C3 v The Secretary of State for Foreign, Commonwealth & Development Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Holroyde LJ,Elisabeth Laing LJ |
| Judgment Date | 25 April 2023 |
| Neutral Citation | [2023] EWCA Civ 444 |
| Docket Number | Case No: CA-2022-002378 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 444
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Holroyde
(Vice-President of the Court of Appeal (Criminal Division))
and
Lady Justice Elisabeth Laing
Case No: CA-2022-002378
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Lewis & Mr Justice Jay
Royal Courts of Justice
Strand, London, WC2A 2LL
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 the Treasury Solicitor) for the Respondent
Hearing dates: 27 & 28 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This appeal concerns two British women (“the Applicants”), anonymised as C3 and C4, who travelled to Syria to join the Islamic State in Iraq and the Levant (“ISIL”, also known as “ISIS” or “Daesh”). Since the defeat of ISIL they have been detained in a camp in northern Syria called Camp Roj operated by the Autonomous Administration of North and East Syria (“the AANES”). Both have young children. Conditions in the camp are unsafe and unhealthy and are wholly inappropriate for the detention of adults, let alone children. It is their case that there is no legal basis for their detention.
The AANES has indicated that it would be prepared to release the Applicants and their children, so that they can be repatriated to the UK, if it receives an “official request” from the UK Government. The Secretary of State for Foreign, Commonwealth and Development Affairs (“the Foreign Secretary”) has refused to make such a request as regards the Applicants themselves, principally on the ground that they travelled to Syria voluntarily and would be a threat to national security if returned to this country, although he has expressed himself willing to consider doing so as regards the children if asked.
It is the Applicants' case that the AANES's offer means that the Foreign Secretary has de facto control over whether they are released, and that he can accordingly be compelled to repatriate them by the issue of a writ of habeas corpus. On 4 July 2022 they began habeas corpus proceedings in the Administrative Court in accordance with Part 87 of the Civil Procedure Rules. I will have to say more about habeas corpus later; but at this stage it is enough to say that it is a summary procedure by which a person who is detaining the applicant is required to produce them (formally, “have their body”) in the High Court in London and to provide a legal justification for their continued detention, failing which they will be released. Thus if it were issued in this case the effect would be to require the Secretary of State to make the requisite official request to the AANES and take whatever other steps were necessary to bring the Applicants back to this country and produce them to the Court.
By a judgment handed down on 2 November 2022 a Divisional Court comprising Lewis LJ and Jay J refused the applications: see [2022] EWHC 2772 (Admin). This is an appeal from that decision. The Applicants have been represented by Ms Phillippa Kaufmann KC, Mr Dan Squires KC and (in the case of C3) Ms Jessica Jones and (in the case of C4) Ms Isabel Buchanan. The Foreign Secretary has been represented by Sir James Eadie KC, Ms Lisa Giovannetti KC, Lord Verdirame KC, Mr Jason Pobjoy and Ms Emmeline Plews.
I should mention for completeness that at an earlier stage in the history the Home Secretary deprived the Applicants of their British citizenship under section 40 of the British Nationality Act 1981. However in March 2021 the Special Immigration Appeals Commission allowed an appeal against that decision on the ground that the effect of the deprivation was to render them stateless.
It is important to appreciate the limited nature of the issue on this appeal. The Foreign Secretary accepts that in principle his decision not to take steps to secure the Applicants' release from Camp Roj, and their repatriation to this country, can be challenged in the Courts. But he says that habeas corpus is not the correct vehicle for such a challenge and that what the Applicants should have done is to bring proceedings for judicial review of that decision. His case is not simply that habeas corpus is formally unavailable but also that if it were issued it would have the effect of bypassing any examination by the Courts, of the kind which would occur in judicial review proceedings, of the legitimacy of his reasons for not being prepared to accept the AANES's offer. The issue for us is thus a procedural one, albeit with substantive consequences: does habeas corpus lie in the circumstances of the present case?
THE BACKGROUND FACTS
The Applicants' evidence before the Divisional Court consisted of three witness statements from C3's solicitor, Anne McMurdie; one from C4's solicitor, William Kenyon; a witness statement from the Rt. Hon. Andrew Mitchell MP, the then co-Chair of the All-Party Parliamentary Action Group on Trafficked Britons in Syria (“the APPG”); and a witness statement from Maya Foa, joint Executive Director of the charity Reprieve. The Foreign Secretary relied on two witness statements from Jonathan Hargreaves, the (then) UK Government Special Representative for Syria. Before us the Applicants sought to put in evidence a further witness statement from Mr Kenyon.
In view of the limited nature of the issue before us, I need not give any details of how the Applicants came to travel to Syria, or their experiences prior to their detention by the AANES. It is enough to say that both are in their early thirties and that C3 travelled to Syria in 2014 and C4 in 2015. Each has children, some of them born in Syria and still very young.
There is clear evidence that the conditions in Camp Roj are dire. Details are given by Ms McMurdie in her second witness statement, drawing on a powerful report from Rights & Security International, Europe's Guantanamo: the indefinite detention of European women and children in North East Syria; but, again, I do not need to summarise that evidence here.
The AANES has had de facto control of parts of north-east Syria since 2012. It is controlled by the Syrian Democratic Council, whose military wing is known as the Syrian Democratic Forces. The AANES is not a state but it has its own constitution and provides quasi-governmental services to the population within the area that it controls. It has informal international relations with some states, including the UK. Its official position has for some time been that it does not wish to continue to detain foreign nationals and that it will co-operate with governments to facilitate the release and repatriation of their citizens held in Camp Roj (or its other principal detention facility at Al Hol). In accordance with that policy women and children from a number of countries including Belgium, Denmark, Finland, Germany, Italy, the Netherlands, Sweden and the United States have been returned home in the last few years. The main point made in Mr Kenyon's further witness statement is that since the hearing in the Divisional Court there have been further instances of such returns, including one to the UK arranged by the British Government (in fact this is said to have occurred prior to the hearing but too late for it to be put in evidence). I would be prepared to admit that evidence as useful background, but it does not materially add to the effect of the evidence adduced below.
On 25 October 2021 Mr Mitchell and the other co-Chair of the APPG, Lord Jay of Ewelme, wrote to the then co-Chair of the AANES's Department of Foreign Relations, Dr Abdulkarim Omar, and other AANES officials, as follows:
“.. [W]e would like to confirm your position on releasing British families from Camp Roj for repatriation to the UK. In particular, we wish to confirm that the AANES would release British families from Camp Roj if the UK Government were to authorize the release of these families and issue the requisite travel documents to enable repatriation.
We understand, of course, that the finer details of the repatriation of individual families would be a matter for further discussion, but we would be grateful if you can confirm that in principle you would release British families currently held in Camp Roj for repatriation to the UK if the UK were to authorize the release and issue the requisite travel documents.”
The reference to “travel documents” reflects the fact that detainees would typically not have current British passports (and any children born in Syria certainly would not). As I understand it, both Applicants are in that situation and would require fresh passports, or emergency travel documents, in order to return to the UK.
In his reply dated 30 October 2021 Dr Omar said:
“[W]e are ready to provide unconditional assistance and cooperate with the UK to hand over its citizens, if we receive an official request on this matter.”
On 14 February 2022 Mr Mitchell and Lord Jay wrote to the then Foreign Secretary, the Rt. Hon. Liz Truss MP, referring to the AANES's position and 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.
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