Solange Hoareau v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mrs Justice Carr |
| Judgment Date | 08 February 2019 |
| Neutral Citation | [2019] EWHC 221 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/964/2017 and CO/967/2017 |
| Date | 08 February 2019 |
The Queen (on the application of
[2019] EWHC 221 (Admin)
THE RIGHT HONOURABLE Lord Justice Singh
THE HONOURABLE Mrs Justice Carr DBE
Case No: CO/964/2017 and CO/967/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ben Jaffey QC, Mr Toby Fisher and Mr Admas Habteslasie (instructed by Leigh Day) for the First Claimant
Mr Edward Fitzgerald QC, Mr Paul Harris SC and Ms Angela Patrick (instructed by Clifford Chance LLP) for the Second Claimant
Sir James Eadie QC, Mr Steven Kovats QC, Mr Kieron Beal QC, Ms Sarah Wilkinson, Ms Penelope Nevill and Mr John Bethell (instructed by the Government Legal Department) for the Defendant
Hearing dates: 10 th – 14 th December 2018
Approved Judgment
Lord Justice Singh and
Structure of judgment
This is the judgment of the Court and is divided into the following sections:
Part I Introduction
Part II Background
Part III Overview of the Review and the Decision
Part IV The KPMG Report
Part V The decision-making process
Part VI Overview of the Claimants' case
Part VII Overview of the Defendant's case
Part VIII General principles and observations
Part IX Issue 1: the right of abode challenge
Part X Issue 2: the Human Rights Act challenge
Part XI Issue 3: the public sector equality duty challenge
Part XII Issue 4: the irrationality challenge
Part XIII Issue 5: the consultation challenge
Part XIV Issue 6: the support package challenge
Part XV Conclusion
For the purpose of reaching our conclusions we have taken full account of the closed material and submissions within the confidentiality ring established by our order dated 25 September 2018 (as amended) (“the Confidentiality Ring”). It has, however, not proved necessary in order for us to explain our reasoning to set out in this judgment any of the substance of that material. For the avoidance of doubt, nothing that we say is intended to lift the confidentiality attaching to the sensitive materials within the Confidentiality Ring.
Part I: Introduction
The Chagos Archipelago lies in the middle of the Indian Ocean. It is approximately 2,200 miles east of Mombasa, Kenya, and approximately 1,000 miles south-west of the southern tip of India. The largest island is Diego Garcia. The group of islands (together “the Islands”) includes Salomon, Peros Banhos and a number of smaller islands. The Islands are part of the British Indian Ocean Territory (“the BIOT”).
The Defendant is the principal Secretary of State with responsibility for the oversight of British Overseas Territories, including the BIOT. However, the BIOT itself is a separate constitutional entity from the Foreign and Commonwealth Office (“FCO”) and the United Kingdom Government (“the Government”). It has its own legislature, executive and judiciary, established by its own constitution. The FCO discharges its functions in respect of the BIOT on behalf of the Crown in right of the BIOT.
These claims have their roots in the forced exile of the entire population of the Chagossians, formerly known as “Ilois”, between 1966 and 1972 from their homeland on the Islands. No Chagossian has lived on any of the Islands since 1973. Today the Chagossians live in Mauritius, the Seychelles, the United Kingdom (“UK”) and elsewhere.
The Chagossians are denied the right of abode in the Islands by virtue of the BIOT (Constitution) Order 2004 (“the Constitution Order”), section 9 of which imposes immigration controls in the BIOT, and the BIOT (Immigration) Order 2004 (“the Immigration Order”), (together “the 2004 Orders”). There is no settled civilian population in the BIOT, or any infrastructure to support human occupation in any of the islands other than Diego Garcia, which serves as a staging area for US military operations. All of the land on the BIOT is Crown land.
On 20 December 2012 the Defendant announced a review of BIOT policy, as a result of which the Government would consider afresh the possibility of resettling the Chagossians (“the Review”). As part of the Review the Government commissioned an independent feasibility study from KPMG (“the KMPG Report”). A consultation exercise followed publication of the KPMG Report in 2015 (“the 2015 Consultation”). By written ministerial statement of 16 November 2016 (“the WMS”) the Defendant stated that the Government would not support resettlement of Chagossians to the BIOT; it would provide a support package of approximately £40 million over ten years for Chagossians living outside the BIOT (“the Decision”, separated as necessary into “the Resettlement Decision” and “the Support Package Decision”).
