Khaled & Anor, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

Whether judicial review proceedings engage art 6 depends on their substance, not merely the formal identity of the decision-maker. Where a domestic authority’s assessment effectively determines a person’s listing, asset-freezing and reputational consequences, the proceedings may concern the determination of civil rights and may be directly decisive of them. The issue cannot be resolved without deciding what information was supplied to the international body. A preliminary court should therefore leave the ultimate application of art 6 to the judge determining the substantive claim where that factual issue remains disputed.

The claimants challenged decisions by the Foreign and Commonwealth Office concerning their inclusion on, and proposed removal from, the United Nations Consolidated List of persons associated with Al-Qaida, Usama bin Laden and the Taliban. They also challenged related decisions and failures, including delay in seeking removal and the information supplied to the Sanctions Committee. The court extended permission and time for several challenges which had previously been refused on delay grounds.

The preliminary issue was whether the eventual judicial review proceedings involved the determination of the claimants’ civil rights under art 6(1) of the European Convention on Human Rights, particularly their rights to reputation and peaceful enjoyment of property.

1. Permission and delay. The court extended time and granted permission for the claimants to challenge the earlier decisions. Those challenges could materially improve their position in seeking removal from the Consolidated List and were sufficiently important to justify an extension, particularly because much of the evidence would overlap with the later challenges. Mr Khaled’s challenge to the earlier failure to seek removal was also broadened to cover the whole period before 4 November 2009. Mr Maftah was granted permission to challenge the corresponding decisions.
2. Civil rights. The freezing of assets affected the claimants’ civil right to the free enjoyment of property. The publicity arising from their listing affected their reputation, which was also a civil right within art 6(1), following Werner v Poland (2003) 36 EHRR 28 at [33]. It was unnecessary to decide whether the Convention rights under art 8 and art 1 of the First Protocol were themselves civil rights for art 6 purposes.
3. Substance over form. The Secretary of State’s argument that the dispute concerned only the exercise of public-authority powers, and that the proceedings could not be directly decisive because the Sanctions Committee and European Commission made the formal listing decisions, was not determinative. If the Sanctions Committee received only the limited information identified in the judgment, it may have made no independent assessment and effectively endorsed the FCO’s request. In that event, the FCO’s decision could be directly decisive of the claimants’ reputation and property rights.
4. Factual issue and disposition. The Secretary of State had not accepted that the information identified was the only information supplied, and the position concerning Mr Maftah was expressly qualified. The applicability of art 6 therefore depended on disputed facts which could not be resolved at the preliminary stage. The issue was left for the judge hearing the substantive claims. Costs were provisionally reserved to that judge, and any application concerning an appeal was to be made within 14 days.

First-instance preliminary judgment. The court indicated that the applicability of art 6 would ultimately be decided at the substantive hearing.