The Queen (on the application of Hany Youssef) v The Secretary of State for Foreign, Commonwealth and Development Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 26 November 2021 |
| Neutral Citation | [2021] EWHC 3188 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1189/2021 |
and
[2021] EWHC 3188 (Admin)
Mr Justice Garnham
Case No: CO/1189/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires QC and Tim James-Matthews (instructed by Birnberg Peirce) for the Claimant
Sir James Eadie QC and Maya Lester QC and Malcolm Birdling (instructed by Government Legal Department) for the Defendant
Hearing dates: 13th & 14th October 2021
Approved Judgment
INTRODUCTION
Hany Youssef, the Claimant in these proceedings, is an Egyptian national who has lived in the UK since 1994. On 29 September 2005, Mr Youssef was designated a “sanctioned person” by the United Nations Al-Qaida and Taliban Financial Sanctions Committee (“the 1267 Committee”). As a consequence, he has been subject to a comprehensive financial sanctions regime for more than 15 years.
His designation was initially given effect in the UK by Orders in Council made pursuant to the United Nations Act 1946 (“the 1946 Act”), namely the Al-Qaida and Taliban (United Nations Measures) Orders 2002 and 2006 (“the 2002 UN Order” and “the 2006 UN Order”). Those Orders were quashed by the Supreme Court, in Ahmed v HM Treasury [2010] 2 AC 534. Subsequently, the Claimant's assets were frozen pursuant to EU Council Regulation 881/2002 which had direct effect in the UK. Following the UK's withdrawal from the EU, EC 881/2002 ceased to have domestic effect.
Since 31 December 2020, the legal basis for the continuation of the asset-freezing regime upon the Claimant has been the ISIL (Da'esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019 (“the 2019 Regulations”) made under the Sanctions and Anti-Money Laundering Act 2018 (“2018 Act”). Regulation 5 of those Regulations provides that any person designated by the UN Sanctions Committee is to be subject to the asset-freeze provisions from the end of the transition period following the UK's departure from the EU.
The Claimant advances two grounds of challenge. First, he says that the scheme of the 2018 Act and 2019 Regulations, insofar as it does not allow him access to a court which can review effectively the imposition of the asset-freezing regime upon him, is contrary to the right to “ a fair and public hearing”, guaranteed by Article 6(1) ECHR, “ which requires, at a minimum, that a court has the power to conduct an effective review of a person's designation pursuant to the sanctions regime”.
Second, he says that that scheme, “ insofar as it precludes recourse to a court which can effectively review the Claimant's designation, is not a necessary or proportionate interference with his right to respect for his private and family life, guaranteed by Article 8(1), ECHR”. The scheme, it is said, lacks the procedural safeguards necessary to satisfy the requirements of Article 8.
The Defendant, the Secretary of State for Foreign, Commonwealth and Development Affairs (“the Secretary of State”), resists the claim contending that the 2018 Act established an effective mechanism by which the Claimant can seek a review of his designation, including by a court, but that he has chosen not to avail himself of that mechanism.
Permission to apply for judicial review was granted by Sir Ross Cranston, sitting as a deputy judge of the High Court, on the basis that it was arguable
“whether the mechanism in sections 25 and 38 of the 2018 Act, with its focus on the request and its provision for judicial review of the Secretary of State's decision on the request, is sufficient, consistently with the UK's obligations under the UN Charter, to meet the claimant's common law and Article 6 and Article 8 ECHR rights to have the arbitrariness of the listing reviewed by a court.”
The Claimant was represented before me by Dan Squires QC and Tim James-Matthews; the Defendant by Sir James Eadie QC, Maya Lester QC and Malcolm Birdling. I am grateful to all counsel for their helpful and well-focused submissions, both written and oral.
THE FACTUAL BACKGROUND
The Claimant has been resident in the UK since 6 May 1994. He is a man of good character in this jurisdiction, and (in particular) has never been convicted of any terrorism offence in the UK. He was, however, convicted in absentia in Egypt by a military court, with a large number of other individuals, of terrorism offences. However, in Al-Sirri v SSHD [2009] EWCA Civ 222, a case brought by a co-defendant of the Claimant's at that trial, the Court of Appeal held that, such was the reliance on material obtained by torture in those Egyptian proceedings, an immigration tribunal in the UK was “ required by law to accord no weight whatever” to findings or convictions arising from it (see [44]).
On 29 September 2005, the Claimant was designated by the 1267 Committee. Initially, he was designated without any indication of the State responsible for requesting his designation, the reasons for his designation or the nature of the evidence which supported those reasons. As a consequence of his designation, the Claimant was subject to the asset freezing regime initially contained in the 2002 UN Order and the 2006 UN Order.
In September 2007, a Mr Ahmed (together with a number of others) commenced judicial review proceedings against HM Treasury, seeking to set aside directions made under the 2006 UN Order. On 24 April 2008, Collins J gave judgment for the Claimants in those proceedings ( ( Ahmed v HM Treasury [2008] EWHC 869 (Admin)). On 30 October 2008, the Court of Appeal allowed the Treasury's appeal in part, holding that those subject to 1267 Committee listing could seek a “ merits-based review” of their designation by a UK court ( [2008] EWCA Civ 1187). The Respondents obtained leave to appeal that decision to the Supreme Court.
