Actions Speak Louder Than Words ' How Deferential Will The Courts Really Be To Sanctions Decisions Made By The Government?

• Published date: 08 September 2023
• Subject Matter: International Law, Strategy, Export Controls & Trade & Investment Sanctions, Government Policy & Public Finance
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar, Susannah Cogman and Jasveer Randhawa

In Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] EWHC 2121 (Admin), the High Court commented that questions of evidence concerning designating specific individuals under the sanctions regime were not entirely questions of foreign policy on which the court is unqualified to form a view, nor a subject on which the court should necessarily be slow to interfere on grounds of institutional competence. Nonetheless, the court went on to dismiss the challenge to the claimant's designation.

Key Points

• Matters relating to foreign policy and national security will often attract the broadest margin of discretion for the executive However, the court must consider closely the particular question that falls for decision so as to gauge the extent to which it should defer to the expertise of the Secretary of State and the extent to which it can itself form a judgment.
• Whether the evidence supports the contention that designation could contribute to achieving relevant objectives is not entirely a question of foreign policy on which the court is unqualified to form a view, nor is it a subject on which the court should necessarily be slow to interfere on grounds of institutional competence.
• Ultimately the executive remains best placed to assess the effectiveness and appropriateness of different methods of achieving its objectives and the court will be reluctant to second guess those decisions.

Background

The claimant, a British citizen, challenged decisions of the Foreign Secretary to "designate" him as being subject to an asset freeze under the sanctions regime which addresses the Russian invasion of Ukraine: the Russia (Sanctions) (EU Exit) Regulations 2019 (the "2019 Regulations"), made under s1 of the Sanctions and Anti-Money Laundering Act 2018 ("SAMLA"). SAMLA ss38-40 provide for court review of, inter alia, designation decisions, and in determining whether a decision should be set aside, the court is required to apply the principles applicable on an application for judicial review.

There were two bases for the claimant's designation:

i) there are reasonable grounds to suspect that the claimant is associated with a person (Mr Roman Abramovich, who was himself designated last year) who is, or has been, involved in obtaining a benefit from, or supporting, the Government of Russia; and

ii) there are reasonable grounds to suspect that the claimant himself is, or has been, involved in obtaining a benefit from, or supporting, the...