BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Naasani & Ors, R (On the Application Of) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 2827 (Admin) (07 November 2024) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2024/2827.html Cite as: [2024] EWHC 2827 (Admin), [2024] WLR(D) 485 |
||
[New search] [Printable PDF version] [View ICLR summary: [2024] WLR(D) 485] [Help]
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| THE KING on the application of (1) DR IMAD NAASANI (2) DR MOHAMAD BASHIR (3) MR JAAFAR MUSTAFA |
Claimants |
|
| - and - |
||
| SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS |
Defendant |
____________________
Malcolm Birdling (instructed by GLD) for the Defendant
Hearing date: 28 October 2024
Further submissions: 29 October 2024
Draft judgment to parties: 31 October 2024
____________________
Crown Copyright ©
This judgment was handed down remotely at 2:00pm on 07 November 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Justice Foxton :
i) to remit money to or receive remittances from close family members in Syria ("the Remittances Ground"); and
ii) to send correspondence to and receive correspondence from Syria ("the Correspondence Ground").
The background
"… to ensure that the UK can operate an effective sanctions regime in relation to Syria after the UK leaves the EU. When these Regulations come into force they will replace, with substantially the same effect, the EU sanctions regime relating to Syria that is currently in force under EU legislation and related UK regulations. This sanctions regime is aimed at encouraging the Syrian regime to end the violent repression of the civilian population and to reach a negotiated political settlement to end the conflict in Syria."
(Explanatory Memorandum to the Syrian (Sanctions) SI No. 2019 No. 792, paragraph 2.1).
i) Regulation 5(1)(a) of the Syria Regulations confers on the Secretary of State power to designate persons by name for the purposes of Regulations 11 to 15, which contain asset freezing restrictions. Since 31 December 2020, eight Syrian banks (including the Central Bank of Syria) have been designated by the Secretary of State by name under Regulation 5(1)(a) for the purpose of asset freezing restrictions on the basis that there are reasonable grounds to suspect that they are or have been involved in supporting the Syrian regime.
ii) Regulation 12(1) of the Syria Regulations prohibits making funds available directly or indirectly to a designated person. Breach of this prohibition is an offence (Regulation 12(3)). The prohibition is subject to Part 7 of the Regulations, which contains provisions for exceptions and licences. Regulation 55 contains certain exceptions, and Regulation 61(1) provides that the prohibition in Regulation 12 does not apply to anything done under the authority of a Treasury licence.
iii) Regulation 16(1)(b) provides that a UK credit or financial institution must not establish a new correspondent banking relationship with a credit or financial institution domiciled in Syria (although this does not affect existing correspondent banking relationships), a branch or subsidiary, wherever located, of such an institution, or a credit or financial institution owned or controlled directly or indirectly by a person domiciled in Syria. Correspondent banking services include international funds transfers, cheque clearing and foreign exchange services. Breach of the prohibition is an offence: Regulation 16(6).
iv) UK credit and financial institutions are also prohibited from opening a bank account with a Syrian credit or financial institution (Regulation16(1)(a)) and from opening a representative office, or branch or subsidiary in Syria (Regulation 16(3)). These prohibitions are subject to Part 7 of the Syria Regulations (Regulation 16(4)). In particular, HM Treasury may grant an individual licence authorising conduct otherwise prohibited by Regulations 16(1)(a) or (3) only "for the purpose of providing assistance to the civilian population in Syria" (Regulation 61(2)(b) of, and paragraph 17(1) of Schedule 6 to the Syria Regulations).
i) A declaration was sought that the Syria Regulations were unlawful and inconsistent with the UK's domestic and international law obligations.
ii) A declaration was sought that the Syria Regulations breached the Claimants' ECHR rights.
iii) It was alleged that the Syria Regulations unlawfully interfered with the Claimants' Article 8 Convention rights because (a) they were prevented from travelling to and from Syria due to Syrian Arab Airlines being prevented from flying to the UK; (b) the Claimants were prevented from financially supporting their families in Syria by remitting money there; and (c) the Syria Regulations "terminated all correspondences" such that the Claimants could not send books, packages or items through the post to Syria.
