In the late 1960s and early 1970s, the entire population of the Chagos Islands was forcibly removed from their homeland on the Chagos Archipelago by the British government. In the history of colonialism, it is the sole example of the exile of an entire population of British citizens. In earlier litigation, the Divisional Court held that it was achieved unlawfully; the Court of Appeal described the “shameful treatment” of the Chagossians as the “pauperisation and expulsion of the weak in the interests of the powerful”; and the House of Lords found, and the government accepted, that the exile was achieved with a callous disregard of the interests of Chagossians.
In 2012, the government commenced a review of its policy on the Chagos Islands and Chagossians. Despite a feasibility report indicating a range of possible means by which the Islands could be successfully resettled, the government decided – on 16 November 2016 – to refuse to support or permit the resettlement of the Islands, once again disappointing Chagossian hopes of return.
Ms Solange Hoareau issued a claim for judicial review of that decision. Permission was granted on the papers in respect of five of the seven pleaded grounds. Today, the Divisional Court (Singh LJ and Carr J) granted permission on the remaining two grounds. The substantive hearing will take place on 14-18 May.
Ms Hoareau contends that the decision was unlawful because: i) the Secretary of State failed to recognise that his decision not to fund resettlement was not determinative of whether he should permit resettlement; ii) the decision was irrational and/or amounted to a disproportionate interference with the Chagossians’ fundamental right of abode in common law; iii) the decision was inadequately reasoned; and iv) in taking the decision, the Secretary of State failed conscientiously to take into account consultation responses. Permission was granted on these grounds on the papers.
Today, the Divisional Court granted permission on the additional grounds that i) the decision was arguably taken in breach of the public sector equality duty; and ii) the decision was arguably an unlawful interference with the rights of the Chagossians, protected by the European Convention on Human Rights.
Giving judgment on the permission application, Singh LJ considered that the ECHR claim raised a potentially important issue of law in relation to the interaction between Articles 1 and 56 of the ECHR. Although the Divisional Court is bound by the judgment of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs  UKHL 61 to find that the ECHR does not apply in the Chagos Islands, the Court considered it arguable that, post Al-Skeini v United Kingdom (Application No. 55721/07), the reasoning in that judgment is no longer sustainable and the Supreme Court may therefore wish to reconsider the point. The Divisional Court accepted that, post Al Skeini, it was arguable that the exercise of effective control by the UK over the Chagos Islands may mean that the Claimant was “within the [UK’s] jurisdiction” for the purposes of Article 1 ECHR, notwithstanding the fact that the UK has not made an explicit declaration under Article 56 of the ECHR extending the application of the Convention to the Chagos Islands.
Toby Fisher and Admas Habteslasie act for Ms Horeau, led by Ben Jaffey QC.