R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Neuberger,Lord Mance,Lord Wilson,Lord Sumption |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] UKSC 3 |
| Court | Supreme Court |
| Date | 27 January 2016 |
[2016] UKSC 3
Lord Neuberger, President
Lord Mance
Lord Wilson
Lord Sumption
Lord Carnwath
Appellant
Timothy Otty QC Dan Squires
(Instructed by Birnberg Peirce & Partners)
Respondent
Jonathan Swift QC Andrew O'Connor QC Louise Jones
(Instructed by The Government Legal Department)
Heard on 18 and 19 November 2015
(with whom Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agree)
The appellant (Mr Youssef), an Egyptian national, has been living in this country since 1994. He challenges a decision made by the respondent Secretary of State on 14 September 2005, in his capacity as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee is responsible for maintaining a list of persons and entities subject to the asset freeze imposed on persons "associated with Al-Qaida" under Chapter VII of the United Nations Charter. The committee acts by "consensus": all members must agree to a nomination for inclusion on the list, or to de-listing. The United Nations sanctions regime, and the constitution of the committee, are described in more detail in the judgment under appeal of Laws LJ in the Court of Appeal, as is the drastic effect of listing on the individuals concerned: [2013] EWCA Civ 1302; [2014] QB 728, paras 3–12.
The decision under challenge removed the hold which the United Kingdom had previously placed on the appellant's designation by the committee. It had the consequence that thereafter he became subject to the asset freeze imposed by virtue of the Charter and of implementing European and national legislation. The appellant's first contention is that, although the Secretary of State made his own decision on untainted evidence, he was aware that information on which other members were proceeding was or might have been obtained by torture; and that accordingly he was under an obligation, enforceable in domestic law, not to lend his aid to a committee decision which might be so tainted.
The appellant's case, with others, came before this court in earlier judicial review proceedings in Ahmed v HM Treasury [2010] UKSC 2; [2010] 2 AC 534 (to which I will return below). They related to an implementing order in this country made under section 1 of the United Nations Act 1946. The court held that the order was outside the powers conferred by the Act. However, that decision left in place Council Regulation (EC) No 881/2002, which implemented the asset freeze under European law, and had direct effect in the United Kingdom under the European Communities Act 1972. Although this court declined to suspend its order to enable new regulations to be made under that Act ( [2010] UKSC 5; [2010] 2 AC at p 689), such provisions, including the related licensing provisions and criminal sanctions, were made soon afterwards, in effect reproducing the controls previously imposed under the 1946 Act (Al-Qaida and Taliban (Asset-Freezing) Regulations 2010 (SI 2010/1197), since superseded by 2011 Regulations ( SI 2011/2742) to similar effect).
In evidence in the Ahmed proceedings it was disclosed that, following a review of the information then available, the government had decided that the appellant no longer met the criteria for designation. From June 2009 until late 2012 the Secretary of State actively supported his removal from the Sanctions Committee's Consolidated List, and attempted to persuade other members to agree, but without success. The appellant complains of the Secretary of State's failure at that stage to extend his grounds for seeking delisting to include the tainted nature of the evidence apparently relied on by other members.
Meanwhile (by Resolution 1904 of 2009) the Security Council had established the new office of "Ombudsperson", inter alia, to assist the committee in considering and responding to requests for delisting. The appointment of the first Ombudsperson (Judge Kimberly Prost) and her understanding of this new role were described by Laws LJ in the Court of Appeal (para 8). In April 2013 the appellant applied to the Ombudsperson requesting delisting. Her report to the committee, submitted in February 2014, recommended that he be retained on the list. On 30 July 2014 she wrote to the appellant informing him of her recommendation and the reasons for it. Her letter indicated that she had excluded from her analysis material tainted by torture (p 4). It reviewed a number of public statements attributed to the appellant between 2011 and 2013. It is sufficient to refer, as an example, to the most recent: a sermon given in May 2013, in which he "offered extensive praise of Usama bin Laden", labelled certain Al-Qaida linked groups as "the fruits of this Martyr [Bin Laden] and his good devout brethren", and asserted that "America will crumble thanks to those Mujahids and by virtue of this Martyr". The Ombudsperson commented that such repeated statements "clearly glorify Usama Bin Laden and the Al-Qaida organisation for its various activities in different locations", and could be "categorised as an exhortation to others to join in the continued expansion of the organisation in its aims, which includes the destruction of America" (p 9).
