Dana Astra v Secretary of State for Foreign, Commonwealth and Development Affairs

The claim concerned a challenge to the Secretary of State’s decision to impose sanctions on the Claimant, a high-profile Belarusian construction company, pursuant to the Republic of Belarus (Sanctions) (EU Exit) Regulations 2019. The Claimant contended that its designation was (i) disproportionate and therefore unlawful under the Human Rights Act 1998 (“HRA”); and (ii) irrational at common law, principally on the basis that the Claimant was itself considered hostile to the Lukashenko regime, such that its designation could not rationally be said to further the objectives of the 2019 Regulations. The Secretary of State’s position was that the HRA was not engaged in circumstances where the Claimant was not a UK entity and did not have any assets within the jurisdiction, and that the designation was in any event both proportionate and rational.

The Court dismissed the claim, finding that the HRA was not engaged and that the designation was proportionate and rational in any event. The judgment is the first to consider the extraterritorial application of the European Convention on Human Rights in relation to sanctions decisions under the post-Brexit regime, and one of the few recent English judgments to consider extraterritoriality more generally. It also includes significant consideration of the relevance of allegations of arbitrariness, discrimination and retrospectivity in the context of a proportionality challenge under the HRA.

Jason Pobjoy, Rayan Fakhoury and Sean Butler acted for the Secretary of State. The judgment can be accessed here.