The First Claimant, Ms Solange Hoareau (“Ms Hoareau”), is a native Chagossian who was born on Diego Garcia in 1953. Her mother and grandparents were also born there. She was, together with her parents and seven of her siblings, relocated to the Seychelles without consent. The Second Claimant, Mr Louis Bancoult (“Mr Bancoult”), was born on Peros Banhos in 1964. He and his family were prevented from returning in 1968 after visiting Mauritius for hospital treatment. He was a founder and is the current chair of the Chagos Refugee Group (“the CRG”). He has been involved in a representative capacity either directly or indirectly in all of the extensive litigation that has flowed over the years since the Chagossians' removal from the Islands.
By these conjoined judicial review claims:
i) Both Claimants challenge the lawfulness of the Resettlement Decision;
ii) Ms Hoareau challenges the lawfulness of the Support Package Decision;
iii) Both Claimants challenge the (implicit) decision by the Defendant not to remove the statutory and constitutional bar on the Chagossians' right of abode in the BIOT (“the Right of Abode Decision”).
As will become apparent the arguments advanced on behalf of the Claimants have been extremely wide-ranging and in places invite detailed scrutiny of past events, presentations and decision-making within government. The approach of the Defendant towards the scope of the allegations he faces has been a permissive one. Thus, even though objection could have been made, he has consented to proposed amendments by the Claimants to expand their claims (and has been prepared to address claims that have not been pleaded at all).
There have been numerous and often lengthy interlocutory hearings before us since January 2018 leading up to the full hearing, including on 20 February, 20 April, 16 and 17 May, 28 June, 4 and 5 July, 25 September and 15 November 2018. Many have required the attendance of and representation from public interest immunity advocates, who have spent weeks examining materials both outside and within the Confidentiality Ring. For the purposes of trial we have been provided with 16 open trial bundles, 2 bundles of closed material, 6 bundles of authorities, alongside open and closed skeleton arguments. We have considered all the materials and arguments before us. In summary, the process has been an inclusive and exhaustive one.
Part II: Background
The first inhabitants of the Islands arrived in the mid-18 th century. By the beginning of the 20 th century, there was a settled population of African, Malagasy and Indian origin, working on coconut plantations, fishing, growing small kitchen gardens and rearing chickens and ducks. The Islands, along with Mauritius, were ceded by France to the Crown by the Treaty of Paris in 1814. By the early 1960s the Islands' population was in decline as low wages, monotonous work, the lack of facilities and great travelling distance to Mauritius and the Seychelles discouraged the recruitment and/or retention of labour. The plantations suffered from a lack of investment.
In 1964 discussions began in earnest between the Government and the United States (“US”) Government (“the USG”) over the establishment of US defence facilities in the Indian Ocean. The USG asked for a territory with no inhabitants, and negotiations started for the UK to lease Diego Garcia to the US for this purpose. In November 1965 the UK reached agreement on the detachment of the Islands from Mauritius on terms of payment of £3m plus resettlement costs to the Mauritius Government. The Islands became part of the BIOT, as reflected in the BIOT Order in Council ( SI 1965/1920). The motivation for the creation of the BIOT was the provision of a military base without a civilian population for as long as necessary for the defence purposes of the UK and her allies, in particular the US. By exchange of notes dated 30 December 1966 (“the Exchange of Notes”), the Government and the USG agreed that the BIOT should be available “for the needs of both governments for defence” “for an indefinitely long period”, comprising 50 years initially, followed by a 20 year period unless notice to terminate was given (“the 1966 Agreement”).
Between 1966 and 1972 the Government relocated all Chagossians to Mauritius and the Seychelles with a view to facilitating the ability of the USG to establish a naval base on Diego Garcia. It is not necessary for present purposes to set out the full detail surrounding the circumstances of exile which can in any event be found in the judgment of Ouseley J in Chagos Islanders v Attorney General [2003] EWHC 2222 (QB) (“ Chagos Islanders v AG”). That was group litigation brought on behalf of the Chagossians in both Mauritius and the Seychelles. The Court of Appeal has described the treatment of the Chagossians by the Government as “shameful”, evidencing the “pauperisation and expulsion of the weak in the interests of the powerful” (see Chagos Islanders v AG [2004] EWCA Civ 997 at [6]). The House of Lords has stated, and the Defendant accepts, that the...
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