iv) It was alleged that the Syria Regulations breached domestic and international criminal law, constituted crimes against humanity, and amounted to support for "genocide" and "terrorism".
i) It was said not to be arguable that Article 8 conferred a right to transfer funds between family members or any obligation on Contracting Parties to ensure direct flights or postal services were available.
ii) It submitted that it was not arguable that the Syria Regulations amounted to crimes against humanity or support for genocide or terrorism.
i) He refused permission for all general grounds relating to the making and maintaining of the Syria Regulations as a whole and to general or specific civilians as breaches of international law because these grounds were not properly arguable ([6]).
ii) It was not realistic that the Syria Regulations involved perpetrating terrorism or a breach of international law ([8]-[9]) or of international criminal law ([16]).
iii) The challenge to the fact that the Syria Regulations prohibited certain direct flights between the UK and Syria had no realistic prospect of success ([14]).
iv) He held that two "narrow HRA grounds" were arguable, namely the alleged Article 8(1) and A1P1 breaches relating to (i) transferring money (remittances) and (ii) sending letters between the UK and Syria (correspondence) ([16]).
"Further to my previous email, we have not been able to conclusively determine whether at any time [Royal Mail Group] were aware (or should have been aware) of the route via Jordan, nor is it clear whether this remains a viable route. The IB Circular 126 (15.07.2013) provides an explanation as to why services were suspended back in 2012. We have not discovered anything to suggest the rationale was influenced by the sanctions position of the UK government."
The Applicable Legal Principles
i) Article 8:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
ii) A1P1 which provide:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
i) the ability to send remittances to or receive them from close relatives is "intimately connected" with the "material aspects" of family life (cf Merger and Cros v France (2006) 43 EHRR 51 at [46]) and engaged A1P1;
ii) that any ability to send and receive correspondence from close family members is capable in some circumstances of engaging Article 8 (although it is not accepted that such circumstances arise in this case).
i) First, the need for interference to be "in accordance with the law" requires not simply that the interference has a basis in domestic law (in the case of the Syria Regulations, the 2018 Act)) but also has substantive content, requiring the law to be sufficiently clear and accessible (Malone v United Kingdom (1984) 7 EHRR 14). This aspect of Article 8(2) is most commonly litigated when the measure in issue accords a discretion to a particular public authority to take decisions which interfere with the Article 8(1) right.
ii) Second, the need for the interference to be in pursuit of one of the identified legitimate aims. The ECHR has noted that "in most cases" the Court "will deal quite summarily with the question of the existence of a legitimate aim within the meaning of the second paragrap[h] of Articl[e] 8", because the aims are "broadly defined and have been interpreted with a degree of flexibility" and so "[t]he real focus of the Court's scrutiny has rather been on the ensuing and closely connected issue: whether the restriction is necessary or justified": LB v Hungary (2023) 77 EHRR 1, [108]-[109].
iii) Third, the need for the interference to be "necessary in a democratic society", for which purpose it must be in pursuit of a "pressing social need", justified by "relevant and sufficient" reasons "adduced by the national authorities", and "proportionate to the legitimate aim pursued" (LB v Hungary, [115]).
"It is necessary to determine: (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right; (2) whether the measure is rationally connected to the objective; (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and (4) whether the measure's contribution to the objective outweighs the effects on the rights of those to whom it applies."
"Various expressions have been used in the case law to describe the quality of the judicial scrutiny called for when considering the proportionality of an interference with a Convention right: 'heightened', 'anxious', 'exacting', and so on. These expressions are necessarily imprecise because their practical effect will depend on the context. In particular, it will depend on the significance of the right, the degree to which it is interfered with, and the range of factors capable of justifying that interference, which may vary from none at all ( article 3 ) to very wide ranging considerations indeed: article 8 . But the legal principle is clear enough. The court must test the adequacy of the factual basis claimed for the decision: is it sufficiently robust having regard to the interference with Convention rights which is involved? It must consider whether the professed objective can be said to be necessary, in the sense that it reflects a pressing social need. It must review the rationality of the supposed connection between the objective and the means employed: is it capable of contributing systematically to the desired objective, or its impact on the objective arbitrary? The court must consider whether some less onerous alternative would have been available without unreasonably impairing the objective. The court is the ultimate arbiter of the appropriate balance between two incommensurate values: the Convention rights engaged and the interests of the community relied on to justify interfering with it. But the court is not usually concerned with remaking the decision-maker's assessment of the evidence if it was an assessment reasonably open to her. Nor, on a matter dependent on a judgment capable of yielding more than one answer, is the court concerned with remaking the judgment of the decision-maker about the relative advantages and disadvantages of the course selected, or of pure policy choices (e.g. do we wish to engage with Iran at all?). The court does not make the substantive decision in place of the executive. On all of these matters, in determining what weight to give to the evidence, the court is entitled to attach special weight to the judgments and assessments of a primary decision-maker with special institutional competence."
