Last updated: 14 Jul 2025 08:30 Posted in: AIA
Roger Gherson and Caroline Black ask whether the UK sanctions regime is fit for purpose.
The Sanctions and Anti-Money Laundering Act (SAMLA) 2018 provides the legal basis for imposing autonomous sanctions in the UK post-Brexit. Under SAMLA 2018, the UK can levy sanctions for a number of purposes, including in relation to serious threats to national security, human rights violations and corruption.
As recently highlighted in the House of Commons debate by Stephen Doughty MP, the Minister of State for the Foreign Commonwealth Development Office, the government places great weight on the use of sanctions in the context of security, international law and diplomacy: ‘Sanctions are a powerful tool in our armoury. They play an important part in promoting peace and security abroad, upholding international rules and norms, and protecting our citizens at home.’
However, international law cuts both ways, providing individuals with rights of natural justice, rule of law and due process. And while the UK sanctions regime is theoretically based on the rule of law, numerous criticisms can be made due to its lack of fairness and due process, particularly in respect of designations made under the Global Anti-Corruption Sanctions Regulations (Regulations) 2001 (GASCR 2001).
What are sanctions?
In the UK, under the Sanctions and Anti-Money Laundering Act (SAMLA) 2018, sanctions are restrictive measures, primarily economic and trade-related, that the UK government can impose to achieve specific foreign policy or national security objectives. They can be applied to individuals, entities or countries.
SAMLA 2018 allows for a wide range of restrictive measures, including trade sanctions and travel bans. Financial sanctions involve freezing assets, restricting financial transactions, and preventing access to certain funds.
The threshold for designation in the UK under the GACSR, is that the Secretary of State for Foreign, Commonwealth and Development Affairs must have a reasonable suspicion of involvement in serious corruption. Any challenge can only focus on the reasonableness of the decision-making process via administrative review and judicial review procedures.
In contrast in the EU, designation is only taken by a unanimous decision of the 27 member states. Further, the Court of Justice of the European Union through its decades of case law, has held that evidence relied upon must be concrete, verifiable and specific.
Due process and procedural failings
Several key failings stand out:
Presumption of innocence
The presumption of innocence and burden of proof in English Law goes back hundreds of years, finding its origins in Christian theology, ‘wherein convicting an innocent person was regarded as a mortal sin’. In the case of Woolmington v DPP [1935] 1 AC 462, Viscount Sankey famously summarised the importance of the doctrine: ‘Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.’
However, this ‘golden thread’ of the presumption of innocence appears to be broken when it comes to sanctions designation decisions, when an individual can be publicly labelled as ‘corrupt’ with little persuasive evidence and certainly evidence falling well short of proof ‘beyond reasonable doubt’ following a contested trial.
The Regulations provide that a political appointee (the Secretary of State) may designate an individual as ‘corrupt’ and apply an asset freeze and immigration-related travel restrictions on the sole basis that there are ‘reasonable grounds to suspect’ that a person is or has been involved in serious corruption. (Under Reg 4(2), corruption means bribery or misappropriation of property.) Moreover, the Regulations give the widest possible scope for what is meant by serious corruption. It is enough if there are reasonable grounds to suspect that the person:
Under Reg 6(3), a person is defined as being involved in serious corruption if the individual:
This very wide definition, coupled with the very low bar of reasonable suspicion, makes challenges difficult. Individuals face an uphill battle as decisions often appear to be based on little more than accusations of corruption, without clear or accessible supporting evidence.
Lack of disclosure and transparency in the decision-making process
The lack of disclosure and accessibility is a key failing of the regime. Unlike criminal law, which requires clear evidence and judicial oversight before a person is convicted, sanctions can be imposed based on intelligence and press articles. This is especially concerning in cases of corruption, where allegations are criminal and may be based on vague or incomplete information and unreliable media reports generated by local political rivals.
By contrast, in civil asset freezing cases in the High Court, an applicant for a restraint or freezing order has high duties of candour and disclosure, going far beyond those associated with the sanctions regime. An independent judge must be satisfied that an order should be granted prior to its implementation.
Under the Regulation, the freezing of assets and all the associated adverse effects can be affected by the will of the Foreign Secretary and officials at the Foreign, Commonwealth and Development Office (FCDO). There is no court involvement at the designation stage, and nowhere near the same level of open disclosure and scrutiny of the designation process.
