Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3

Mr Youssef, an Egyptian national, challenged the Foreign Secretary's 2005 decision to lift a hold on his UN Sanctions Committee designation as associated with Al-Qaida. The Supreme Court dismissed his appeal, upholding the reasonable suspicion standard and rejecting torture-taint arguments.

Facts

The appellant, Mr Youssef, is an Egyptian national living in the United Kingdom since 1994. On 14 September 2005, the Secretary of State for Foreign and Commonwealth Affairs, acting as a member of the UN Security Council’s 1267 Sanctions Committee, removed the United Kingdom’s hold on the appellant’s designation as a person associated with Al-Qaida. This designation triggered an asset freeze under Chapter VII of the UN Charter, implemented in the UK via EC Regulation 881/2002 under the European Communities Act 1972.

The original designation request came from Egypt and included evidence which the Secretary of State knew was or may have been obtained by torture. However, the Secretary of State’s own decision was based on a separate, untainted Security Service assessment referring to the appellant’s links with Egyptian Islamic Jihad (EIJ), his arrest in 1998 in connection with a planned bomb attack on the US embassy in Tirana, and his continuing extreme views.

From 2009 to 2012, the Secretary of State actively supported delisting, but other committee members did not agree. Following the establishment of the UN Ombudsperson, a 2014 report recommended retention on the list, citing public statements praising Usama bin Laden and Al-Qaida. The Secretary of State accepted this recommendation in September 2014.

Issues

The appeal raised four principal issues:

(i) Torture-tainted material

Whether the Secretary of State was under a domestic legal obligation not to participate in a committee decision potentially tainted by torture evidence relied upon by other members, even where his own reasons were untainted.

(ii) Absence of power

Whether the Secretary of State’s decision lacked the statutory authority required by the principle in Entick v Carrington for interferences with property rights.

(iii) Standard of proof

Whether the “reasonable grounds to suspect” standard applied by the Secretary of State was too low, particularly in light of Ahmed v HM Treasury [2010] UKSC 2.

(iv) Standard of review

Whether the courts below were wrong to apply Wednesbury irrationality rather than proportionality or full merits review.

Arguments

Mr Otty QC for the appellant argued that the jus cogens prohibition on torture required the Secretary of State to forego participation in any decision possibly tainted by torture evidence; that the interference with property rights required clear statutory authority absent here; that the reasonable suspicion test was inconsistent with the reasoning in Ahmed; and that fundamental rights demanded a proportionality or full merits review.

Mr Swift QC for the Secretary of State conceded justiciability of the Secretary of State’s decision but argued that other committee members’ decisions were not justiciable in UK domestic courts. He submitted that the prerogative power was sufficient, that the reasonable suspicion test reflected the preventive purpose of the regime, and that the review undertaken was already appropriately intense.

Judgment

Lord Carnwath (with whom Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agreed) dismissed the appeal.

Torture-tainted material

The Court held that while the prohibition on torture has jus cogens status and states must reject the “fruits of torture”, the authorities (including Furundzija and A v Secretary of State for the Home Department (No 2) [2005] UKHL 71) do not impose a duty on states to inquire into the possible reliance on torture-tainted evidence by other states acting within an international organisation. The Secretary of State’s own reasons being untainted, no breach was established.

Absence of power

The Court held that the interference with the appellant’s property rights occurred through Regulation 881, given legislative effect in the UK via the European Communities Act 1972, providing ample statutory authority. The Secretary of State’s prior decision in the committee was a lawful exercise of prerogative for which no separate statutory authority was required.

Standard of proof

The Court distinguished Ahmed as turning on the interpretation of the 1946 Act in relation to a domestic Order in Council. The reasonable suspicion test was appropriate given the preventive purpose of the regime, supported by the FATF Special Recommendation III interpretative notes and the Ombudsperson’s standard of “sufficient information to provide a reasonable and credible basis for the listing”. The Court emphasised that risk assessment differs from determining historical wrongdoing and cannot simply be assessed on a balance of probabilities.

Standard of review

Acknowledging the developing case law in Kennedy, Pham and Keyu, the Court accepted that a proportionality-based review may be appropriate in cases involving fundamental rights, but rejected full merits review as inconsistent with the allocation of decision-making to member states under the UN regime. In any event, the appellant had failed to identify any aspect of the reasoning open to challenge, and a wide margin was allowed to the executive on risk assessment.

The Court also indicated it would be slow to grant any remedy given the appellant’s unrefuted association with Al-Qaida support, noting judicial review is discretionary.

Implications

The judgment confirms several important principles. First, where a Minister participates in an international body’s decision affecting an individual living in the United Kingdom, his decision may be amenable to domestic judicial review, but only by reference to his own reasons; the reasons of the international body itself remain challengeable only under international law or via European review mechanisms.

Second, the jus cogens prohibition of torture does not extend to imposing on UK Ministers a duty to police the evidential basis of decisions made by other states within international organisations, absent a definitive finding of illegality.

Third, in the context of preventive asset-freezing regimes targeting terrorism financing, a “reasonable grounds to suspect” standard is consistent with international practice and with the preventive purpose of such measures. Ahmed is confined to its statutory context concerning the United Nations Act 1946.

Fourth, the judgment signals that the standard of review in UK administrative law is in transition. Lord Carnwath expressly invited a future enlarged panel of the Supreme Court to undertake an authoritative review of the appropriate tests, including the role of proportionality, and to provide more structured guidance than concepts such as “anxious scrutiny” and “sliding scales”. The Court accepted that proportionality may be appropriate where fundamental rights are interfered with, but emphasised that in national security contexts a wide margin of judgment is accorded to the executive.

Finally, the judgment reinforces that judicial review is discretionary and that an appellant’s own conduct and failure to refute serious allegations may properly weigh against the grant of relief.

Verdict: Appeal dismissed.

Source: Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3