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

In reviewing an executive decision to support designation under an international counter-terrorism sanctions regime, the court applies ordinary public law principles. It does not substitute its own assessment of whether the designation criteria are met. Security and foreign-relations assessments attract substantial judicial respect, particularly where they involve intelligence material.

The absence of current active conduct does not necessarily negate continuing association with a terrorist organisation. It is one factor in a comprehensive assessment. A standard based on reasonable grounds for suspicion was legally permissible when applied in 2005. Withholding material under public interest immunity may affect the evidence available to the court, but does not make the decision immune from review. The court will not order the Government to support EU de-listing where that could place the United Kingdom in breach of its international obligations.

The claimant had been listed by the United Nations Al-Qaida and Taliban Sanctions Committee in 2005. His assets were frozen and a travel ban imposed. The Foreign Secretary had agreed that he met the applicable designation criteria.

The claimant sought judicial review of that decision, alleging irrationality, reliance on evidence obtained by torture and application of an insufficient standard of proof. He also challenged the Foreign Secretary’s failure to pursue further de-listing steps, including support for removal from the EU sanctions regime under Council Regulation (EC) 881/2002. The central issues were the proper standard of judicial review, the effect of redacted material disclosed on public interest immunity grounds, and the legality of the Foreign Secretary’s later decisions.

1. The application was dismissed. The court rejected the submission that it should conduct a full merits review of whether the claimant met the designation criteria. The Foreign Secretary was acting on behalf of the Government in its capacity as a member of an international body, rather than exercising a statutory power. Ordinary public law principles therefore applied. The court was not required to substitute its own judgment for that of the minister (paras [46]-[59]).
2. Assessment of intelligence and national-security risk was primarily a matter for the executive. Courts give a high degree of respect to ministerial assessments in security and foreign-relations matters. The possibility that the court might have reached a different view, or that the assessment later changed, did not establish irrationality (paras [57]-[58], [71], [83]-[84]).
3. The Foreign Secretary could rationally conclude in 2005 that the claimant remained associated with Al-Qaida or an affiliate. Current active participation was not required. Historical involvement, continuing extremist views and the assessed potential for renewed involvement were matters capable of supporting the conclusion. Absence of recent evidence was relevant but not determinative; the assessment required consideration of all the circumstances (paras [73]-[84]).
4. The court rejected the proposed two-stage process under which the claimant would first obtain review on open material and then seek a further review of the redacted material if unsuccessful. Public interest immunity creates a bilateral risk that withholding material may assist either party. The defendant’s bare assertion that redacted material was fundamental could not make the decision automatically immune from judicial review, although the absence of the full picture could justify particular respect for the minister’s decision (paras [60]-[71]).
5. The court did not need to decide whether reliance on evidence obtained by torture would in all circumstances invalidate agreement to an indefinite asset freeze. Even assuming the Foreign Secretary had lawfully concluded that the criteria were met, he was not under a legal duty to prevent designation merely because other states might rely on a different reason, or to instruct them on the permissible basis of designation (paras [85]-[90]).
6. The standard of reasonable grounds for suspecting that the claimant met the criteria was legally permissible in 2005. The later Ombudsperson formulation of sufficient information providing a reasonable and credible basis was not treated as demonstrating that the earlier standard was unlawful (paras [91]-[94]). The challenge to the Foreign Secretary’s refusal to seek de-listing on the basis that the original designation was unlawful therefore failed (para [96]).
7. The court had no legal basis to order the Foreign Secretary to support the claimant’s removal from the EU regime. The requested order could, if successful, require the United Kingdom to contravene its international obligation to give effect to Security Council decisions while the claimant remained listed (paras [97]-[100]). Mr Justice Silber agreed (para [101]).