Public Law Advent Calendar #1: Shvidler v Secretary of State for Foreign, Commonwealth & Development Affairs

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Shvidler v Secretary of State for Foreign, Commonwealth & Development Affairs [2025] UKSC 30

Looking for an instant classic Supreme Court judgment, a one-stop shop for how to approach a critically important but hitherto discordant area of the law? Your search is over.

The stakes could not have been higher for Mr Shvidler. He had been made subject to sanctions following the Secretary of State’s decision to designate him, shortly after Russia’s invasion of Ukraine, pursuant to the Russia (Sanctions) (EU Exit) Regulations 2019 (SI 2019/855). Mr Shvidler’s worldwide assets were frozen and, subject to a few exceptions, it became a criminal offence for other people to deal with him in either a private or commercial capacity. The High Court and Court of Appeal had rejected his attempts to overturn the SS’s decision.

And the case turned on a critically important legal point: what is the role of the Court (both at first instance and on appeal) in reviewing the proportionality of a decision that involves an interference with an A1P1 right?

The Court’s decision on both of these issues was unanimous, although Lord Leggatt dissented with regard to the lawfulness of the Secretary of State’s decision to designate Mr Shvidler. Critically, the judgment explains:

• The Court has to make its own assessment of proportionality; if a measure is not proportionate to a legitimate aim it will be unlawful. However, the Court does not become the primary decision maker on this issue ‘in the full sense of that term’. The court will have regard to and may afford a measure of respect to the balance of rights and interests struck by the public authority in assessing whether the stage (iv) ‘fair balance’ test is satisfied (see e.g. Re JR123 [2025] UKSC 8 at [41]), and it will not treat itself as bound by the decision of the public authority subject only to review according to the rationality standard. Accordingly, there is room for appropriate respect and weight to be given to the views of the executive or the legislature as to how the balance between the interests of the individual and of the general community should be struck, depending on the nature of those respective interests: see judgment at paras [120] – [125].

• The Court set out two options that an Appellate court may take;

‘The review approach’: a review to check whether the first instance court’s assessment in relation to the proportionality of a measure was arrived at on the basis of a proper self-direction as to the test to be applied and whether the result arrived at was reasonable, in the sense of being within the legitimate parameters of judgment for the judge. This approach focuses on the dispute-resolution effect of the first instance judgment on a determination of the facts, militates against repetition of arguments up through the legal system by the loser seeking without sufficient reason to have a second bite at the cherry, and protects appellate courts from being over-burdened by appeals; and

‘The fresh decision approach’: a fresh assessment of the proportionality of the measure in question. This approach gives priority to the authority vested in the appellate court to decide and give guidance on legal questions.

• The Court stressed that either approach may be appropriate, depending on the circumstances. The Court gave as paradigm examples of each approach:
• For the ‘review approach’: a one-off decision of a judge or an official which depends entirely on the application of well-established law and principles to the facts of the individual case.

For the ‘fresh decision approach’: a case involving the first consideration at appellate level of a new legislative regime of general application, especially one with considerable significance for society. Plainly, the parties will need to make submissions on the correct approach if it cannot be agreed.

Finally, those of a nervous disposition might want to avoid Lord Leggatt’s dissection of the witness evidence relied upon by the Secretary of State to explain the designation decision (see paras 263ff). Although forming part of his dissenting judgment, it serves as an important reminder of the potential for judicial displeasure where the evidence given to justify a decision-maker’s thinking is not seen to stack up.

This article was written by Rob Walton KC.