A company director wakes to find the business frozen. Bank accounts are suspended, counterparties have stopped returning calls, and a letter from His Majesty's Treasury confirms that the firm has been designated under the UK financial sanctions regime. Three time zones away, a trading partner faces the same reality under Australia's autonomous sanctions programme. Both want to challenge the designation. Both believe the criteria were not met. The procedures they face could hardly be more different.
Challenging the designation criteria under OFSI requires the designated person to engage the UK Treasury's review process, which is governed by the Sanctions and Anti-Money Laundering Act ("SAMLA") and the relevant thematic regulations, while in Australia the route runs through the Department of Foreign Affairs and Trade ("DFAT") under the Autonomous Sanctions Act and associated regulations. As of February 2026, the two regimes share a broad conceptual threshold – reasonable grounds to believe the criteria are met – but diverge sharply on evidential standards, review timelines, and the role of judicial oversight. The difference is not academic: choosing the wrong strategy, or applying a UK framework to an Australian designation, can close off routes that remain open.
This analysis compares the two regimes criterion by criterion: the legal basis for designation, the evidential and procedural requirements for a challenge, the standard of review, the role of the courts, and the practical risk flags that arise at the intersection of both regimes for businesses and individuals with cross-border exposure.
What authorises a designation, and what does that mean for a challenge?
The designation power is the starting point for any challenge, because the criteria a regulator must satisfy to list a person define the ground on which the listing can be attacked. Under SAMLA and the relevant thematic regulations, the UK Secretary of State may designate a person where there are reasonable grounds to suspect that the person is, or has been, involved in the activity targeted by the relevant sanctions programme, and that designation is appropriate. That two-limb structure matters: a challenge may attack either limb – the factual basis for the suspicion, or the proportionality of the designation itself.
Australia's Autonomous Sanctions Act vests the designation power in the Minister for Foreign Affairs, acting through regulations made under the Act. The statutory criterion is broadly equivalent: the Minister must be satisfied that the designation is appropriate having regard to the objectives of the relevant programme. In practice, DFAT applies an administrative law standard. An Australian designation can be attacked on administrative law grounds – procedural fairness, error of law, or unreasonableness – as well as on the merits of the factual assessment. That avenue is structurally different from the UK, where the primary challenge route is the Sanctions Review under SAMLA, with judicial review reserved for process failures.
The cross-border implication is direct. A person designated by both regimes simultaneously – which occurs when Australia adopts a measure aligned with the UK's own programme or introduces an autonomous listing – faces two parallel challenge tracks governed by different criteria and different time pressures. In our experience, failing to coordinate the two challenges can produce inconsistent evidence records that undermine both.
How does OFSI's designation review actually work?
OFSI administers financial sanctions in the UK but does not control the designation review process. Designation decisions rest with the Office of Financial Sanctions Implementation's parent department, HM Treasury, acting through the Sanctions Minister. The review mechanism under SAMLA allows a designated person to request that the Secretary of State reassess the designation; if the reassessment is refused or the designation upheld, the designated person may apply to the High Court for judicial review.
The review is administrative in character. The designated person submits representations setting out why the criteria are not met or why the designation is disproportionate. HM Treasury is not required to disclose all the material on which the designation was based; in practice, the government frequently relies on information it considers sensitive and provides only a summary or "gist" to the applicant. This creates a structural asymmetry. How do you rebut evidence you cannot see in full? That is the central practical difficulty in UK designation challenges, and it explains why the quality of the applicant's own evidence package is so important – the challenge succeeds or fails on what the applicant can put forward, not just on what the government declines to share.
Timelines for the review are not fixed by statute at a specific number of days; the process can extend over many months depending on the complexity of the matter and the volume of representations. We regularly advise clients to treat the review as an extended exercise in evidence assembly rather than a formal hearing, and to structure their representations to anticipate each factual allegation rather than to make a general denial.
How does Australia's challenge process compare?
Australia's challenge route is more diffuse and, in some respects, more formally accessible. A designated person may make representations to DFAT requesting a revocation, and the Minister retains a statutory discretion to revoke a designation at any time if satisfied it is no longer appropriate. Because the decision-making process is governed by Australian administrative law, the designated person also has access to merits review in the Administrative Appeals Tribunal ("AAT") in respect of decisions that are subject to that regime, and judicial review in the Federal Court on grounds of legal error.
The merits-review route is significant. Where it applies, the AAT can substitute its own decision for the Minister's – a power that the UK's administrative review process does not provide in equivalent terms. In our cross-border practice, this is one of the most consequential structural differences between the two regimes: a well-prepared applicant before the AAT can put a complete factual case to an independent tribunal; in the UK, the High Court on judicial review will generally not substitute its view of the merits for that of the Secretary of State.
That said, the merits-review route is not uniformly available for all Australian sanctions designations. Whether it applies depends on how the relevant regulation is constructed and whether the designation decision falls within the classes of decision subject to AAT review. Verifying the precise availability of that route before committing to a strategy is an essential first step that practitioners sometimes overlook.
