Secretary of State for Foreign & Commonwealth Affairs v. Rahmatullah

In October, 2012 the Supreme Court of the United Kingdom considered whether a detainee captured by British troops and handed over to the military forces of the United States in Iraq may be returned by habeas writ to the U.K.[1] The detainee could not be produced by writ of habeas corpus, the court concluded, as the U.K. no longer exercised sufficient control over the prisoner.[2]

In 2004, British forces detained Yunus Rahmatullah, a Pakistani citizen, in a region of Iraq controlled by U.S. forces.[3] Shortly after his capture, Mr. Rahmatullah was handed over to U.S. authorities who in June of the same year transferred him to the detention facility at Bagram, Afghanistan.[4] At the time of Mr. Rahmatullah’s transfer, a Memorandum of Understanding (“MoU”), signed in 2003 by U.K., U.S. and Australian forces, provided that detainees transferred from one power to another would be returned upon request .[5]

On the basis of the MoU, Rahmatullah’s attorneys argued that the U.K. had sufficient control over the detainee to request his return or demand that the U.S. justify his continued detention.[6] While the Queen’s Bench Divisional Court, the first court to hear this case, found that the U.K. exercised no control over the detainee, the Court of Appeal disagreed and held that there was a question as to whether the U.K. still had control over the detainee.[7] The Court of Appeal stated that the British administration had an obligation to test whether it possessed sufficient control over Mr. Rahmatullah by requesting his return.[8] Therefore, the court approved of habeas corpus “as a vehicle of inquiry” and granted the writ.[9] Reprieve, the legal charity representing Mr. Rahmatullah, described the ruling as “historic” and “unique,” as “it was the first time any civilian legal system had penetrated Bagram.”[10] However, the elation of the attorneys for Mr. Rahmatullah was premature.

After the decision of the Court of Appeal, the British government formally requested the return of Mr. Rahmatullah. The U.S. Department of Defense responded that it would return the prisoner to Pakistan, his country of citizenship, and not the U.K., once it received “appropriate security assurances.”[11] The second judgment of the Court of Appeal, following the British request and the U.S. response, held that the “melancholy truth” was that once U.K. forces handed the detainee to U.S. authorities, they lost “their ability to protect him in the future.”[12]

The Supreme Court agreed. At the heart of the case was the issue of control over the detainee, said the Court, and the U.K. government had tested its ability to regain control of Mr. Rahmatullah when it wrote to the U.S. authorities demanding his return.[13] “The purpose of issuing the writ was to obtain clarification of the extent, if any, of the United Kingdom’s ability to exercise control over the detention of Mr. Rahmatullah.”[14] The rejection of the request demonstrated that the U.K. lacked control over Mr. Rahmatullah.[15]

Thus, Mr. Rahmatullah’s indefinite detention remains as undisturbed by judicial intervention as Bagram remains impenetrable.


[1] Sec’y of State for Foreign & Commonwealth Affairs v. Rahmatullah, [2012] UKSC 48, [2012] 3 W.L.R. 1087 [6]-[15] (appeal taken from Eng.), available at http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0033_Judgment.pdf.

[2] Id. at [64].

[3] Joshua Rozenberg, Yunus Rahmatullah’s Unlawful Detention? U.K. Should Have Tried Harder, Guardian (Oct. 31, 2012), http://www.guardian.co.uk/law/2012/oct/31/yunus-rahmatullah-uk-supreme-court.

[4] Id.

[5] Rosalind English, Supreme Court Upholds U.S. Detention of Yunus Rahmatullah, UK Human Rights Blog (Oct. 31, 2012), http://ukhumanrightsblog.com/2012/10/31/supreme-court-upholds-us-detention-of-yunus-rahmatullah/.

[6] Rosalind English, Release of Pakistani Detainee Ordered by Court of Appeal, UK Human Rights Blog (Dec. 20, 2011), http://ukhumanrightsblog.com/2011/12/20/release-of-pakistani-detainee-ordered-by-court-of-appeal/.

[7] Rahmatullah v. Sec’y of State for Foreign & Commonwealth Affairs, [2011] EWCA Civ 1540, [2012] 1 W.L.R. 1462 [47]-[54] (appeal taken from Eng.), available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/yunus-rahmatullah-judgment.pdf.

[8] Id.

[9] Id. at [54].

[10] Richard Norton-Taylor, Bagram Jail Detainee Unlawfully Held, Court Rules, Guardian (Dec. 14, 2011), http://www.guardian.co.uk/world/2011/dec/14/bagram-jail-detainee-yunus-rahmatullah.

[11] Rozenberg, supra note 3.

[12] Rahmatullah v. Sec’y of State for Foreign & Commonwealth Affairs, [2012] EWCA Civ 182, [2012] 1 W.L.R. 1462 [16] (appeal taken from Eng.), available at http://www.bailii.org/ew/cases/EWCA/Civ/2012/182.html.

[13] Sec’y of State for Foreign & Commonwealth Affairs v. Rahmatullah, [2012] UKSC 48, [2012] 3 W.L.R. 1087 [114] (appeal taken from Eng.), available at http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0033_Judgment.pdf.

[14] Id.

[15] Id.