## Facts

- Carl Walter Kuechenmeister was a German national who moved to England in 1928.
- Between 1931 and May 1939, he was granted permanent English residence, married an Englishwoman, had children with her, and applied for British nationality.
- In August 1939, shortly after his nationality application, the Home Secretary asked him to leave the United Kingdom.
- In the following years, during World War II, Kuechenmeister was interned as a German national, including periods of internment in England and Australia, and was later again held in the United Kingdom.
- After several years in internment, he applied to the Divisional Court for a writ of habeas corpus directed to Lt.-Col. Edward Richard Bottrill, the commandant responsible for his custody.
- At the habeas corpus hearing, the Crown relied on a certificate dated 2 April 1946 from the Secretary of State for Foreign Affairs.
- The certificate stated, in substance, that (i) the German state and German nationality continued to exist notwithstanding Germany’s unconditional surrender and Allied assumption of governmental authority through the Allied Control Commission, and (ii) His Majesty’s Government in the United Kingdom remained in a state of war with Germany because no peace treaty or declaration of peace had ended the state of war.
- The Divisional Court accepted the certificate as sufficient to establish the continued state of war and concluded that Kuechenmeister remained an alien enemy; it refused habeas corpus.
- Kuechenmeister appealed to the Court of Appeal.

## Issues

1. Whether the courts must treat the Foreign Secretary’s certificate as conclusive on the existence of a state of war between the United Kingdom and Germany after Germany’s unconditional surrender and Allied occupation.
2. Whether, given Allied control of Germany, Germany and German nationality continued to exist so that a German national remained an “alien enemy” in English law.
3. Whether an alien enemy interned under the Crown’s wartime powers could obtain release by habeas corpus, or whether the detention was non-justiciable as an exercise of prerogative/act of state in time of war.

## Decision

- The Court of Appeal dismissed the appeal and affirmed the refusal of the writ.
- The court treated the Foreign Secretary’s certificate as conclusive for domestic courts on whether a state of war existed and whether it had terminated.
- On the certificate, the court accepted that Germany continued to exist as a state and that German nationality continued, despite the Allied assumption of governmental authority in Germany.
- Because the United Kingdom was still at war with Germany and Kuechenmeister was a German national, he remained an alien enemy.
- The court held that the Crown, through the executive, could intern or otherwise control alien enemies during a state of war under prerogative power, and the King’s courts would not control that power by habeas corpus at the suit of an alien enemy.

## Legal Principles

- A ministerial certificate by the responsible Secretary of State on matters of war and peace (including whether a state of war exists or has ended) is conclusive in English courts.
- The legal status of a foreign state and the continuation of its nationality, for domestic purposes, may be accepted on the executive’s formal statement in areas closely connected with foreign affairs and war.
- Unconditional surrender and military occupation, even with Allied assumption of governmental authority, do not necessarily extinguish a state or its nationality for English law where the executive confirms their continued existence.
- During a continuing state of war, the Crown may, under prerogative power, intern, expel, or control alien enemies; courts will not order release by habeas corpus where detention is maintained on that basis.

## Conclusion

Rex v. Bottrill, ex parte Kuechenmeister (Court of Appeal 1946) held that the Foreign Secretary’s certificate conclusively established that the United Kingdom remained at war with Germany after surrender and occupation and that Germany and German nationality continued; accordingly, Kuechenmeister remained an alien enemy whose continued internment under the Crown’s wartime prerogative could not be overturned through habeas corpus.


Rex v. Bottrill, ex parte Kuechenmeister, Court of Appeal 1946