Solange Hoareau v The Secretary of State for Foreign and Commonwealth Affairs

JurisdictionEngland & Wales
JudgeUnderhill,Leggatt LJJ
Judgment Date16 July 2019
Neutral Citation[2019] EWCA Civ 1254
Docket NumberCase No: C1/2019/0472
CourtCourt of Appeal (Civil Division)
Date16 July 2019

[2019] EWCA Civ 1254

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, QBD Divisional Court

Lord Justice Singh and Mrs Justice Carr DBE

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION))

and

Lord Justice Leggatt

Case No: C1/2019/0472

Between:
(1) Solange Hoareau
(2) Mr Louis Bancoult
Appellants
and
The Secretary of State for Foreign and Commonwealth Affairs
Respondent

Mr Ben Jaffey QC, Mr Paul Luckhurst and Mr Admas Habteslasie (instructed by Leigh Day) for the 1 st Appellant

Mr Edward Fitzgerald QC and Mr Paul Harris SC (instructed by Clifford Chance LLP) for the 2 nd Appellant

Sir James Eadie QC, Kieron Beal QC and Sarah Wilkinson (instructed by the Treasury Solicitors) for the Respondent

Hearing date: 8 th July 2019

Approved Judgment

Leggatt LJJ

Underhill and

1

This is an application for permission to appeal in the latest round of litigation brought by former inhabitants of the Chagos Islands against the British Government arising out of their expulsion from the Islands nearly 50 years ago, an act which the Government now explicitly recognises to have been shameful and wrong. Since it is only a permission application we will not set out the background, which can readily be found in the decision of the Divisional Court which is the subject of the present appeal. As there appears, separate but closely related claims were brought by Ms Hoareau and Mr Bancoult. Ms Hoareau represents, broadly speaking, Chagossians now settled in the Seychelles and Mr Bancoult Chagossians living in Mauritius. The claims challenge three related decisions made on 16 November 2016 – a decision not to provide financial support to allow Chagossians to resettle in the Islands but instead to provide a support package of approximately £40 million for them in the Seychelles and Mauritius, together with the implicit decision not to rescind two Orders in Council made in 2004 which deny Chagossians a right of abode in the Islands. The Claimants' challenge to all three decisions was dismissed by the Divisional Court (Singh LJ and Carr J) in February this year.

2

Ms Hoareau pleads four grounds of appeal against the Divisional Court's decision and Mr Bancoult two. Ground 2 in both cases is avowedly identical, and although ground 1 is rather differently expressed in the two cases both formulations are also to substantially the same effect. We should make clear that the grounds do not challenge the Divisional Court's conclusions on all the points argued before it.

3

We start with ground 2, which challenges the decision of the Divisional Court that the European Convention on Human Rights has no application to the Claimants' cases: see paras. 129–149 of the judgment. As pleaded, this ground is in both cases expressed in very general terms, but as developed in the skeleton argument on behalf of Ms Hoareau, which is adopted on behalf of Mr Bancoult, and still more in the oral submissions of Mr Ben Jaffey QC on her behalf, it relies to a substantial extent on the advisory opinion of the International Court of Justice in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, which was published on 25 February this year and accordingly post-dates the decision of the Divisional Court. Notwithstanding the cogent submissions to the...

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