Ahmad Sarkandi and Others v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Sullivan,Lord Justice McFarlane |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] EWCA Civ 687 |
| Docket Number | Case No: T3/2014/2545 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2015 |
[2015] EWCA Civ 687
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Bean
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Sullivan
and
Lord Justice McFarlane
Case No: T3/2014/2545
The Queen on the application of
Dinah Rose QC and Maya Lester (instructed by M Taher & Co) for the Appellants
Jonathan Swift QC, Robert PalmerandCaroline Stone (instructed by Government Legal Department) for the Respondent
Angus McCullough QC and Ben Watson (instructed by the Special Advocates' Support Office) appeared as Special Advocates
Hearing dates: 9–10 June 2015
This is an appeal against a declaration under section 6 of the Justice and Security Act 2013 ("the 2013 Act") that the relevant proceedings are proceedings in which a closed material application may be made to the court. The proceedings in question are a claim for judicial review of a decision by the Secretary of State to make a proposal to the EU Council that it add the claimants to a list of persons against whom restrictive measures were to be taken pursuant to EU legislation directed towards the prevention of nuclear proliferation activities by Iran. The declaration under section 6 was made by Bean J on the application of the Secretary of State. The basis of the claimants' appeal, brought with permission granted by the judge below, is that the statutory conditions for the making of such a declaration were not met.
This is one of two cases in which this court has been called upon to consider, at a relatively early stage in the life of the 2013 Act, the correct approach towards an application under section 6. The other is Case No. T3/2014/2772, McGartland and Another v Secretary of State for the Home Department. Whilst at a general level the cases have points in common, the specific issues in them are very different. The cases have been heard by different constitutions of the court, albeit with myself as a member of both constitutions, and are the subject of separate judgments. In order to enable each judgment to stand alone, there is an element of repetition between them, in preference to substantial cross-referencing.
The EU legislative background
Council Decision 2010/413 /CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/14/CFSP ("the 2010 Decision") required Member States to impose restrictive measures, including travel restrictions and asset freezing, on persons and entities listed in Annex I or Annex II to the Decision. Those listed in Annex I included entities owned or controlled by, or acting on behalf of, the Islamic Republic of Iran Shipping Lines ("IRISL"). The nature of the list in Annex II is indicated by Article 20(1)(b), to the effect that those whose assets were to be frozen included:
"persons and entities not covered by Annex I that are engaged in, directly associated with, or providing support for, Iran's proliferation-sensitive nuclear activities or for the development of nuclear weapon delivery systems, including through the involvement in procurement of the prohibited items, goods, equipment, materials and technology, or persons or entities owned or controlled by them, including through illicit means, or persons and entities that have assisted designated persons or entities in evading or violating the provisions of UNSCR 1737 (2006), UNSCR 1747 (2007), UNSCR 1803 (2008) and UNSCR 1929 (2010) or this Decision as well as other senior members and entities of IRGC and IRISL and entities owned or controlled by them or acting on their behalf, as listed in Annex II."
Article 23 provided for the Council, acting by unanimity "on a proposal from Member States or from the High Representative of the Union for Foreign Affairs and Security Policy", to establish the list in Annex II and adopt modifications to it.
The 2010 Decision was implemented by Council Regulation (EU) No 961/2010 ("the 2010 Regulation"). Such differences as there are between the detailed wording of the Decision and that of the Regulation are immaterial for present purposes.
The claimants were not listed in the annexes to the 2010 Decision or the 2010 Regulation. They were added in 2011, as described below.
The Council's decision-making process is summarised in a witness statement of Mr Ajay Sharma, Head of the Iran Department at the Foreign and Commonwealth Office ("the FCO"). He explains that one or more Member States may propose an individual or entity for designation under the EU sanctions regime but that all decisions to designate require unanimity and are collective Council decisions. A proposal is followed by successive rounds of discussion in working groups and at the Council Committee of Permanent Representatives (COREPER). If all Member States agree to a listing, a Council decision and implementing regulation are drafted and are subject to scrutiny by another working group prior to their adoption by a Council of Ministers. One of the points made by Mr Sharma is that there is no mechanism to provide protection for sensitive material and that Member States are often unable to disclose such material during the decision-making process.
A Council document dated 22 June 2007, drawn up under the previous EU sanctions regime but still in force at the material time, annexed "practical recommendations" with regard to the listing procedure. The annex stated that proposals for listings should be clear and unequivocal and should aim to include sufficient details (identifiers) so that the listing decision, once it entered into effect, could be effectively implemented by economic operators and national authorities. With regard to natural persons the information should aim to include in particular surname, first name, alias, sex, date and place of birth, nationality and address, identification or passport number. It was primarily the responsibility of those submitting the proposals to provide such identifiers. The recommendations continued:
" Reasons for listing and notification of the listing
4. Proposals for autonomous listings or additional listings to UN sanctions should include individual and specific reasons for each listing, where the intended sanctions include an asset freeze. It is the responsibility of those submitting the proposal to provide such reasons. Inputs from the Heads of Missions located in the country(ies) concerned will be requested where appropriate.
5. Those reasons should, in principle, be set out as concisely as possible in a separate column in the Annex to the legal act containing the list of the persons, groups and entities to be listed. As this act will be published in the Official Journal, these reasons should be capable of being made public. Notification is effected through publication in the Official Journal.
6. In exceptional cases, where it is considered that the reasons for the listing are not suitable for publication, because of considerations of privacy and security, the reasons will need to be notified (e.g. by letter) to the person, group or entity concerned. Where this is not possible (because no address is available) a notice should be published in the C-series of the Official Journal on the same day as the publication of the legal act in question informing them that the Council will transmit the reasons for their listing to them on request.
Additional information
7. Additional information in support of new proposals, with the appropriate level of classification, may be submitted to the Presidency for distribution by the Council Secretariat. The information provided should meet the criteria set out in the basic legal act (Common Position).
8. A copy of the material circulated will be stored in a centralised archive, to be set up for this specific purpose." (Emphasis in the original.)
The process leading to the Secretary of State's decision to propose the claimants for designation by the Council is described as follows in Mr Sharma's witness statement:
"32. In July 2011 HMG began to identify potential entities and individuals for designation in preparation for a further round of EU sanctions. There was also a concern that effective sanctions were time critical due to the risk of Iran reaching a point in its nuclear capability where its progress would be irreversible. Four of the five shipping individuals (the exception being Mr Nabipour) were identified as potentially suitable for proposal to the EU Council on 28 July 2011.
33. Further research and collation of evidence in support of these designations continued through to early September 2011. Mr Nabipour was added to the list of proposed designees on 26 August 2011 following a routine cross-Whitehall meeting to review Iranian shipping developments.
34. On 8 September 2011, the proposal to list the Claimants was given initial consideration by the FCO. Further cross-Whitehall meetings were held on 6 and 12 October 2011 to discuss draft text of the justification for the designation proposals for each of the individuals on the full list.
35. A version of the list amended to reflect the approved unclassified text was sent to the FCO Iran team on 25 October 2011.
36. On 26 October FCO undertook a final review of the unclassified text and examined the list to ensure they were content that the descriptors provided sufficient information to propose the designation. Once consensus was reached,...
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