On 10 September 2014 the Secretary of State informed the appellant that he agreed with the Ombudsperson's recommendation and would no longer support delisting.
On 30 October 2014 the committee's narrative summary of reasons for listing was updated to take account of the Ombudsperson's findings. The revised summary includes the following:
"[The appellant] is a known figure within extremist circles. He uses an Internet site, and other media, to support terrorist acts or activities undertaken by Al-Qaida as well as to maintain contact with a number of supporters around the world. He offers praise for Al-Qaida as an organisation and, directly or by inference, encourages individuals to join and support that organisation and its activities on a global basis. As of early 2014, [the appellant] provided Al-Qaida and Al-Nusrah Front for the People of the Levant (QE.A.137.14) with guidance and justification for their operations and tactics."
The court has no evidence from the appellant to counter the allegations on which the 1267 committee now relies. In his only witness statement in these proceedings, dating from 3 December 2010, he simply rejected (without further explanation) the notion that he is "in any way involved in terrorism, or … linked in any way to Al-Qaida or the Taliban". The court was told that he intends to challenge the Secretary of State's recent decision not to support delisting, but not on what grounds. It has been agreed between the parties that further action will await the decision of the court in this appeal, at which point the Secretary of State will reconsider his decision so far as necessary in the light of this court's findings and of any representations made by the appellant.
The appellant's immigration status is not in issue in these proceedings. He claimed asylum on arrival in 1994, but that claim was rejected under article 1F(c) of the Refugee Convention ("serious reasons for considering that … he has been guilty of acts contrary to the purposes and principles of the United Nations"). Since October 1999 he has remained under a series of grants of discretionary leave to remain. An appeal against refusal of asylum under article 1F(c) is currently pending before the Upper Tribunal. Consideration of his application for indefinite leave to remain has been deferred by the Home Office pending a final decision on his asylum application.
Decisions of the European Court of Justice in Kadi v Council of the European Union (Joined Cases C-402/05P and C-415/05P), [2009] AC 1225 (" Kadi I"), and of the General Court in Kadi v Commission of the European Communities (Council of the European Union intervening) ( Case T-85/09) [2010] ECR II 5177 (" Kadi II") established that inclusion of an individual within a list under EC Regulation 881/2002 ("regulation 881") was subject to judicial review in Europe, inter alia on grounds relating to the accuracy and reliability of the evidence relied on ( Kadi II paras 141–143). Regulation 881 was amended by Council Regulation (EU) No 1286/2009 to create a mechanism for review by the Commission (articles 7(a) and 7(c)).
In July 2010 the appellant applied to the General Court of the European Union for removal from the list in regulation 881. In a decision given on 21 March 2014 ( Case T-306/10) the court held that the Commission had failed to review his inclusion under the required procedures, but it dismissed his claim that his retention on the list was irrational. On 17 December 2014 the European Commission sent to the appellant an updated statement of reasons for listing under regulation 881 in the same terms as the 1267 committee's summary. The appellant responded on 26 January 2015 denying those allegations. He has lodged an application for legal aid with the EU General Court to enable him to challenge the decision to continue his listing under the regulation.
The present claim for judicial review was issued in December 2010. It challenged the legality both of the Secretary of State's decision in 2005 to lift his hold on designation, and also of his refusal, in a letter of 14 October 2010, to extend his request for delisting to include the ground that the committee's decision had been based on torture-tainted evidence. The claim was dismissed by the Divisional Court in July 2012, and by the Court of...
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