Dr Imad Nassani & Ors, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs

At the permission stage, a claimant must show an arguable ground with a realistic prospect of success. General challenges to sanctions regulations will fail where the regulations state permissible statutory purposes and the Minister’s evaluative judgment is supported by the statutory report. The extra-territorial reach of the International Covenant on Civil and Political Rights depends on State jurisdiction, not merely effects outside the territory. A human-rights challenge may nevertheless be arguable where sanctions, together with risk-avoidance by financial or postal institutions, practically prevent family remittances or correspondence. Such issues require consideration of the applicable Convention right, the distinction between negative and positive obligations, and justification and proportionality. Where the complaint concerns functions under Part 1 of the Sanctions and Anti-Money Laundering Act 2018, statutory review is the appropriate procedure.

The claim challenged the Secretary of State’s decision to maintain, rather than revoke, the Syria (Sanctions) (Exit) Regulations 2019. The claimants relied on domestic and international human-rights obligations, including alleged effects on Syrian civilians, restrictions on travel, family visas, remittances and correspondence.

The court considered whether any ground was arguable with a realistic prospect of success and, if so, whether judicial review or statutory review was the appropriate procedure. Permission was sought at the permission stage of judicial-review proceedings.

1. General grounds. Permission was refused on the general challenges to the making and maintenance of the sanctions regime. The purposes of the 2019 Regulations were stated in regulation 4, and the statutory reasoning was set out in the report required by section 2(4) of the Sanctions and Anti-Money Laundering Act 2018. Whether the statutory purposes made regulations appropriate involved an evaluative judgment for the Minister. The alleged breaches of international obligations, terrorism, gross human-rights violations and international humanitarian law were not arguable with a realistic prospect of success.
2. The court rejected the proposed extra-territorial application of ICCPR rights. The relevant concept was jurisdiction, as under Article 1 of the ECHR and the HRA. Neither the universal or non-derogable character of a right nor effects outside the territory established jurisdiction. The Wall Advisory Opinion concerned an occupying power, and did not support the wider proposition advanced.
3. The challenge to the prohibition on direct flights was not realistically arguable. It was a general restriction capable of justification and proportionality assessment, allowing for the latitude and institutional position of the primary decision-maker.
4. Arguable grounds. Permission was granted on narrow claims that the practical inability to remit money to, or receive money from, close family members in Syria, and the inability to send correspondence, violated the claimants’ Article 8 and/or A1P1 rights. The court did not determine the merits. Relevant issues included the scope of Article 8, Article 14 and A1P1, the distinction between negative and positive obligations, whether the practical effects were attributable to the Regulations, and whether any interference was necessary and proportionate.
5. Procedure and order. Decisions to make, maintain, amend or revoke regulations under Part 1, and potentially decisions concerning ancillary arrangements facilitating remittances or correspondence, fell within section 38 statutory review. The claimants were affected persons for that purpose. The approved grounds were transferred to statutory review, the judicial-review claim was stayed with liberty to restore, and permission was otherwise refused. The remainder of the claim was dismissed.