Youssef v Secretary of State for Foreign and Commonwealth Affairs: CA 29 Oct 2013

The claimant appealed from rejection of his judicial review of a decision that he be placed on a list of persons subject to sanctions and therefore without access to money save with the consent of the government.
Held: The Secretary of State was responsible for the lawfulness of his own reasons, but not in effect for policing the reasoning of other member states.
Laws LJ said that ‘the court cannot ignore an established rule of international law, far less one which has the force of ius cogens erga omnes’, and declined therefore to base his decision on the proposition that ‘the Government’s conduct of foreign relations enjoys something close to an immunity from judicial review’. He continued: ‘The true answer to Mr Otty’s argument on ground 2 rests in my judgment on the facts of the case. In R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 I said: ‘[T]he status of ius cogens erga omnes empowers but does not oblige a state to intervene with another sovereign state to insist on respect for the prohibition of torture (para 151 of Prosecutor v Furundzija) . .’
But Mr Otty’s submission entails an obligation on the Secretary of State so to intervene. Given that the Foreign Secretary’s own reasons for lifting the hold were not tainted by torture evidence, there is nothing in Mr Otty’s case save an insistence that the United Kingdom should, in effect, have stymied the designation because other states were not so pure. The law did not require him to do so.’
Laws LJ held that the necessary authority was provided by the European regulation: ‘I accept that if the Foreign Secretary’s release of the hold on the claimant’s designation rested solely on the Prerogative power, then it would appear to have been done without legal authority. But that is not the position. As a matter of domestic law the Foreign Secretary was obliged to apply the Consolidated List regime to its proper subjects by force of article 2(1), (3) of and Annex I to Regulation 881/2002. There might be an argument on the question whether the general words of the European Communities Act 1972, by virtue of which the Regulation has the force of law in the United Kingdom, are sufficient to authorise the EU legislature to empower or require the Secretary of State to deprive an individual of access to any economic resources (with or without proper proof of what was said against him); but no such argument has been run in this or any case, and it would plainly not be appropriate to canvass it now.’
Maurice Kay VP CA, Laws, Sullivan LJJ
[2013] EWCA Civ 1302, [2014] 2 WLR 1082, [2013] WLR(D) 412, [2014] 1 QB 728
Bailii, WLRD
England and Wales
See AlsoYoussef and Others v The Secretary of State for Foreign and Commonwealth Affairs Admn 14-Nov-2011
The claimant sought to challenge the continued inclusion of his name on a list of persons subject to restrictions for showing sympathy to al Qaida, asking at this hearing: ‘Whether the Secretary of State’s decision to propose the relevant Claimant . .
Appeal fromYoussef, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 23-Jul-2012
The claimant challenged having been listed as an associate of Al-Qaida, with the resulting freezing of assets and a travel ban.
Held: His request for judicial review failed. . .
CitedAl Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 12-Oct-2006
The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in . .

Cited by:
Appeal fromYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .

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Updated: 07 April 2021; Ref: scu.517025