Where do the evidential standards diverge most sharply?
The evidential standard is the point at which the two regimes diverge most sharply in operational terms. Under SAMLA, the UK applies a "reasonable grounds to suspect" threshold for designation – a low starting point. That means the factual case for listing does not need to rise to the level of proof on the balance of probabilities, let alone the criminal standard. A challenge must therefore do more than demonstrate that the evidence is uncertain; it must demonstrate that the reasonable-grounds test was not met, or that new material fundamentally alters the picture.
Australia's standard is framed differently. The administrative law test – whether the Minister was "satisfied" that designation was appropriate – opens the door to a broader proportionality argument. An applicant can contend not only that the underlying facts do not support the designation, but that the designation is unreasonable as a matter of administrative law, even if the basic factual allegation is not entirely without foundation. This is a materially wider attack surface.
There is a practical consequence for businesses preparing an evidence package. In the UK, the evidence package should focus tightly on disproving or significantly qualifying the specific factual allegation underlying the designation. In Australia, the package should also address proportionality: the impact of the designation on the designated person's rights and economic position, the availability of less restrictive alternatives, and whether the criteria as a matter of administrative reasonableness support the measure. These are different exercises, and they require different supporting materials.
We have acted for clients where a single evidence package was prepared to serve both regimes simultaneously. In almost every case, the package required substantial reorganisation to meet each regime's standard: the UK strand emphasised the specific factual rebuttal; the Australian strand included a proportionality memorandum that would have been of limited utility in the UK proceedings. The investment in tailoring was justified by the difference in outcomes available.
What is the role of the courts in each regime?
Judicial oversight differs between the regimes in both form and reach. In the UK, the High Court hears judicial review claims against designation decisions. The court applies the standard public-law grounds: illegality, procedural impropriety, and irrationality. Where sensitive material is involved, the court may appoint a Special Advocate to review closed material on the applicant's behalf without disclosing it to the applicant directly. This procedure mitigates the information asymmetry, but it is a constraint: the Special Advocate cannot take instructions from the applicant on the closed material.
Australia offers judicial review in the Federal Court on comparable administrative law grounds. The distinction, as noted above, is the additional availability of merits review in the AAT where that route applies. A Federal Court challenge can be faster than a SAMLA review followed by High Court judicial review, because the AAT process, where available, runs concurrently with the administrative representations rather than sequentially after them.
What happens when the UK and Australian designations both run to litigation simultaneously? The risk of inconsistent judicial findings is real. A court in one jurisdiction may assess the same underlying facts differently from a court in another. In our cross-border practice, coordinating the litigation timetables and ensuring consistent evidence positions across both proceedings is a core part of the mandate.
Risk flags: when the challenge is harder than it looks
Several risk flags recur in designation challenges across both regimes, and recognising them early is the difference between a well-structured case and a missed opportunity. The first is the asset-freeze effect on the ability to fund the challenge. Both the UK and Australian regimes impose asset freezes that can restrict the designated person's access to funds. Licensing a payment to legal counsel is typically available, but the application for that licence is itself a procedural step that takes time. Delays in obtaining authorisation to pay counsel can compress the window available for preparing the challenge.
The second risk flag is third-party exposure. Where the designated person has associated businesses, family members who are involved in corporate structures, or contractual counterparties who are themselves subject to freezing obligations, the challenge strategy must account for the secondary effects of the designation. An aggressive public challenge in one jurisdiction can draw regulatory attention to associated persons in another.
Third, and specific to the cross-regime context: a designation in one jurisdiction is not determinative of a listing in another, but it creates a factual record that regulators in other regimes can and do consult. A successful challenge in Australia does not automatically produce a revocation in the UK, and vice versa. The two processes must be managed as parallel tracks, not as a sequence in which one outcome produces the other.
What is the myth that most frequently derails a challenge at an early stage? It is the assumption that a successful political or reputational argument is sufficient. Both regimes require an evidence-based legal case, not a narrative of hardship or commercial injustice. Credible factual rebuttal, structured legal argument, and – in Australia – a proportionality analysis grounded in the specific statutory criteria are what produce results. Statements of general unfairness, however sincere, do not meet the legal threshold.
Practical steps and when to involve counsel
A designation challenge in either regime is not a matter for delay. Both regimes allow representations to be made at any time, but the window in which representations are most effective – before the designation has been adopted into a consolidated list, before reputational damage has hardened, and before counterparties have terminated relationships under compliance pressure – is finite. The position above covers the standard case. Your facts – the counterparty structure, the specific designation criterion invoked, the assets affected, and the presence or absence of a parallel listing – change the analysis entirely.
For a UK challenge, the immediate steps are: obtain OFSI's confirmation of the designation, secure a licence to fund legal representation, identify the specific criterion underlying the listing, assemble the factual rebuttal, and submit formal representations. In Australia, the steps run in parallel: confirm the designation instrument under the relevant regulations, assess AAT availability, assemble the evidence package with a proportionality component, and submit representations to DFAT while assessing whether an AAT application is appropriate.
