Court of Appeal hands down judgment in challenge to Chagos Islands resettlement decision

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On Thursday 30th July, the Court of Appeal (Etherton MR, Green and Dingemans LJJ) handed down judgment in R (Hoareau & Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010, dismissing the appeal on all grounds. The appeal relates to the Chagos Islands, which form part of the British Indian Ocean Territory (BIOT), an overseas territory of the United Kingdom, and raises the question of whether the UK’s obligations under the ECHR extend to overseas territories. Between 1968 and 1972, the British government exiled the entire population of the Chagos Islands to facilitate the construction of a US military base on one of the Islands, Diego Garcia. A series of laws were promulgated to prohibit any Chagossian from returning to the Islands without a permit. 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, who has lived in exile in the Seychelles for almost 50 years, issued a claim for judicial review on a number of grounds including that the decision was contrary to her rights under the European Convention on Human Rights, and that Article 1 jurisdiction extended to the Islands. Ms Hoareau relied on Al Skeini v United Kingdom, in which the ECtHR significantly expanded the extraterritorial jurisdictional scope of Article 1 of the ECHR. The Divisional Court dismissed that claim, finding that, in light of the existence of the ‘colonial clause’ in Article 56 of the ECHR, Ms Hoareau could not rely on jurisdiction under Article 1. Following the Divisional Court’s judgment, the International Court of Justice issued its Advisory Opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, concluding that the UK’s administration of the Islands was contrary to international law. ­The appellants argued that, in light of the Advisory Opinion, the UK could not rely on Article 56 because that article was predicated on lawful administration of territory. The Court of Appeal dismissed that ground of appeal, in addition to grounds challenging other aspects of the decision. Admas Habteslasie acted for the First Appellant, Ms Hoareau.

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