"(1) '[A] state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases' (para 106).
(2) The European court attaches particular importance to 'The quality of the parliamentary and judicial review of the necessity of the measure' (para 108). In that regard, the court made clear at paras 115–116 the importance which it attaches to judicial consideration of proportionality issues in the light of the Convention case law.
(3) 'It is also relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the state to assess' (para 108).
(4) 'A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty, of litigation, expense and delay as well as of discrimination and arbitrariness' (para 108).
(5) '[The] more convincing the general justifications for the general measure are, the less importance the [European] court will attach to its impact in the particular case' (para 109).
(6) 'The central question as regards such measures is not … whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it' (para 110)."
The Remittances Ground
i) The Syria Regulations were not "in accordance with the law".
ii) The Syria Regulations do not pursue a legitimate aim, are not rationally connected to their stated objectives and are not necessary in a democratic society.
iii) The Syria Regulations have the effect of imposing a "total ban" on the Claimants' ability to transfer money between the UK and Syria, in breach of the Claimants' rights under Article 8 and A1P1.
iv) A less intrusive measure could have been used.
v) The Claimants have had to bear a disproportionate and excessive burden as a result of the Syria Regulations' effect on them.
i) The power to designate persons conferred by the Syria Regulations on the Secretary of State identifies in clear terms the purposes for which such a designation may be made and the designation criteria, and provides for the notification and publication of any designation decision. It also clearly states what the consequences of designation are. The position is essentially the same as that considered by Johnson J in relation to the Russia (Sanctions) (EU Exit) Regulations 2019 in his impressive judgment in Phillips v Secretary of State for Foreign , Commonwealth and Development Affairs [2024] EWHC 32 (Admin), [141]-[144].
ii) The sectoral and specific activity sanctions are similarly expressed in clearly defined terms.
iii) The Syria Regulations provide for exceptions and licences (Part 7) and the 2018 Act confers a power to revoke or vary designation (s.22), provides a right to request revocation or variation (ss.23, 25-27, 29) and provides means to challenge the Regulations or their application before a court of law (s.38).
i) Mennesson v France App No 65192/11, ECHR 26 September 2014 , [62] (holding that the protection of the rights and freedoms of surrogate mothers outside France constituted "protection of the rights and freedoms of others" for Article 8(2) purposes).
ii) Colombani v France App No 51279/99, ECHR 25 June 2002, [62] (holding that protection of the reputation of a foreign head of state was capable of constituting "protection of the reputation and rights of others" for Article 10 purposes).
i) The FCDO advice to the Minister of 1 February 2024 addressed the issue of whether it would be possible to replace the existing sanctions regime by which individual licenses could be sought from the Office for Sanctions Implementation either with a general licence for the use of the retail services of designated banks to make low value payments, or an exemption from the scope of the Syria Regulations for such transactions.
ii) The FCDO concluded that it was unclear whether adopting either of these measures would have any practical effect, given the many other factors apart from the Syria Regulations which made it extremely difficult for remittances to pass between non-designated persons in Syria and persons in the UK.
iii) By contrast, the FCDO concluded that taking these steps would create risks (albeit small ones) of (i) cash remittances being appropriated by the Syrian government, against a background of a number of Syrian Presidential Decrees banning the handling of foreign currency and (ii) an opportunity for the Central Bank of Syria to profit from foreign currency inflows.
