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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nassani & Ors, R (On the Application Of) v Secretary of State for Foreign, Commonwealth And Development Affairs [2023] EWHC 2853 (Admin) (15 November 2023) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2023/2853.html Cite as: [2023] EWHC 2853 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
B e f o r e :
____________________
| THE KING (on the application of DR IMAD NASSANI DR MOHAMAD BASHIR MR JAAFAR MUSTAFA) |
Claimants |
|
| - and - |
||
| SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS |
Defendant |
____________________
Malcolm Birdling (instructed by GLD) for the Defendant
Hearing date: 7/11/23
Confidential Draft Judgment circulated: 7/11/23
Non-Confidential Judgment Released to the Parties: 14/11/23
Finalised Judgment Handed-Down: 15/11/23
____________________
Crown Copyright ©
FORDHAM J:
Introduction
Sanctions)
(Exit) Regulations 2019 (SI 2019 No.792). The 2019 Regulations were made in the exercise of statutory powers contained in Part 1 of the
Sanctions
and Anti-Money Laundering Act 2018. They are what is known in some quarters as "autonomous
sanctions",
and in others as "unilateral
sanctions",
because they have not been imposed by the United Nations. They were preceded by an EU-wide set of similar
sanctions:
EU Regulation 36/2023 and SI 2012 No.129.
Recognizing that unilateral coercive measures in the form of economicsanctions
can have far-reaching implications for the human rights of the general population of targeted States, disproportionately affecting the poor and the most vulnerable classes.
The HRA
Witness Statements and Interveners
Issues
The General Grounds
sanctions
regulations to state their purpose or purposes (s.1(3)). These points are not, in my judgment, arguable. The purposes of the 2019 Regulations are spelled out in regulation 4 of the 2019 Regulation, compliant with the (mandatory) statutory duty to state them. The reasoned basis for concluding that these meet the conditions in s.1(2) of the 2018 Act is spelled out in the s.2(4) Report. The identification of purposes is an evaluative judgment for the Minister, as to whether it is appropriate to make regulations for the prescribed purposes, and as to what the Minister considers would be achieved or promoted (ss.1(1)(2)).
sanctions
regulations can be adopted for purposes of compliance with an "international obligation", "further prevention of terrorism", accountability for or deterrence to "gross violations of human rights", promoting compliance with "international humanitarian law" or "respect for human rights" or "international humanitarian law". I accept Dr Al-Ani's submission that it is at least arguable that
sanctions
regulations which demonstrably perpetrate the very actions against which Parliament has such regulations can permissibly protect would be ultra vires the s.1 power. But, leaving aside narrow and specific points to which I will come, I cannot accept as arguable with a realistic prospect of success that the 2019 Regulations – or their non-revocation – does perpetrate any of these.
sanctions
regimes engage such a jurisdictional reach. This is fatal to the viability of this part of the claim. I can leave aside the additional problems which could arise as to invocation of the ICCPR: see eg. R (AB) v SSJ [2021] UKSC 28 [2022] AC 487 at §§61-67.
Travel
Visas
The Arguable Grounds
Remittances
sanctions
(regulations 12 to 15) which prohibit making funds or economic resources available to or for the benefit of a designated person. There are then sectoral financial
sanctions,
in particular regulation 16 which prohibits any UK institution from opening a bank account or establishing a "correspondent banking relationship" (ie. an agency arrangement) or joint venture with a Syrian financial institution.
Correspondence
Statutory Review
Order
Application for Permission to Apply for Judicial Review. (1) Permission is granted pursuant to CPR 54.17 and PD54A §12.4(3) for Baroness Cox, Bishop Dr Rowan Williams, Peter Ford and Jonathan Steele to intervene in the proceedings in support of the claim by way of their written witness statements. (2) Permission to apply for judicial review is granted to the extent set out at paragraph 16 of the Judgment, that is in respect of the Claimants' grounds contending that they are themselves victims of violations of either Article 8 ECHR and/or Article 1 Protocol 1 ECHR by reason of their inability to (a) remit money to (or receive any remittance from) close family members in Syria and/or (b) send correspondence to Syria ("the Approved Grounds"). (3) The Claimants' claim insofar as it relates to the Approved Grounds shall proceed as an application for statutory review in accordance with section 38 of theSanctions and Anti-Money Laundering Act 2018 and the applicable provisions of CPR 79. (4) The application for judicial review in respect of the Approved Grounds shall be stayed with liberty to restore. (5) Permission to apply for judicial review is otherwise refused, and the claim (other than as it relates to the Approved Grounds) is dismissed.
Statutory Review – Case Management Directions (CPR 79.10). (6) The claim insofar as it relates to the Approved Grounds shall be listed in conjunction with Counsel's clerks for substantive hearing before a High Court Judge of the Administrative Court with a time estimate of one day (with an additional one day of judicial pre-reading) on or after 13 June 2024. (7) The Defendant shall file and serve his response to the Approved Grounds as required by CPR 79.11(1) by 4pm on 23 February 2024. (8) The Claimants shall (if advised) file and serve any application under CPR 79.11(5) by 4pm on 11 March 2024. (9) Any application filed and served in accordance with paragraph (8) shall be determined as follows: (i) The Defendant shall file and serve his response, and (if advised) any application under CPR 79.11(8), by 4pm on 25 March 2024. (ii) The application (and any application under CPR 79.11(8)) will then be placed before a Judge on 26 March 2024 (or as soon as possible thereafter) for determination in accordance with CPR 79.11(7). That determination shall be made (unless the Court directs otherwise) without a hearing. The Judge determining that application will also fix the time for the Defendant to comply with any order made under CPR 79.11(7). (10) The Claimants shall (if advised) file and serve any further evidence in respect of the Approved Grounds in accordance with CPR 79.12 by 4pm on 15 April 2024. (11) If the Claimants file and serve further evidence in accordance with paragraph (10), the Defendant shall (if advised) file and (subject to any application under CPR 79.12(3) made before that time) serve any reply evidence by 4pm on 6 May 2024. (12) The parties shall, by 4pm on 13 May 2024, agree the contents of the hearing bundle and file it with the Court. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge a hard-copy version of the hearing bundle. (13) The Claimants shall file and serve their skeleton argument no later than 21 days before the hearing date. (14) The Defendant shall file and serve their skeleton argument no later than 14 days before the hearing date. (15) The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court no later than 7 days before the hearing date.
Venue. (16) Subject to paragraph (17) the venue for the statutory review including the substantive hearing in paragraph (6) will be the Administrative Court in Manchester. (17) If so advised, the Defendant has liberty to apply in writing on notice within 7 days of this Order for transfer to London, with a further 7 days for the Claimants to respond and 3 further days for the Defendant to reply.