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This case has already been expertly dissected for UKSC Blog by Samantha Knights of Matrix (here). We share her overall assessment that while the case is clearly important, none of the parties could be satisfied with the outcome.

Mr Rahmatullah remains detained in Afghanistan with no immediate prospect of release. Against this background, it may seem surprising that JUSTICE, as third party intervener in the case heralded this as an important judgment which “reaffirms the importance of the ancient common law writ of habeas corpus”. JUSTICE intervened as a third party in this case, in favour of an interpretation of the law which would allow our domestic courts – on a case-by-case basis – to explore the degree of control which the UK in fact exercises over persons detained overseas, subject to our international legal obligations and the diplomatic commitments made in assurances from other States and memoranda of understanding.

JUSTICE has intervened in most of the key cases in the UK and at the European Court of Human Rights on the relevance of memoranda of understanding and other diplomatic assurances for the purposes of establishing compliance with human rights standards, notably compliance with the right to be free from a real risk of torture or inhuman or degrading treatment on deportation, including Othman v UK. Lord Kerr, speaking at the JUSTICE/Sweet and Maxwell Annual Human Rights Law Conference, called JUSTICE’s contribution to this case “powerful and significant”.

In Rahmatullah, the Secretary of State sought to argue that the existence of detailed memoranda of understanding; and concrete obligations in international law under the Geneva Conventions were irrelevant to establishing whether the UK should be considered to have adequate control over a person for the writ of habeas corpus to issue. In evidence, a witness statement was produced to say that requesting return of Mr Rahmatullah, as it appeared we were entitled to do under the relevant memoranda and were required to do under our international obligations, would be “futile”.

JUSTICE’s submissions (available on the JUSTICE website) focused on four main arguments:

1. The scope of the writ of habeas corpus is an issue of international importance. The writ or its close equivalents can be found in legal systems around the world. Since there is no broad judicial consensus on the scope and nature of “control” in cases involving detention by a third party outside the jurisdiction, the Court of Appeal was right to issue the writ with a view to better determining the facts in this case;
2. A purposive approach to control must be taken. The degree of control necessary for a writ to issue must be approached as a question of fact, regardless of territorial or other restrictions. A formalistic approach should be rejected in favour of allowing control to be effectively tested through the return process. Only this approach could maintain the seriousness and effectiveness of the writ.
3. The Act of State doctrine has no relevance in connection with this case. In our view, a distinction should be drawn between judicial attempts to force the Government’s hand in diplomacy and cases such as this one, where the vindication of pre-existing rights in domestic law may have wider policy implications.
4. The Government’s arguments on the irrelevance of memoranda of understanding were consistent with the considerable weight placed on these instruments for other purposes, notably in the context of diplomatic assurances surrounding proposed deportations. The Court of Appeal’s decision to treat the relevance of the memoranda as a factual question, to be resolved by examining the evidence in the round was entirely consistent with the approach of the domestic and Strasbourg courts.

On this last point, we reiterated:

In the deportation cases, the court’s assessment of the risk of torture often includes a detailed assessment of the terms of a memoranda of understanding, and an express analysis of the weight to be afforded to any specific agreement, by reference to its terms and the circumstances of its motion. For example, in Othman v UK [2012] ECHR 56, the Governemnt submitted detailed factual statements on the relevance and reliability of the relevant MOU…to the effect that the relevant MOU would be respected, because otherwise damage would occur to the diplomatic relations between the UK and Jordan . . . That evidence is in striking contrast to the statements in the present case on the futility of making requests to the US. (at [41])

We argued that:

[t]he relevance of an MOU for the assessment of “control” for the purposes of habeas corpus jurisdiction must be assessed on a case, by case basis, just as routinely happens in deportation cases. An MOU may not of itself be justiciable, but it is factually relevant to the assessment of questions which are justiciable: such as, in the present case, whether for the purposes of habeas corpus jurisdiction the Government has sufficient control over Mr Rahmatullah (at [42]).

Giving the lead judgment in the case, Lord Kerr concluded that taken together, the UK’s obligations under the Geneva Conventions (Art 49 of the Fourth Geneva Convention) and the existence of the memoranda of understanding in this case gave rise to sufficient evidence for the writ to issue:

An applicant for a writ of habeas corpus must therefore demonstrate that the respondent is in actual physical control of the body of the person who is the subject of the writ or that there are reasonable grounds on which it may be concluded that the respondent will be able to assert that control. In this case, there was ample reason to believe that the UK Government’s request that Mr Rahmatullah would be granted. Not only had the 2003 MOU committed the US armed forces to do that, the government of the US must have been aware of the UK government’s view that Mr Rahmatullah was entitled to the protection of GC4 and that, on that account, it was bound to seek his return if (as it was bound to do) it considered that his continued detention was in violation of that Convention. [64]

On the issue of the MOU:

Memoranda of Understanding, or their equivalent, Diplomatic Notes are therefore a means by which courts have been invited to accept that the assurances which they contain will be honoured. And indeed courts have responded to that invitation by giving assurances the weight that one would expect to be accorded to solemn undertakings formally committed to by responsible governments. It is therefore somewhat surprising that in the present case [the UK government] asserted that it would have been futile to request the US government to return Mr Rahmatullah. As the Master of the Rolls pointed out…this bald assertion was unsupported by any factual analysis. [15]

Following this analysis, it is perhaps unsurprising that only two of the Justices (Baroness Hale and Lord Carnwath) found that the Court of Appeal’s discharge of the writ on return had not been justified, in light of the limited further information provided by the Secretary of State including correspondence with the US government which did not expressly refer to the obligations in the Geneva Convention or the MOU. JUSTICE did not intervene in the cross-appeal on the factual issues in the case.

The Court’s judgment does reassert the proactive role of the Court in connection with habeas corpus claims, even those outside the jurisdiction. If the Government’s case had been successful, the practical implication would have been that the Court would have retained little control, if any, in connection with fact-finding in connection with habeas corpus claims outside the ordinary frame. Instead, the Court has reiterated its place as the central arbiter of jurisdiction in habeas corpus, albeit concluding that the bounds of the writ are limited. We share Samantha Knights scepticism that litigation on this issue is likely to continue for years to come, across multiple common law jurisdictions. Indeed, should a future court require more of the UK government before discharging a writ, it is likely that each of the reservations expressed by Lord Phillips in his separate judgment will be expertly explored by government counsel on appeal.

In the meantime, the decision sends a helpful message on the government’s approach to memoranda of understanding and other diplomatic assurances. JUSTICE criticised the government’s case on MOU as the legal equivalent of “having your cake and eating it”. That this approach was adopted at all, provides some factual ammunition, albeit of a limited nature, to those seeking to challenge the significance of MOU in future cases. That it failed, should strengthen the arguments of those who argue for close scrutiny before MOU are accepted as an effective salve to any real risk of torture on deportation.

Angela Patrick is Director of Human Rights Policy at JUSTICE

JUSTICE was kindly represented pro-bono by Allen & Overy, Tom de la Mare QC and Fraser Campbell of Blackstone Chambers.