i) The Syria Regulations involve a relatively limited restriction on the Claimants' A1P1 rights, as they remain free otherwise to use their property (whether in Syria or in the UK) in such lawful manner as they wish. Similarly, to the extent that there is an interference with the Claimants' Article 8 right, the ability to transfer funds between family members is a relatively narrow and limited part of the right to family life.
ii) In this regard, I should deal with the Claimants' submission that their assets in Syria have effectively been frozen, and their reliance in this context on the decision of the CJEU in European Commission v Kadi EU-T:2010:418 (General Court); EU-C:2013:518 (Grand Chambers). That case involved the successful challenge to a regulation freezing Mr Kadi's assets, largely on due process grounds. In any event, the order in Kadi froze all of Mr Kadi's funds, with very limited exceptions as regards food, medical expenses and reasonable legal fees provided there was prior notification to the Sanctions Committee. In the present case, by contrast, the Syria Regulations do not restrict the use to which the Claimants' assets (whether in the UK or Syria) may be put, save that they cannot be paid to designated persons, and the practical effect of the Syrian Regulations, in combination with other factors, is to seriously interfere with the movement of funds in one particular manner, namely between Syria and the UK, but not otherwise.
iii) The Syria Regulations are only one of a number of factors which have combined to give rise to a serious interference in the Claimants' ability to make remittances to or receive them from family members in Syria.
iv) The restrictions are temporary in nature, and to the extent that they have the practical effect of preventing remittances while in force, those same remittances could be made if the restrictions were removed and the effect ceased (although I accept that the inability to use money which would otherwise have been remitted during the intervening period is irreversible).
v) There is a power, which on the evidence before me and which I accept is kept under review, to issue a general licence, and individuals may apply under Regulation 12 to HM Treasury for individual licences to conduct certain types of transactions which would otherwise be prohibited. Such licences may be granted for a number of purposes, including to enable anything to be done (i) in connection with the performance of any humanitarian assistance activity; (ii) to protect the safety of individuals; (iii) in order to evacuate an individual from Syria; and (iv) to deal with an extraordinary situation.
vi) Having regard to all of these matters, I am satisfied that the contribution of the relevant features of the Syria Regulations to the objective is sufficient to outweigh the limited interference the Regulations have caused to the Claimants' Convention rights. I have attached particular weight in this context to the fact that the balancing exercise involves questions of foreign policy on which the Secretary of State's assessment as to the appropriate response should be given special weight, and that the judgement to maintain the Syria Regulations in force in their present form, and the balance struck by them, is within the Secretary of State's special institutional competence.
i) The evidence of the Secretary of State's legitimate aim or objective in making the Syria Regulations is clear, and has been set out at [39]-[47] above.
ii) The Secretary of State was not required, prior to enacting the Syria Regulations to consider every conceivable effect they might have.
iii) In assessing the issue of proportionality, the court is not limited to assessing the decision-maker's process, thinking or assessment at the time the relevant decision was made. As Lord Hoffmann noted in Belfast City Council v Miss Behavin' Limited [2007] 1 WLR 1420, [12]-[13]:
"This approach seems to me not only contrary to the reasoning in the recent decision of this House in R (SB) v Governors of Denbigh High School [2007] 1 AC 100 but quite impractical… Either the refusal infringed the applicants' Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol."
iv) In any event, as the Court of Appeal noted in Dalston at [208]:
"The difficulty with this line of argument is that … the proportionality assessment required by the court is not concerned with the decision-making process by the Secretary of State. It is a question of substance for the court to decide in the light of all the material before it."
That material includes evidence as to the subsequent consideration of these points by the FCDO and the Secretary of State, with the benefit of their special institutional competence and following further enquiries. I am satisfied that these views reflect a conscientious and good faith consideration of the issues, rather than a formalistic attempt to justify an earlier decision. There is evidence of extensive efforts to obtain the views of third parties, including the City UK and UK Finance. I find those subsequent assessments persuasive.