For a business with exposure to both regimes, the two tracks must be coordinated. Evidence positions must be consistent. Litigation timetables should, where possible, be aligned. And the licensing applications to fund the challenge – in each jurisdiction – must be made promptly, because counsel cannot begin substantive work until the payment is authorised.
If a designation notice has already been received, or if a business has reason to believe a listing is imminent, an early confidential review can map the options that remain open. Those options narrow with time.
For a confidential review of a potential designation challenge under OFSI or Australia's autonomous sanctions regime, contact Calder & Vance at info@caldervance.com.
How the regimes interact with the broader delisting environment
Neither the UK nor Australia operates in isolation. Both regimes maintain alignment, to varying degrees, with the UN Security Council Consolidated List. Where a person is listed on the UN Consolidated List, a challenge to the UK or Australian autonomous designation is complicated by the existence of the UN listing. The UN delisting route – through the relevant Security Council committee, or through the Ombudsperson for ISIL/Al-Qaida designations – runs separately, and a successful national challenge does not produce an automatic UN delisting. Conversely, a UN delisting may prompt review of autonomous national designations, but it does not guarantee revocation.
For a business operating between the UK and Australia that also has exposure to EU sanctions, the General Court annulment route provides a third parallel track. The EU General Court applies a standard of judicial review that is more searching than the UK High Court's traditional judicial-review standard, and a successful annulment can carry persuasive weight in representations to OFSI and DFAT – although, again, it does not bind either authority. Practitioners handling multi-regime designations are well-advised to monitor the EU proceedings and to extract from any favourable General Court judgment the specific factual findings that can be deployed in the UK and Australian tracks.
Our work on cross-regime delisting matters reflects this multi-track reality. We structure the evidence package and the submissions to be reusable across the relevant proceedings, while tailoring the framing to the specific legal standard in each forum.
Related practices
- Delisting evidence package – Australia – assembling and presenting the factual case for revocation under Australia's autonomous sanctions regime.
- EU General Court annulment vs BIS EAR challenge: a comparative analysis – how the EU and US routes for contesting export-control and sanctions decisions compare in practice.
- EU General Court annulment – further analysis – extended analysis of evidential and procedural requirements before the General Court.
Frequently asked questions
Where do the regimes diverge on challenging the designation criteria?
The most significant divergence is structural. The UK's SAMLA review is administrative, with judicial review reserved for process failures and no independent merits substitution by the High Court. Australia's framework includes, where applicable, AAT merits review, which allows an independent tribunal to substitute its own decision for the Minister's. The evidential standard also differs: the UK threshold is "reasonable grounds to suspect", while Australia's administrative law test admits a broader proportionality argument. For a person designated under both regimes, these differences require parallel, tailored strategies rather than a single unified approach.
Which regime is stricter on challenging the designation criteria?
The UK regime is, in practice, harder to challenge on the merits. The "reasonable grounds to suspect" standard is low; the government may rely on sensitive undisclosed material; and the High Court on judicial review does not substitute its merits assessment for the Secretary of State's. Australia's framework, where AAT review is available, provides a wider attack surface: a full merits hearing before an independent tribunal, with the possibility of substituted decision. That said, the availability of AAT review for all categories of designation is not guaranteed and must be verified in each case before any strategy is committed to.
What should a cross-border business do about challenging the designation criteria?
Act quickly and on both tracks simultaneously. A designation challenge in either jurisdiction is more effective when representations are submitted before counterparty relationships have terminated and before the designation has become embedded in consolidated lists. For a business with exposure to both the UK and Australian regimes, the immediate steps are: secure licensing to fund legal representation in each jurisdiction, identify the specific designation criterion in each instrument, assemble a tailored evidence package that meets the standard in each regime, and submit representations in parallel. Coordinate the evidence positions across both proceedings to avoid inconsistency. Early counsel involvement preserves options that narrow with every passing week.
About the author
Henry Ashworth advises on UK financial sanctions and export controls, including OFSI licensing and enforcement, and judicial-review challenges to designations. He advises businesses and individuals on the full cycle of UK sanctions work, from compliance programme design through enforcement defence and designation challenge. Calder & Vance – International Sanctions & Export Control Counsel.
About Calder & Vance
Calder & Vance is an independent international sanctions and export-control boutique. We advise multinationals, financial institutions, exporters, and individuals on the major regimes – OFAC and BIS in the United States, OFSI and ECJU in the United Kingdom, the EU Council regulations and the EU General Court, the United Nations Consolidated List, and the regimes of Switzerland, Canada, Australia, the UAE, Singapore, and Japan. Our work is limited to lawful compliance, licensing, delisting, enforcement defence, and due diligence. To discuss a matter, contact info@caldervance.com.
Disclaimer: This material is general information, not legal advice, and is not a substitute for advice on your specific facts. Sanctions and export-control rules change frequently and differ by regime; verify the current position before relying on anything stated here. Calder & Vance does not advise on circumventing or evading sanctions. For advice on your situation, contact info@caldervance.com.