The month of January witnessed an important UK Supreme Court decision in Youssef v Secretary of State for Foreign and Commonwealth Affairs (“Youssef”) pertaining to civil rights. It considered a range of issues, including the legality of torture-tainted evidence and proportionality claims in administrative decisions. The Supreme Court’s judgment is particularly significant because it unanimously overruled the Court of Appeal, and in doing so demonstrated a tepid response to key human rights issues in administrative decisions where terrorism-related acts are suspected.

In Youssef, the appellant was a former extremist who was ‘designated’ as a terrorist and listed on the UN sanction list. Three significant issues were submited as forming grounds for judicial review. One, it was alleged that evidence presented before the sanctions committee was obtained through torture and hence the Secretary of State for Foreign and Commonwealth Affairs (“SSFC”) erred in admitting it. Two, it was averred that appellant’s designation as a terrorist, and the consequent economic sanctions and freezing of assets, should have been made only upon substantial proof of involvement in terrorist activities and not on the mere balance of probabilities. Third, the appellant contended that the standard of review used was problematic. It was argued that the Wednesbury principle of rationality was not an appropriate standard to review the decision of SSFC, who had initially supported the appellant’s application for delisting, but subsequently retracted it. It was proposed that principles of proportionality, that is, factors necessary and expedient to achieve the preventative objective, should have informed the decision of designation.

The court refused to uphold all three arguments stating that judicial review can only be undertaken on limited grounds. Interestingly, the question of evidence obtained through torture was dealt with cautiously as the Court noted that the decision in issue had been made in exercise of prerogative powers for the conduct of foreign relations. Lord Carnwath in his opinion referred to a series of authorities, including Lord Bingham’s ruling in A v Secretary of State, to reiterate the principled objections to illegally obtained evidence. However, he observed that the responsibility to prevent illegality, in the case of torture, did not translate into an obligation to abstain from proceedings that involved tainted materials relied on by other states. It was held that the SSFC treads a difficult line of performing its diplomatic task when considering evidence presented.

The designation and resultant sanctions reveal the penal consequences of SSFC’s actions. Punitive devices like the freezing of assets have been said to be illustrative of criminal sanctions disguising as civil measures. While the latter requires a lower burden of proof, the former should be established beyond reasonable doubt. Such punitive measures have been found to have grave implications for rights and liberties of the individual targeted. Arguments were raised for the imposition of sanctions only after conclusively establishing the potential threat of the claimant. The court, nevertheless, refused to interfere with the existing discretion of the SSFC, which had decided the matter on balance of probabilities.

Arguably, courts are not expected to engage in what may be seen as a criminological enquiry of such sanctions or discretionary administrative decisions. However, the nature of sanctions in anti-terror cases has called for stricter scrutiny by courts, which ought to look beyond the superficial appearance of civil sanctions. Further, principles of fairness in anti-terror matters require adoption of proportionality, that is, whether the potential danger posed by the claimant outweighs his liberties, instead of current standards of Wednesbury reasonableness that considers the actions of SSFC independent of its consequences.

The UK Supreme Court, by condoning the arbitrary exercise of discretionary powers by the SSFC has, once again, let down expectations of the Court’s role in protecting fundamental rights. By relaxing the standard of review and standard of proof, the court has missed an opportunity to consider the multiple ways in which civil actions have been deployed to limit the liberties of terror suspects. In fact, one would argue that the court has unfairly limited the wider interpretation of ‘proportionality’ and ‘fairness’ adopted by other forums, like the European Court of Human Rights. One awaits to see if this will have any implications for the challenges that are lined up in the series of immigration related cases before the Supreme Court this year.