The appeal of C3 and C4, two British women who travelled to Syria to join the Islamic State in Iraq and the Levant who were subsequently detained in a camp in northern Syria, has been dismissed. The case is C3 & Anor v Secretary of State for Foreign, Commonwealth & Development Affairs [2023] EWCA Civ 444.

Background

Since the collapse of ISIL in 2016-17, C3 and C4 have been detained Camp Roj in northern Syria. Conditions in the camp are dire. You can read more about the background to the case, the conditions in the camp, and why the Divisional Court originally refused the applications for habeas corpus here.

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.

C3 and C4 brought their applications for a writ of habeas corpus on the basis that the Secretary of State could secure their release from detention, including making requests to those in charge of administration in the camp (AANES), and organising emergency travel and documentation.

The Secretary of State argued that this would mean expanding the scope of the writ of habeas corpus beyond the circumstances in which it has been held to be available in previous case law because it involved the Secretary of State making a number of discretionary decisions (including securing consular assistance, travel documentation and travel arrangements). The AANES authorities were prepared to release C3 and C4 but because they required these arrangements for the release to go ahead, it is them, not the Secretary of State, “who are determining whether, and in what circumstances [they] can be released and who, thereby, control their custody”. The Secretary of State may be able to assist in the release, but their ability to do so does not mean that they have custody of, or control of C3 and C4. The Divisional Court concluded that in these circumstances, the writ of habeas corpus is not available.

The appeal

This appeal was limited to the question of whether habeas corpus lies in the circumstances of the present case. Ultimately, habeas corpus is not the correct vehicle for this challenge. If habeas corpus was issued it would have the effect of bypassing any examination by the courts, of the kind that would occur in judicial review proceedings, of the legitimacy of the Secretary of State’s reasons for not being prepared to accept the AANES’s offer.

C3 and C4 argue that the Secretary of State has the de facto power, by making the appropriate “official request” to release them from detention. In these circumstances, he is regarded as having control over their detention such that habeas corpus is an available remedy. But the official request is not the only step that needs to be taken.

It is important to note that the government not only does not have actual custody of C3 and C4, but it was also not involved in their original detention and “a writ of habeas corpus to issue in those circumstances would be unprecedented”. Previous case law concerning control of individuals in detention where habeas corpus is considered concerns instances where the government has been responsible for the original detention of an individual but had transferred him to the custody of a foreign government:

“Where B has first detained A but has passed actual custody to C, it is fair to regard B as responsible for A’s continuing unlawful detention if in practice they have the power to procure his or her release by C: it was B who created the “detention situation” (if I may be forgiven the phrase) in the first place. By the case is different where B had nothing to do with the original detention. It is hard to see why in that case the fact that they may have, for an unconnected reason, de facto power to procure A’s release justifies subjecting htem to a peremptory remedy for a situation which they have done nothing to create…. B may of course in particular circumstances, as discussed in Abbasi, be under a public law duty to take steps to try to procure A’s release, but that is not the same thing as treating them as a constrictive custodian for the purpose of habeas corpus.”

In addition, acceptance of the AANES’s offer would not by itself be effective to procure C3 and C4’s release or the transfer of their custody to the UK government. They would only be released on the basis that the UK undertook to repatriate them, and only if the conditions of travel and documentation arrangements could be satisfied. The AANES’s offer was qualified and conditional and therefore not sufficient to justify the issue of a writ of habeas corpus.

Comment

C3 and C4’s case was summarised in four points:

1. The Secretary of State was in reality the only person who could bring about their release, including arranging their children’s repatriation
2. The shocking conditions of their detention
3. The real reasons for the Secretary of State’s unwillingness to make the request for release was his concerns about national security
4. The Secretary of State’s conduct deprived them of their fundamental rights as citizens to enter the UK.

If C3 and C4 were able to present themselves at a consulate in Iraq or Turkey, for example, the government would not be able to refuse to issue them and their children documentation. But suggesting that the government have a “responsibility” to procure their release from their current position, given the AANES’s offer, might not be an apt label. The combination of factors listed above are instead “based on the requirements of justice and humanity”.

C3 and C4’s case is dire. There may be a powerful case that neither the difficulties in release nor the national security concerns can justify a refusal to take steps to secure their release and repatriation. But the case before this appeal court was limited in scope and the court concluded that there was no justification for a remedy of habeas corpus in circumstances where the Secretary of State does not have the necessary control over C3 and C4’s detention. Judicial review would be a more appropriate vehicle for such a case because the court could consider the lawfulness of the refusal of assistance in accordance with the principles in the case of Abassi. In the meantime, the UK remains an outlier amongst Western nations in refusing to repatriate British citizens in the camps of north-east Syria.