travel documents issued; and making travel arrangements. The UK government had no embassy in Syria. C3 and C4 were assessed to pose a threat to the UK’s national security and the government had a policy not to provide consular assistance to British citizens in these circumstances. There would also be security risks associated with making travel arrangements due to the ongoing conflict in North East Syria.

The court agreed that securing C3 and C4’s release, in reality, required the Secretary of State to take a number of discretionary decisions. Lewis LJ summarised the court’s decision as follows:

“108. The AANES authorities have indicated that they are prepared to release the applicants in circumstances which require action on the part of the Secretary of State (by requiring the United Kingdom to make an official request for release and by making arrangements for the repatriation of the applicants to the United Kingdom). That does not alter the fact that it is the AANES authorities, not the Secretary of State, who are determining whether, and in what circumstances, C3 and C4 can be released and who, thereby, control their custody. The Secretary of State may be able to facilitate or help bring about the applicants’ release if he were able or willing to do the things required by the AANES authorities before they will release the applicants from the camp… the ability of the Secretary of State to respond to the conditions fixed by the AANES authorities for release of the applicants does not, however, mean that he has custody, or the control of the custody, of the applicants. In those circumstances, the writ of Habeas Corpus is not available against the Secretary of State in the present case.”

The court held that the lawfulness of any action or failure to act by the Secretary of State in relation to the necessary steps to secure C3 and C4’s return could, in principle, be challenged in judicial review proceedings. However, the scope for such a challenge would be subject to established principles. The scope of judicial review is limited where decisions relate to the provision of consular assistance to British citizens abroad and involve the conduct of foreign relations.

Jay J said the judgment “should not be interpreted as overlooking the human tragedy of this case”, making clear that C4 and C3’s children were “entirely blameless”. The Secretary of State had said in correspondence that he was sympathetic to the situation of the children and that requests for repatriation of C3 and C4’s children without C3 and C4 would be urgently considered. Reprieve had offered to assist with practical travel arrangements, but the court agreed with the Secretary of State’s evidence that AANES authorities would require the UK to make these arrangements.

The UK is an outlier amongst western nations in refusing to repatriate British citizens in the camps in North East Syria. Many of the women in these camps were exploited and ill-treated on their journey to Syria and after their arrival, some when they were minors. The policy of separating families by offering to repatriate children and not their mothers will only cause further harm. It is to be hoped that the UK government abandons its shameful stance and repatriates people like C3 and C4 together with their children. The first case of a woman and her child being repatriated was recently reported, which may indicate a softening in the UK’s position.