Youssef v Secretary of State for Foreign & Commonwealth Affairs

A domestic authority implementing the United Nations sanctions regime may use a reasonable-suspicion standard when deciding whether to support a person’s listing. Where EC Regulation 881/2002 supplies the legal basis, the common law adds no requirement that association be proved on the balance of probabilities. Once the Secretary of State is satisfied that the designation criteria are met, the duty is to allow the listing to proceed. Judicial review remains supervisory, not appellate: merits review is exceptional and was unnecessary here. The prohibition of torture, although a peremptory norm with erga omnes effect, empowers but does not oblige a State to obstruct another State’s listing where the Secretary of State’s own reasons were untainted. The appeal was dismissed.

The appellant, a United Kingdom resident, challenged the Secretary of State’s September 2005 decision to release a hold on his proposed addition to the Consolidated List under Resolution 1617 (2005). The listing froze his access to funds and economic resources. The Divisional Court dismissed his judicial-review claim: [2012] EWHC Admin 2091.

On appeal, the issues were whether reasonable suspicion was the correct standard, whether the court should review the merits, and whether knowledge that other States may have relied on torture evidence required the Secretary of State to maintain the hold. A related issue concerned the possible use of a closed material procedure.

Lord Justice Laws gave the leading judgment, with Lord Justice Sullivan and Lord Justice Maurice Kay agreeing. The appeal was dismissed.

1. Legal basis and standard. The Secretary of State was acting under the Royal Prerogative as a participant in an international regime, but the domestic legal basis for applying the regime was supplied by Articles 2.1 and 2.3 and Annex I of EC Regulation 881/2002. The common law therefore imposed no additional requirement that the relevant association be proved on the balance of probabilities.
2. Ground 3. The Consolidated List regime was preventive. Its purpose was to reduce the risk that resources would assist terrorist organisations. The materials before the Secretary of State, including Resolution 1617 (2005) and the FATF recommendations, supported a reasonable-suspicion standard. The Secretary of State acted conformably with the regime. Once satisfied that the designation criteria were met, his duty was to allow the listing to proceed.
3. Ground 1. Common-law judicial review is supervisory rather than appellate. Merits review is exceptional, arising where necessary to test legality, such as where jurisdiction depends on a precedent fact or where proportionality requires assessment of the merits. This case involved neither. The Secretary of State had no discretionary choice once the criteria were satisfied, so the conventional rationality approach was sufficient. The Court of Appeal observations in Ahmed concerning merits review were tied to preserving the vires of the AQO; the later Supreme Court decision quashing that Order removed their relevance here.
4. Ground 2. The prohibition of torture is a rule of jus cogens with erga omnes effect. It forms part of English law and may justify judicial scrutiny despite the usual restraint concerning foreign relations. However, it empowers rather than obliges a State to intervene with another sovereign. Since the Secretary of State’s own reasons were not based on torture evidence, the law did not require him to maintain the hold merely because other States might have relied on such evidence.
5. Closed material procedure. The proposed two-stage merits review would not be adopted. Since merits review was in principle inappropriate, it was unnecessary to determine the detailed procedural issues concerning the Justice and Security Act 2013.

• Court of Appeal (Civil Division) dismissed the appeal: [2013] EWCA Civ 1302.
• Divisional Court (Toulson LJ and Silber J) dismissed the judicial-review claim concerning the Secretary of State’s decision to release the hold: [2012] EWHC Admin 2091.