The Correspondence Ground
i) The Syria Regulations have had the effect of imposing a "total ban" on postal services between Syria and the UK, in breach of the Claimants' Article 8 rights.
ii) The interference does not pursue a legitimate aim, is not in accordance with the law and is not necessary in a democratic society.
iii) A less restrictive measure could have been used.
iv) The Secretary of State has failed to comply with its positive obligation to take steps to facilitate a postal service between the UK and Syria.
i) The restrictions on postal correspondence in the Syria Regulations to which the court's attention has been drawn are very narrow and specific.
ii) On 31 October 2023, the FCDO contacted Royal Mail to ask if it was currently providing postal services to Syria and, in effect, if not why not. In response on the same day, Royal Mail stated that the service had been suspended in 2012, but further enquiries were being made as to why the service remained suspended.
iii) On 1 November 2023, the FCDO sent a further email to Royal Mail asking about the postal service to Syria and stating, "I should add that FCDO is not suggesting that RM considers restarting services, that is a question for RM. Our interest is if the continued suspension of service is the result of the UK's Syria sanctions regime; operational/logistical factors; or some other reason". The Claimants were critical of the terms of this communication, but I am satisfied that they were wholly appropriate. The FCDO does not have relevant regulatory authority over Royal Mail, and it was not for FCDO to seek to influence how Royal Mail operated.
iv) By reply the same day, Royal Mail stated that postal services to Syria were suspended on 6 December 2012 because of the escalating political difficulties there, their impact on operations and the absence of direct or transit routes, and not because of sanctions imposed on Syria by the UK Government. The same email stated that Royal Mail had "received very few enquiries around re-establishing a service to Syria, which suggests there is very little demand from both social and business customers."
v) On 30 December 2023, Royal Mail informed Dr Naasani that "due to ongoing issues in Syria, we are unable to provide a reliable postal service and therefore at this time our services remain suspended."
vi) On 15 January 2024, Royal Mail provided an update to the FCDO confirming their earlier explanation but stating that the Post Office and Royal Mail were now two separate entities. The Post Office had been contacted by Royal Mail and confirmed that the information available to the Post Office is to the effect that suspension of mail services to Syria is due to the political situation in Syria and not on account of the Syria Regulations.
vii) On 30 December 2023, Royal Mail informed Dr Naasani that "due to the ongoing issues in Syria we are unable to provide a reliable service."
viii) On 19 June 2024, the Director of External Affairs and Policy for Royal Mail provided a response following a further query arising from the discovery of a reference to transit routes to Syria on the UPU website in 2013, stating that it was not possible to determine whether Royal Mail was aware of this statement, or whether any such route was still viable.
ix) There is no information as to why Parcelforce and DGL suspended services to Syria, but FedEx have identified US (but not UK) sanctions as a factor.
i) As noted above, Regulation 51 of the Syrian Regulations prevents aircraft operated by Syrian Arab Airlines, or owned, chartered or operated by a person connected with Syria and used exclusively for the provision of air cargo services, from landing in the UK.
ii) Dr Al-Ani accepted that the attempt at the hearing to advance the Correspondence Ground by reference to the prohibition in Regulation 51 was a new point. However, I am satisfied that the point is not open to the Claimants. Fordham J has already held that any challenge to Regulation 51 is not arguable: see [22(iii)] above.
iii) For that reason, it has not been necessary for the Secretary of State to adduce evidence as to the effect of Regulation 51 on international postage. However, such evidence as there is does not establish that the prohibition effected by Regulation 51 has had the effect of interfering with the Claimants' ability to send correspondence to and receive correspondence from Syria. Regulation 51 does not prohibit non-Syrian connected aircraft from landing, nor the sending of correspondence to Syria by indirect routes. There is evidence that the Syrian Post (the designated UPU operator for Syria) has asked the UPU to route international mail for Syria to Amman in Jordan using Royal Jordanian airline or other airlines flying to Amman, with arrangements having been made to forward the mail to Damascus. Finally, and significantly, neither Royal Mail nor the Post Office have identified the prohibition on direct Syrian Arab Airlines' flights as one of the reasons why they suspended services to Syria: see [61] above.
i) For the reasons set out above, I am satisfied that the Syria Regulations have legitimate objectives of sufficient importance to justify interference with Convention rights where the other elements of the proportionality enquiry are satisfied: see [39]-[47] above.
