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Introduction

Will_Holder_phOn 18 and 19 November 2015, the Supreme Court will hear an appeal for judicial review of the Foreign Secretary’s decision to consent to the addition of the appellant to the United Nations’ Consolidated List of members of Al-Qaida and its associates pursuant to UN Security Council Resolution 1617. This resolution imposes a mandatory duty on UN Member States to freeze the assets of individuals whose names appear on the Consolidated List.

The issues that the Supreme Court will consider include:

  1. The appropriate standard of judicial review;
  2. The permissibility of relying on evidence obtained by torture in Egypt;
  3. The correct test for determining whether a person meets the criteria for inclusion on the list;
  4. The source and nature of the UK’s powers to take action before the UN Security Council directed at a specific individual; and
  5. The application of Article 103 of the United Nations Charter against Human Rights Act claims in the UK.

Factual background

The appellant, Hany Youssef, is an Egyptian national who claimed asylum in the UK in May 1994 on the ground that he had been harassed and tortured by the Egyptian Security Forces. In September 1998, the appellant was arrested and his application for refugee status rejected following the finding that he was a senior member of the terrorist group Egyptian Islamic Jihad. During the appellant’s detention, the Foreign Office took action to deport him to Egypt on the condition that the appellant would not be tortured or otherwise physically mistreated by the Egyptian government. In April 1999, the appellant was sentenced in absentia by an Egyptian military court to life imprisonment with hard labour. However, prior to his deportation, evidence came to light in asylum proceedings which suggested that the proceedings against the appellant in the military court were unfair, that the testimony before it was probably obtained by torture and that no credence should be given to the convictions in that trial. Consequently, the appellant was released without charge in July 1999 after the Foreign Secretary had concluded that there was no realistic prospect that assurances might be obtained or therefore that the appellant might lawfully be removed to Egypt.

In March 2005 a State requested that the appellant’s name be added to the Consolidated List. Following the Foreign Secretary’s consideration, it was deemed that the appellant met the criteria for designation and should be included on the Consolidated List. It should be noted that since 2009, the UK has made several unsuccessful applications to the Sanctions Committee to de-list the appellant.

The appellant’s name was added to the Consolidated List in 2005, and since 2009, the Foreign Secretary has made successive unsuccessful attempts to de-list the appellant. In 2010, the appellant’s solicitors wrote to the European Commission asking that his name be removed from Annex 1 to Regulation 881/2002, which in effect mirrors the Consolidated List. The Commission has responded to the appellant’s request by opening discussions with the Sanctions Committee.

On 23 July 2012, the Divisional Court dismissed the appellant’s claim for judicial review of the Foreign Secretary’s decision to allow his name to be added to the Consolidated List.

Grounds for appeal

In the Court of Appeal, the appellant contended that the decision to include his name on the Consolidated List was unlawful on the following grounds:

  1. The correct standard of review of the decision is review on the merits rather than the conventional rationality test (Wednesbury [1948] 1 KB 223); and had that standard been applied, the Foreign Secretary’s decision to keep the appellant on the List would be deemed irrational;
  2. The appellant’s designation had been proposed for reasons which rested on evidence obtained by torture in Egypt; and in those circumstances it was the Foreign Secretary’s duty to prevent the designation; and
  3. The Foreign Secretary had supported the designation because he determined that there were reasonable grounds to suspect that the appellant met the criteria for designation; but the correct legal test is whether there was actual proof that the criteria for designation were in fact met.

Reasons for dismissing the appeal:

Maurice Kay LJ and Sullivan LJ agreed with Laws LJ in dismissing the appeal.

Ground 1 – what was the correct standard of review of the decision, review on the merits or the conventional rationality test?

In answer to this question, the Court of Appeal held that a merits judgement in a judicial review case only arises when it is required to test the legality of the decision under review. For example, in cases where the primary decision maker’s jurisdiction depends upon proof of a precedent fact and in cases where the law requires a decision to be reasonable and proportionate to a legitimate aim. The Court of Appeal held that a review on the merits is not the correct standard of review as there was no question of precedent fact or proportionality as the European Convention on Human Rights does not have jurisdiction and because the Foreign Secretary was not required to exercise a discretionary judgement.

Ground 2 – did the Foreign Secretary, who had knowledge that the evidence presented to the Committee was obtained by torture, lawfully decide to support the designation of the appellant? The appellant claimed that the nature of the prohibition of torture by international law, being ius cogens erga omnes, required the Foreign Secretary to object to the listing. The Court of Appeal dismissed this submission and held that the status of ius cogens erga omnes “empowers but does not oblige” a state to intervene with another to insist on respect for the prohibition of torture.

Ground 3 – was it legally correct to apply a test of reasonable suspicion? The issue is that the Foreign Secretary was acting by authority of the Royal Prerogative, and a judicial review of Prerogative power is based entirely on standards such as reason and fairness. Therefore the Foreign Secretary had to satisfy the Court of Appeal that he reached his decision conformably with the Consolidated List regime. The Court of Appeal held that a reasonable suspicion test is the correct legal test to apply as it more effectively promotes the aim of the Consolidated List regime, which is to prevent terrorism by reducing the risk that succour will be given to terrorists.

The UKSC Appeal

The appeal will be heard on 18 and 19 November 2015 by a panel of five comprising Lord Neuberger, Lord Mance, Lord Wilson, Lord Sumption and Lord Carnwath. A full case comment on the decision will be provided on this blog once judgment has been handed down.