This lack of transparency not only creates a situation where individuals are unable to effectively challenge the decision in a meaningful way but also undermines the credibility of the sanctions regime itself.
Limited right to challenge sanctions
Sanctions are routinely imposed on an ex‑parte basis (in a legal context, this means ‘on one side only’, describing legal proceedings or communications that occur without the knowledge or participation of the other parties involved). They can proceed without any formal hearing or independent review, meaning that the affected party does not have an opportunity to challenge the evidence or decision-making process before it is implemented.
The UK courts do provide some procedural safeguards, including the right to an open hearing based on judicial review principles where possible. However, the fact remains that the legal tools available to challenge sanctions are inadequate for ensuring robust due process, particularly when it involves opaque corruption allegations.
Under SAMLA 2018 s 23, an initial challenge must be made to the FCDO. This effectively means a review is to be undertaken by the Secretary of State of their own decision. Little wonder that the prospects of success at this stage are extremely low.
Having exhausted the s 23 route, a further challenge may be made under s 38 using judicial review principles. However, there is limited ability to challenge the substance of any allegations of corruption, particularly when it comes to national security or intelligence considerations.
If mounted in criminal, proceeds of crime or civil recovery proceedings, the making of such corruption allegations could be properly challenged in court in open proceedings. Not so under the Regulations, when designation can only be challenged after the event, only on the grounds of irrationality, and only once an entirely pointless appeal to the government department itself has been rejected.
Risk of arbitrary designations and inconsistent application
Another key concern is the risk of arbitrary and inconsistent designation. This is especially acute where sanctions are based on politically sensitive or complex corruption cases. The use of corruption as a justification for imposing sanctions can lead to disproportionate or politically motivated actions, with little meaningful recourse for the targeted individuals.
Without clear guidelines and an effective mechanism for independent oversight, sanctions can be used selectively, potentially punishing individuals based on their political affiliations or national origin rather than objective legal grounds.
While the UK government has taken significant steps to target individuals involved in corruption within specific countries, there are concerns about the selective enforcement of sanctions. For example, some individuals linked to high-profile corruption cases avoid sanctions, despite credible evidence of corruption, whereas others are seemingly unfairly targeted without sufficient due process protections. This inconsistency undermines the fairness and credibility of the entire corruption sanctions regime.
Adverse effects of designation: human rights and access to property
The imposition of sanctions has significant consequences for the rights of those affected, particularly in relation to their right to property, freedom of movement, and livelihood. In particular concerns are raised of compatibility of the regime with:
Designation under the Regulations has the practical impact of an individual being publicly named as a criminal, having assets frozen and travel restrictions imposed. Even assets held outside the UK are likely to be impacted, as the individual faces difficulty in accessing global financial markets and products.
Being designated as ‘corrupt’ also has profound implications for ongoing business, relationships and family life.
Recommendations
In order to better protect due process and the rule of law in the UK sanctions regime, the following additional measures should be considered:
Greater transparency in decision making: Individuals and entities subject to sanctions should be given full and frank disclosure of the reasons for their designation, accompanied by full access to all evidence underlying the decision. The government should also establish clear, accessible procedures for substantively challenging sanctions designation.
Independent review mechanism: An independent review body (such as an ombudsman or a tribunal) should be constituted to have oversight of decisions, with full access to evidence, in order to assess the fairness and legality of sanctions decisions before they are applied.
Clearer criteria for designation: The presumption of innocence must run through the regime. The government should adopt clearer standards for evidence, proportionality and temporal limits on sanctions. This would help to balance the need for effective policy with the protection of individual rights.
Enhanced safeguards and access to courts for individuals facing sanctions: Sanctioned individuals should be afforded the ability to appeal sanctions through a mechanism that ensures their rights are protected. This could include interim relief or a right of substantive appeal in the courts (not limited to judicial review proceedings), even when national security concerns are raised.
In conclusion
The UK’s post-Brexit sanctions regime lacks key procedural safeguards, exposing individuals to potentially arbitrary state action without adequate recourse. The combination of opaque ministerial discretion, limited judicial review and exclusionary procedures falls short of the UK’s common law traditions and human rights obligations. Reform is urgently required to restore balance and credibility to the UK sanctions process.
Author bio
Roger Gherson founded Gherson Solicitors in 1988. He has dedicated himself to advising, assisting and defending individuals requiring international protection.
Caroline Black is a consultant at Gherson Solicitors LLP.
