C3 and C4 v Secretary of State for Foreign, Commonwealth & Development Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay,Lewis LJ |
| Judgment Date | 02 November 2022 |
| Neutral Citation | [2022] EWHC 2772 (Admin) |
| Docket Number | Case No: CO/2357/2022 and CO/2360/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2772 (Admin)
Lord Justice Lewis
Mr Justice Jay
Case No: CO/2357/2022 and CO/2360/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires KC and Professor Zachary Douglas KC, with Ayesha Christie and Jessica Jones (instructed by Birnberg Peirce) for C3 and with Julianne Kerr Morrison and Isabel Buchanan (instructed by ITN Solicitors) for C4
Sir James Eadie KC, Lisa Giovannetti KC, Guglielmo Verdirame KC, Jason Pobjoy and Emmeline Plews (instructed by Government Legal Department) for the Respondent
Hearing dates: 18 th and 19 th October 2022
Approved Judgment
This Judgment was handed down by the Court remotely by circulation to the parties and their representatives by email and by release to The National Archives. The date and time for hand-down is deemed to be 11am on 2 nd November 2022.
Introduction
Anonymity orders have been made in these proceedings pursuant to CPR Rule 39.2. C3 and C4 also have the benefit of similar orders made in appellate proceedings before the Special Immigration Appeals Commission (“SIAC”). It follows that nothing may be disclosed or published which could lead to their identification.
These are applications for Habeas Corpus governed by CPR Part 87.
C3 and C4 are both held in Camp Roj in North East Syria, which is operated by the Autonomous Administration of North and East Syria (“AANES”). They were both born in the United Kingdom and according to the Secretary of State for the Home Department (“the SSHD”) travelled to Syria some years ago now to align with the Islamic State in Iraq and the Levant (“ISIL”, but also known as “ISIS” or “Daesh”). After ISIL's military defeats in 2016 and 2017, C3 and C4 were brought to Camp Roj (on dates more fully specified below) where they, together with a number of their respective children, remain. Conditions in the camp are dire. In 2019 the SSHD deprived C3 and C4 of their British citizenship under s. 40 of the British Nationality Act 1981, but in March 2021 SIAC held that she did not have power to do so because the decision, if maintained, would render them stateless. Consequently, C3's and C4's citizenship has now been restored.
C3 and C4 submit that the AANES has made it clear that these families will be released if an “official request” were made by the United Kingdom. What exactly is meant by that, and how release might be effectuated in these circumstances, is disputed. At all events, the Secretary of State for Foreign, Commonwealth and Development Affairs (“SSFCDA”) has refused to make such a request, principally on the grounds that C3 and C4 travelled voluntarily to Syria and remain a threat to national security.
In a nutshell, C3 and C4 now contend that a writ of Habeas Corpus should issue pursuant to CPR Rule 87.5(a), either with an order that they be released forthwith (see Rule 87.5(g)) or with directions as to the Court or judge before whom, and the date on which, the writ is returnable (see Rule 87.8(2)).
The Evidence before the Court
C3 and C4 rely on the witness statements of the Rt Hon Andrew Mitchell MP (Co-Chair of the All-Party Parliamentary Action Group on Trafficked Britons in Syria (“APPG”)), Anne McMurdie (C3's solicitor who has filed three statements), William Kenyon (C4's solicitor) and Maya Foa (joint Executive Director of Reprieve). There is also a report by an expert in Syrian law, Dr Hussein Bakri.
The SSFCDA relies on the two statements of Jonathan Hargreaves who is the UK Government's Special Representative for Syria.
Permission is required for reliance by the respective party on the second witness statement of Jonathan Hargreaves and the expert report of Dr Hussein Bakri. These applications have not been opposed and permission is granted.
A Factual Outline and Summary of Disputed Evidence
C3 was born in this country in 1990 and is a British citizen by birth. In July 2014 she travelled to Syria with her children. Since then, further children have been born in that country. The SSHD's deprivation decision made on 8 th November 2019 stated that C3 was a threat to national security on account of her voluntarily aligning with ISIL. The merits of that contention have not been tested before SIAC because on 1 st April 2021 the SSHD reinstated her citizenship following the decision on the preliminary issue of statelessness. For completeness, both C3 and C4 deny that they represent a threat to the national security of the UK.
