Syed Rahman details a case where the appellant challenged the effect of sanctions and the reasoning behind them
An appeal court ruling that the High Court was right to uphold UK sanctions against Anzhelika Khan addressed issues about the true purpose of them.
Khan, a UK national and wife of the oligarch part-owner of Russia’s largest private lender, put forward arguments in her appeal that focused on the reason for sanctions being imposed and how they affect a person’s human rights.
Her lawyers argued unsuccessfully that the Secretary of State for Foreign, Commonwealth and Development affairs should have considered whether her designation would directly affect the Russian government’s decision to continue its full-scale invasion of Ukraine.
But in the judgement, the Court of Appeal found that Khan’s lawyers were combining the purpose of sanctions with their efficacy (their ability to produce a desired effect). The Court emphasised that the law requires a discretionary power to be exercised in a manner that furthers the objects and policy of the legislation that confers it, rather than impeding or frustrating that purpose. However, it does not require an assessment of whether the specific exercise of that power is likely to achieve the statutory purpose.
Khan’s lawyers were also unsuccessful in their argument that the decision to designate her was incompatible with Article 8 of the European Convention on Human Rights, the right to respect for private and family life. The Court of Appeal judgement said that Khan’s designation was a “proportionate” interference with her rights and those of her children and that the designation was made under lawful regulations – the Russia Sanctions Regulations 2019 – which have a “rational connection with the legitimate aim which it seeks to pursue”.
Khan had gone to the appeal court to seek removal from the UK’s sanctions list after being designated for her relationship with German Khan, one of the founders of the Moscow-headquartered Alfa Group. The UK’s Foreign, Commonwealth and Development Office designated him shortly after Russia’s 2022 invasion of Ukraine, for allegedly benefiting from or supporting the Russian government through his position on Alfa Group’s board.
Effectiveness
The effectiveness of UK sanctions in pressurising a foreign government does not just depend on the breadth of sanctions; it also relies on the strength of their enforcement. While significant efforts have been made to expand the Russian sanctions regime, the impact of this has been diluted by the lack of enforcement actions.
Khan’s Article 8 argument ultimately proved unsuccessful. But the imposition of sanctions can intersect with the right to private and family life under Article 8. This right encompasses respect for an individual's private and family life, home and correspondence. Sanctions, particularly those targeting individuals, may interfere with these rights by restricting personal freedoms, impacting family relationships, and affecting one's home and financial assets.
The UK's sanctions system and judiciary have consistently dismissed challenges to delisting, which could be viewed as suggesting that political motivations may be overshadowing individual rights. A notable example is the case of Eugene Shvidler, a businessman sanctioned due to his association with Roman Abramovich. Despite arguments highlighting his British citizenship and lack of direct involvement with the Russian government, the High Court upheld his designation; emphasising the importance of foreign policy objectives over personal circumstances. The matter has gone before the Supreme Court and a judgment is pending.
There is an argument to be made that the lack of successes in challenging designations indicates a judicial reluctance to question governmental decisions on sanctions, with political agendas taking priority over fair legal processes.