ii) Measures to prevent particular items being sent to Syria are rationally connected to those objectives (and are an inevitable feature of almost all sanctions regimes). For obvious reasons, the Claimants did not seek to distinguish between the various categories of goods which are subject to trade sanctions in Part 5 of the Syria Regulations, which include military goods, foreign bank notes, gold and diamonds. The report produced under s.2(4) of the 2018 Act noted that "these prohibitions serve to limit the Syrian regime's ability to function" and its "access to goods that could be used for the purposes of repressing the civilian population in Syria" as well as sending "a signal of strong condemnation."
iii) Similarly, restrictions on direct flights by the Syrian state airline or exclusively cargo carrying services by aircraft owned, operated or controlled by persons connected with Syria were capable of restricting the Syrian regime's access to the financial and logistical support provided by the national airline or a substitute, applying pressure on the Assad regime and sending a strong signal of condemnation.
iv) The Claimants have been unable to point to any less intrusive measure which could have been used without unacceptably compromising the achievement of the objectives of the Syria Regulations. In so far as it might have been said that the items sent through the post should have been exempted from Part 5, there is a long history to the use of the mail system to evade sanctions. In the Great War, searches of postal correspondence being sent to and from the Central Powers found securities, bills of exchange, bonds, rubber, revolvers, military boots and other contraband (JW Garner, International Law in the World War (1920) vol 2 p.352), with many of those items later being put on display in the British Museum and the Imperial War Museum (see Sir Frederick Pollock's footnote to The Noordam (No 2) [1919] P 255).
v) Further, advice from FCDO officials of 1 February 2024, prepared in the light of the issues raised in this challenge, considered whether any amendments should be made to the Syria Regulations to improve postal communications between the UK and Syria. The advice concluded (as I have) that the undoubted severe difficulties were not the result of the Syria Regulations but due to "operational decisions made by private postal and logistical operators in the UK." It noted that "we have not been able to identify any amendments to the Regulations which would have the effect of restoring postal services and it is not therefore obvious what steps, if any, could be taken by the Secretary of State to restore postal services." The recommendation was approved by the relevant Ministers.
vi) The Syria Regulations involve a very limited impact on a non- instantaneous means of communication, when numerous forms of instantaneous communication are available (albeit I accept that they will not provide a means of sending or receiving physical items).
vii) The case law on Article 8(1) is principally concerned with the ability to communicate and the confidentiality of communications. It is clear on the ECHR authorities that the court can have regard to the availability of alternative means of communication when a particular means is not available as a result of the acts of a public authority: Danilevich v Russia (2022) 74 EHRR 15, [50].
viii) It is not necessary to decide whether Article 8(1) embraces a right in some circumstances to send or receive physical items rather than verbal or written communications. However, the fact that, at best for the Claimants, any interference with their Article 8(1) right would concern a non-core instance of the right of communication when readily accessible and meaningful means of communication remain available supports the view that any interference in this case would be justified.
ix) In short, such limited interference with any Article 8(1) correspondence right as might be established is amply justified by the need to secure the wider objectives of the Syria Regulations, including through trade sanctions which might otherwise readily be circumvented.
i) The extent to which Article 8(1) could impose a positive obligation on a signatory state to ensure that there was a functioning international postal service between that state and every other country in the world.
ii) Whether the UPC imposes such an obligation on signatory states, and with what, if any, exceptions. For example if, as appears to be the case, force majeure might provide a legitimate reason for a designated operator not performing its UPC obligations, it could be argued that a signatory state could not be in breach for failing to require a designated operator to do that which it was excused from doing.
i) Section 29(1) of the Postal Services Act 2011 provides that OFCOM is under a duty to carry out its services in a way that it considers will secure the provision of a universal postal service.
ii) The statutory definition of a "universal postal service" includes the collection of letters and postal packets "for onwards transmission in connection with the provision of a universal postal service" including "onwards transmission outside the United Kingdom" (s.31).
iii) Those requirements do not need to be met "in such geographical conditions or other circumstances as OFCOM consider to be exceptional" (s.33(2)(b)) and s.31 does not require the continuation of a service "without interruption, suspension or restriction in an emergency."
iv) That broad structure is replicated in the Postal Services (Universal Postal Service) Order 2012 SI 2012/936.
Criminal offences
Remedies
Relief