It is not clear exactly when C3 was first held in Camp Roj but it is understood that this probably was in October 2017. It is said on behalf of C3 that the Camp Roj authorities have informed the SSFCDA that “she is not an extremist and does not agree with the ideology of Islamic State (Daesh)”, but in the absence of CLOSED material it is neither possible nor necessary to reach any conclusion about this.
C4 was born in the UK in 1992 and is also a British citizen by birth. In 2015 she left the UK to travel to Syria with her child. It is contended on her behalf that this was at the behest of her then husband whom she later divorced. Later, she had further children. In early 2019 C4 was held at Al-Hoj and at some point in 2021 she was transferred to Camp Roj where she has been held ever since. C4 was deprived of her British citizenship on the same day as C3, and thereafter the proceedings before SIAC took an identical course.
It is not in dispute that the occupants of Camp Roj are not permitted to leave. The camp is secured and has a perimeter fence to prevent camp residents from leaving without authorisation. The camp is patrolled by the armed guards of the Syrian Democratic Forces (“SDF”). SIAC has held in an appeal raising similar issues that conditions in the camp are so poor that a violation of article 3 of the ECHR would be made out, assuming that it applies.
It is convenient at this stage to summarise the SSFCDA's evidence relating to background circumstances in Syria and the creation of detention camps. This may be drawn from the first witness statement of Mr Hargreaves.
The British Embassy in Damascus closed in March 2012. In June 2014 ISIL proclaimed a caliphate across areas spanning Iraq and Syria. Since 2013 over 900 UK-linked individuals of national security concern have travelled to the region. Of these, approximately 25% have been killed in the conflict and just under half have returned to this country. A significant number remain alive in the conflict zone.
In Syria the military fight against ISIL has primarily been undertaken by the Coalition-backed SDF, an alliance of Arab and Kurdish armed groups. It is the armed counterpart of the Syrian Democratic Council, the governing element of the AANES.
Since 2012 the AANES has acquired de facto autonomy in administering North-eastern territories in Syria. It is not a State but has its own constitution, provides quasi-governmental services to the local population, and engages in international relations with, amongst other countries, the UK.
The military defeats of ISIL have led to the capture of tens of thousands of individuals, including women and children. The largest proportion of women and children are located in Al-Hol (55,000 residents) and Camp Roj IDP camp (approximately 2,400 residents).
The SSFCDA's view, shared it is understood by the SDF, is that there is a continuing non-international armed conflict (“NIAC”) in North-East Syria between the SDF and ISIL, with the latter surviving through a network of sleeper cells, carrying out attacks from time to time and whenever it can. Mr Hargreaves cautions that this is a “partial picture only” based on information in the public domain. The absence of a CLOSED material procedure, at least at this stage, precludes further elaboration.
On 25 th October 2021 the Co-Chairs of the APPG wrote to the AANES seeking confirmation that they would, at least in principle, release detained British women and children if requested by the UK Government. It is pointed out on behalf of these detainees that many countries, including Germany, Belgium, Denmark, Sweden and the United States have made such requests, and their nationals or citizens have been released. On 30 th October 2021 Dr Abdulkarim Omar, the then Co-Chair of the Department of Foreign Relations of the AANES, confirmed in reply that:
“… each country must bear its own responsibility, and repatriate its citizens …
…
… we are ready to provide unconditional assistance and co-operation with the UK to hand over its citizens, if we receive an official request on this matter.”
On 14 th February 2022 the APPG Co-Chairs wrote to the SSFCDA asking her to:
“… take immediate steps to:
1. Make an official request to the AANES for the release of the British families from detention;
2. Issue the British families with the requisite travel documents to allow them to re-enter the UK.
Once this is done, we are sure that the practicalities of repatriation can be arranged.”
On 24 th March 2022 the Minister of State with responsibility for Asia and the Middle East replied on behalf of the SSFCDA. She pointed out that women who travelled to the region could pose “as significant a risk to our national security as returning male fighters” and that it was difficult to provide direct help to British nationals in these camps. Further:
“We are committed to considering every request for consular assistance on a case-by-case basis, taking into account all relevant circumstances.”
On 28 th March 2022 solicitors for C3 and C4 wrote separately to the Minister of State clarifying that what was being sought was “not in reality” consular assistance but “simply asking that an...
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C3 v The Secretary of State for Foreign, Commonwealth & Development Affairs
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