Supreme Court

Regina (Youssef) v Secretary of State for Foreign and Commonwealth Affairs

[2016] UKSC 3; [2016] WLR (D) 35

2015 Nov 18, 19

Lord Neuberger of Abbotsbury PSC, Lord Mance, Lord Wilson, Lord Sumption, Lord Carnwath JJSC

Crown — Minister, determination by — United Nations Security Council sanctions — Foreign Secretary lifting hold on claimant’s inclusion in United Nations Security Council’s list of persons associated with terrorist organisation — Claimant consequently included on list and on European Union’s sanctions list — Government subsequently concluding criteria for inclusion no longer met and seeking claimant’s removal from Security Council’s list — Government declining to support claimant’s request for removal from European Union’s sanctions list — Claim for judicial review of Foreign Secretary’s decision — Whether full merits review appropriate — Test to be applied by Foreign Secretary for inclusion on list — Whether Foreign Secretary required to maintain hold on listing where designating state relying on foreign conviction obtained through evidence acquired under torture

Facts

The claimant, an Egyptian national, arrived in the United Kingdom in 1994 and was refused asylum by reason of his alleged membership of a proscribed terrorist organisation. He was convicted of terrorism, in his absence, by an Egyptian military court, probably on the basis of evidence obtained by torture. In March 2005 an undisclosed designating state, subsequently identified as Egypt, requested the sanctions committee of the United Nations Security Council to add the claimant’s name to the consolidated list of persons to be treated as associated with an Islamic terrorist group. The United Kingdom placed a hold on the proposed designation in order to consider whether he met the criteria for designation. In September 2005 the Foreign Secretary concluded, on evidence not obtained through torture, that the claimant should be included in the consolidated list and he accordingly lifted the hold on listing. In consequence the claimant’s assets were frozen and he was also made subject to the European Union’s sanctions regime. In 2009 the Foreign Secretary concluded that the claimant no longer met the criteria for listing and sought his delisting, but without success. In 2010, when the claimant applied for the removal of his name from the European Union’s sanctions list, Foreign Secretary declined to support his application. In September 2010, in accordance with new requirements, the claimant learned for the first time, by way of a narrative summary issued by the United Nations, the sanctions committee’s reasons for his listing, in particular, that he was wanted by the Egyptian authorities for involvement in terrorist crimes. The claimant gave a bare denial of those allegations and sought judicial review of the Foreign Secretary’s lifting of the hold. The claimant also challenged the Foreign Secretary’s refusal to extend his grounds of support for delisting on the basis that evidence tainted by torture had been relied on by other committee members in making the designation. The Divisional Court of the Queen’s Bench Division dismissed the claim. The claimant appealed on the grounds that (i) the Foreign Secretary had been wrong in lifting the hold to apply a test of whether there were reasonable grounds to suspect that the claimant met the criteria for designation, when the proper test was whether he was satisfied that the criteria were in fact met; (ii) the correct standard of review of the Foreign Secretary’s decision was a review on the merits, rather than a conventional rationality test; and (iii) the claimant’s designation had been proposed for reasons which rested on evidence obtained by torture in Egypt and in those circumstances it was the Foreign Secretary’s duty to maintain the hold and so prevent the designation. The Court of Appeal dismissed the appeal. Subsequently the claimant requested the assistance of the ombudsperson appointed under United Nations’ authority to assist the sanctions committee with delisting applications. She reported to the sanctions committee that in view of the claimant’s public utterances and prominent position in extremist circles, she recommended that his listing be retained. The sanctions committee accepted her recommendation. In 2014 the Foreign Secretary informed the claimant that he too accepted the recommendation and would no longer support delisting.

Held

On the claimant’s appeal—

Held, appeal dismissed. (1) Although the conduct of foreign policy through the United Nations, and in particular the sanctions committee, was not amenable to review in the domestic courts in so far as it concerned relations between sovereign states, the object of the claimant’s challenge was the logically prior decision of the Foreign Secretary to remove the hold on the proposed designation. The court assumed, without deciding, that, since the present context concerned the rights of an individual living in the United Kingdom who at that time had no other means of challenge, judicial review of the decision to remove the hold was available in the domestic courts. The source of the Foreign Secretary’s powers under domestic law lay in the exercise of the prerogative to conduct foreign affairs so that, although the decision was not immune from judicial review, it was in an area in which the courts moved with caution. The decision was that of the Foreign Secretary, not of the committee, and was to be assessed by reference to his reasoning. While there was no doubt as to the importance of the rules against torture, and the use of evidence obtained by torture, so that states were obliged to take the necessary measures within their own domestic systems to give full effect to such rules, they were under no duty to inquire into the possible reliance on torture-tainted evidence by other states acting alone, or as parts of an international organisation such as the sanctions committee. Accordingly, the Foreign Secretary was under no obligation to inquire into the reasons of other members of the sanctions committee in releasing the hold and enabling designation (paras 24, 26—27, 29–30)

R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Everett [1989] QB 811, CA considered.

Prosecutor v Furundzija (1998) 38 ILM 317 distinguished.

(2) The Foreign Secretary’s decision to release the hold involved no breach of the principle that the state’s interference with an individual’s property rights in the exercise of its prerogative powers had to be supported by statutory authority. The requisite statutory authority for the claimant’s listing was provided by Council Regulation (EC) No 881/2002, as amended by Council Regulation (EU) No 1286/2009, given legislative effect by the European Communities Act 1972. That was unaffected by the causative role of the sanctions committee or by the Foreign Secretary as a member of that committee. Statutory authority was not required at that stage and the Foreign Secretary’s exercise of prerogative power involved no breach of any common law principle (para 34)

Entick v Carrington (1765) 19 State Tr 1029 distinguished.

(3) Designation had a preventative purpose and the standard of proof to be applied by the Foreign Secretary required an evaluation of risk which involved a question of degree and could not simply be assessed on a balance of probabilities. It was appropriate to apply the standard adopted by the international recommendations relating to money-laundering and terrorist financing and the similar test proposed by the ombudsperson, namely, whether there were reasonable grounds, or a reasonable basis, to suspect or believe that the relevant assets could be used to finance terrorist activity (paras 49, 50)

A v HM Treasury (JUSTICE intervening) [2010] 2 AC 534, SC(E) distinguished.

(4) The review would be conducted in accordance with common law principles which incorporated notions of proportionality where interference with fundamental rights was in issue. Such a test would be unlikely to lead to a different result from traditional grounds of review, particularly where national security was involved. A full merits review was inappropriate since the present case concerned the Foreign Secretary’s functions as a member of a United Nations committee. It was to the member states, as members of that committee that the Security Council had entrusted the task of determining whether the designation criteria were fulfilled and it would be inconsistent with that regime for a national court to substitute its own assessment (paras 56–58)

Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] 1 WLR 1591, SC(E) and Bank Mellat v HM Treasury (No 2) [2014] AC 700 (SC(E) considered.

Appellate history

Decision of the Court of Appeal [2013] EWCA Civ 1302; [2014] QB 728; [2014] 2 WLR 1082 affirmed.

Appearances

Timothy Otty QC and Dan Squires (instructed by Birnberg Peirce & Partners) for the claimant.

Jonathan Swift QC, Andrew O’Connor QC and Louise Jones (instructed by Treasury Solicitor) for the Secretary of State.

Reported by: Diana Procter, Barrister

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