Hay v HM Treasury

Hearing date: 1 st July 2009

The Honourable Mr Justice Owen :

The claimant is the subject of a freezing order over his assets by virtue of the Al Qaida and Taliban (United Nations Measures) Order 2006 (2006 NO 2952) (The 'AQO'). His designation as a person subject to the AQO was the automatic consequence of his addition to the Consolidated List of Usama Bin Laden, Al Qaida and the Taliban, and other persons and organisations associated with them, maintained by the committee of the Security Council of the United Nations set up pursuant to UN Security Council Resolution 1267 (1999) (the '1267 Committee').

By his application for permission to apply for judicial review dated 9 February 2009 the claimant sought a 'merits based review' of the basis for his designation by the 1267 Committee, and in the alternative if such a review was not possible, a declaration that his continuing designation is unlawful.

At an oral hearing on 2 April 2009, Collins J gave the claimant permission to apply for judicial review, and directed, inter-alia, that he lodge and serve an amended claim form. As a result of developments shortly before trial, the claimant filed an amended Statement of Grounds by which he indicated that he no longer pursued his claim to a merits based review of his designation. He now seeks an order quashing the AQO “… at least as applied in his case.”

The claimant's case in essence is that the AQO has resulted in a fundamental and unjustified interference with his property and privacy rights, that it is enacted in such a way that he is deprived of the right effectively to challenge such interference in the courts, and is accordingly ultra vires section 1 of the United Nations Act 1946.

Background Facts

The claimant is 49 years of age. He is a married man who lives in London with his wife and four of his five children. He and his wife are Egyptian nationals. They arrived in the United Kingdom with three of their children on 6 May 1994. On arrival he claimed asylum; and on 29 November 1999 he and his family were granted exceptional leave to remain, subsequently extended until 28 June 2004. An application for indefinite leave to remain was refused on 25 September 2008; but he and his family were granted a further six months discretionary leave to remain until 26 March 2009. A further application by the claimant for leave to remain is currently outstanding; but on 21 May 2009 his wife and children were granted indefinite leave to remain in the United Kingdom.

The claimant has been subject to the AQO (and its predecessor) since 6 October 2005 when he was notified of his designation by the 1267 Committee by the interested party, the Foreign and Commonwealth Office (FCO). The effect of the designation is draconian. His bank accounts and credit cards are frozen. He is prohibited from receiving any money from any source. It is a criminal offence for any third party to provide him with any funds or economic sources without the permission of the 1267 Committee and/or HM Treasury (HMT). He receives subsistence, food, accommodation and clothing from his wife, who is in receipt of welfare benefits. She is subject to the provisions of a Financial Sanctions Basic Expenses Licence granted by HMT, under which she is required to account for all expenditure, with receipts, on a monthly basis. Failure to report or any other breach of the terms of the licence is a criminal offence.

The letter from the FCO dated 6 October 2005, by which the claimant was notified of his designation by the 1267 Committee, attached a copy of the Committee's guidelines (see paragraph 16 below), and directed his attention in particular to the procedure for petitioning the government of residence and/or citizenship to request a review of his case. On 15 December 2005 Birnberg Pierce & Partners, solicitors for the claimant, wrote to HMT requesting the UK Government to approach the 1267 Committee seeking disclosure of the identity of the state that had sought the claimant's listing, and of the information relied upon by the committee leading to his designation. On 24 January 2006 the UK's Deputy Permanent Representative to the UN wrote to the Chairman of the 1267 Committee informing him of the request that had been made by the claimant's solicitors. In his witness statement dated 19 June 2009 and filed in support of HMT's case, Gareth Roberts, Head of the Sanctions Team in the FCO, gives an account of the repeated steps taken on behalf of Her Majesty's Government between January 2006 and August 2008, both to raise the issue with the 1267 Committee, and bilaterally with the designating state. On 7 December 2007 the 1267 Committee informed the United Kingdom Permanent Representative to the United Nations that the requested information was confidential, and that the committee was not in a position to permit its release without the express authority of the designating state. But by letter dated 28 September 2008 the FCO notified the claimant's solicitors that it had received permission to release information provided to the 1267 Committee, namely an Interpol Red Notice. Permission was not given for release of the identity of the designating state. The letter also made it clear that the information that the FCO was now permitted to disclose was not the totality of the information before the committee in relation to the claimant's designation.

In response to the letter before action dated 11 November 2008, the Treasury Solicitor wrote to the claimant's solicitors on 25 November:

(i) informing them that discussions were in progress at the UN “concerning the arrangements to be made under Security Council resolution 1822 for the review of all existing AQ designations by 2010, and the provision of a narrative summary of reasons for each listing.”

(ii) advising that it was possible that the review process, once initiated, could be accelerated for the claimant at UK instigation, and that it might assist if the claimant were to make a 'Focal Point' application to the 1267 Committee (the process by which a designated person may directly petition the committee for a review of his designation under the current Guidelines of the Committee for the Conduct of its Work (see paragraph 21 below)), a course of action that had been advised by the FCO in its letter of 28 September.

(iii) stating that the FCO would itself conduct a review of all information available to it relating to the claimant's designation in order to consider whether to support his de-listing before the 1267 Committee, and asking them to send any information relevant to such a review to the FCO as soon as possible.

On 4 February 2009, and on 23 and 25 March, following the issue of these proceedings on 9 February, the issue of the claimant's designation was again raised bilaterally with the designating state.

The current position is set out at paragraph 36 of Mr Roberts' witness statement:

“The FCO has gathered the material held by the Government in order to complete a review of the claimant's designation against the criteria set out in the relevant resolutions, in particular (SIC) UNSCR 1617 (2005), and in accordance with the review procedure as set out in the section 9 of the Guidelines. Following the completion of the review procedure the FCO has concluded that the claimant's listing under the 1267 regime is no longer appropriate. Further information was requested, but has not yet been provided by the designating state. The UK will therefore contact the 1267 Committee to state that the claimant's listing is no longer appropriate and the UK will also submit and pursue a de-listing request in respect of the claimant.”

HMT's current position is amplified in the skeleton argument submitted on behalf of both HMT and FCO:

“The decision taken rests on the conclusion that on the basis of the information available to him, the Secretary of State does not consider that the claimant now meets the criteria for inclusion on the Consolidated List. The conclusion reached by the Secretary of State is not determinative of the decision that will be taken by the 1267 Committee. Most obviously, any decision as to whether a person's name should be included on the Consolidated List or should remain on that list is a decision for the 1267 Committee, not for the Secretary of State acting unilaterally. Further, the decision taken by the Secretary of State is based on the information available to him. As stated above, the United Kingdom did not nominate the claimant for inclusion in the consolidated list; nor did it provide information in support of that nomination. The decision to be taken by the 1267 Committee will necessarily be taken on the basis of all information available to that committee. The 1267 Committee will determine, based on all information available to it, whether or not the claimant continues to meet the criteria for inclusion on the consolidated list.”

As the 1267 Committee is making arrangements for a review of all existing AQ designations by 2010, and as FCO has indicated that it will seek to accelerate a review in...