Meanwhile, on 9 February 2009, the Claimant had issued a claim for judicial review challenging the vires of the 2006 UN Order, and seeking a review of the type identified as appropriate by the Court of Appeal in Ahmed by challenging the UK Government's failure to request the UN to de-list him. On 1 July 2009, Owen J allowed that claim, holding that the 2006 UN Order was ultra vires the 1946 Act because it subjected the Claimant to asset freezing measures without effective access to a court ( [2009] EWHC 1677 (Admin)).
In the course of those proceedings, the Secretary of State had provided a witness statement, dated 19 June 2009, indicating that the UK considered the Claimant's listing was “ no longer appropriate” and that it would “ submit and pursue a de-listing request”. For a period of some five years thereafter, the UK made extensive attempts to secure the Claimant's de-listing. However, it is apparent that one or more members of the 1267 Committee declined to agree to his delisting and in consequence, the Claimant remained listed by the 1267 Committee. That remains the position today.
HM Treasury appealed the order of Owen J, pursuant to a certificate granted by the judge on 14 July 2009 under section 12 of the Administration of Justice Act 1969 and with leave of the Appeal Committee of the House of Lords (a “leap frog” appeal). The Supreme Court heard the appeal of the Claimants in Ahmed and the appeal of HM Treasury in Mr Youssef's case together. The Supreme Court allowed the appeal of the Claimants in Ahmed, and dismissed the appeal of HM Treasury, in the Claimant's case [2010] UKSC 2 [2010] 2 A.C. 534. I consider that decision further below.
On 7 September 2010, the Claimant was provided with a “ narrative summary” by the 1267 Committee, setting out the reasons for his listing. That summary demonstrated that the Claimant's designation was based upon his conviction in Egypt. As a result, in December 2010, he issued a second judicial review claim in which he sought to argue that the UK had acted unlawfully in supporting a designation it knew was based upon evidence tainted by torture. That claim was dismissed by the Divisional Court (Toulson LJ and Silber J) on 23 July 2012 ( Youssef v SSFCA [2012] EWHC 2091). The Claimant appealed. The Court of Appeal dismissed that appeal on 29 October 2013 ( [2012] EWCA Civ 1302). The Claimant appealed to the Supreme Court.
It became clear during the course of that judicial review that, while the narrative summary set out what was said to be the reasons for the 1267 Committee's listing, individual members of the Committee may have relied on different reasons and different material, in deciding whether to support listing or de-listing, and those reasons and that material may not have been shared with other Committee members. The evidence submitted by the Secretary of State explained how members of the 1267 Committee make decisions:
“In terms of the 1267 Committee and the process undertaken by other member states in evaluating [requests for listing], it is important to note that the evaluation of the material provided by a Designating State is conducted away from the Committee, and the UK is not party to the internal evaluation processes conducted by other Member States. When the UK evaluates listing requests made by other Member States, the UK's decision whether or not to agree a proposed listing may be based upon or influenced by information at the disposal of UK officials, which would not necessarily be shared within the Committee itself.”
On the appeal from the decision of the Court of...
To continue reading
Request your trial
-
Boris Mints v PJSC National Bank Trust
...of construction, without presumptions in either direction.” 24 She also noted that in R (Youssef) v Secretary of State (“ Youssef”) [2021] EWHC 3188 (Admin); [2022] 1 WLR 2454, where an Ahmed-type challenge to orders under SAMLA failed, Garnham J made the point that clear words need not b......
-
PJSC National Bank Trust v Boris Mints
...of construction, without presumptions in either direction.” 70 The Defendants also pointed to R (Youssef) v Secretary of State [2022] 1 WLR 2454, where an Ahmed-type challenge to orders made under the 2018 Act failed but Garnham J en route to that outcome made the point that clear words ne......
-
LLC Synesis v Secretary of State for Foreign, Commonwealth and Development Affairs
...a designated person's rights under Articles 6 and 8 of the ECHR: see para 104 of the decision of Garnham J in R (Youssef) v SSFCDA [2021] EWHC 3188 (Admin); [2022] 1 WLR 29 Finally, my attention was drawn to the overview provided by Cockerill J in PJSC National Bank Trust and another v Mi......
-
Anzhelika Khan v The Secretary of State for Foreign, Commonwealth and Development Affairs
...there is some guidance in the existing cases. In R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs [2022] 1 WLR 2454 [68–102] Garnham J explained that the review mechanism in s 38 of SAMLA is the means by which the State guarantees the minimum threshold of ......
-
Balancing Human Rights Protections And International Obligations In The Post-Brexit UK Sanctions Regime: John Binns Writes LexisNexis Case Note
...for people listed under financial sanctions. R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs [2021] EWHC 3188 (Admin) What are the practical implications of this As a first major sign of how the courts will police our new domestic framework for sanctions, ......
-
Balancing Human Rights Protections And International Obligations In The Post-Brexit UK Sanctions Regime: John Binns Writes LexisNexis Case Note
...for people listed under financial sanctions. R (Youssef) v Secretary of State for Foreign, Commonwealth and Development Affairs [2021] EWHC 3188 (Admin) What are the practical implications of this As a first major sign of how the courts will police our new domestic framework for sanctions, ......