Dalston Projects Limited v Secretary of State for Transport and Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs

The Court’s judgment marks the first appellate consideration of the correct approach to challenges to sanctions decisions made under the post-Brexit sanctions regime. It also includes detailed analysis of the principles to be applied by an appellate court when reviewing the decision of a lower court in relation to the proportionality of an executive decision under the Human Rights Act 1998, having regard to the recent judgment of Lord Reed in In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32.

The Dalston appeal concerned the decisions of the Secretary of State for Transport first to detain and then to continue the detention of a luxury yacht (‘the Phi’) under the Russia sanctions regulations. The appellants in that case contended that the Secretary of State’s decisions were unlawful on conventional public law grounds and constituted a disproportionate interference with the appellants’ right to peaceful enjoyment of their possessions under Article 1 to the First Protocol of the European Convention on Human Rights (“A1P1”).

The Shvidler appeal concerned the decision of the Secretary of State for Foreign, Commonwealth and Development Affairs to designate the appellant, Mr Shvidler, under the Russia sanctions regulations on the grounds that: (i) Mr Shvidler was associated with a person, Mr Roman Abramovich, who is or has been involved in obtaining a benefit from, or supporting, the Government of Russia; and (ii) Mr Shvidler himself is or has been involved in obtaining a benefit from, or supporting, the Government of Russia. The appellant contended that the decision to designate him constituted a disproportionate interference with his right to private and family life under Article 8 ECHR as well as his right to peaceful of enjoyment of his possessions under A1P1.

Following a detailed consideration of the relevant principles and their application to the particular decisions in issue in each appeal, the Court of Appeal dismissed both appeals.

Sir James Eadie KC, Jason Pobjoy, and Emmeline Plews acted for the Secretary of State for Transport in the Dalston case.

Sir James Eadie KC, Jason Pobjoy and Rayan Fakhoury acted for the Secretary of State for Foreign, Commonwealth and Development Affairs in the Shvidler case.

The judgment can be accessed here.