R (On the Application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs

The House considered the validity of section 9 of the British Indian Ocean Territory (Constitution) Order 2004, which declared that no person has a right of abode in BIOT and reimposed immigration controls. The majority held that Orders in Council made under the royal prerogative are subject to judicial review on ordinary grounds of legality, rationality and procedural propriety, but that section 9 was lawful. The court rejected the submission that the Colonial Laws Validity Act 1865 prevents review in UK courts of prerogative Orders in Council and held that the Human Rights Act 1998 did not apply in BIOT. The majority concluded the Foreign Secretary had not made a clear, unambiguous promise giving rise to a substantive legitimate expectation and that, in all the circumstances (including feasibility reports and security considerations), the reintroduction of immigration controls was not irrational.

This appeal challenged section 9 of the British Indian Ocean Territory (Constitution) Order 2004 and related immigration measures on public law grounds.

Background and parties:

• The applicant, Mr Bancoult, a Chagossian displaced from the Chagos Archipelago, sought judicial review and a declaration that section 9 and the Immigration Order were unlawful because they purported to remove any right of abode and to exclude Chagossians from BIOT.
• The Secretary of State defended the Orders as legitimate exercises of the Crown's prerogative legislation for BIOT, taken in light of feasibility studies about resettlement and defence/security concerns.

Procedural posture:

• The Divisional Court and subsequently the Court of Appeal held the contested provisions unlawful (on grounds including irrationality and legitimate expectation). The Secretary of State appealed to the House of Lords, which heard argument on the scope of the prerogative, the application of the Colonial Laws Validity Act 1865, legitimate expectation, and human-rights and international-law issues.

Issues framed:

1. Whether an Order in Council made under the prerogative creating BIOT and enacting section 9 is justiciable in UK courts.
2. Whether the Crown had power to remove a right of abode in BIOT by prerogative Order, or whether such action was excluded by fundamental common-law principles or the Colonial Laws Validity Act 1865.
3. Whether the Foreign Secretary's 3 November 2000 press statement and the 2000 Immigration Ordinance created a clear, unambiguous promise amounting to a substantive legitimate expectation that removal of entry and abode rights would not occur.
4. Whether the decision to reimpose immigration controls was irrational or an abuse of power in light of feasibility reports, defence and diplomatic considerations, and other relevant factors.
5. Whether the Human Rights Act 1998 or international law affected the validity of the Constitution Order.

Court’s reasoning and conclusions:

• The House (majority) accepted that prerogative Orders in Council are subject to judicial review on ordinary public law grounds; they are not immune simply because they are legislative in character.
• The Colonial Laws Validity Act 1865 does not oust the jurisdiction of UK courts to review Orders in Council for initial legality; the Act addresses repugnancy within colonial law but was not intended to prevent review of prerogative competence in English courts.
• The court rejected the extreme submission that the Crown could never legislate to affect rights of abode in a colony: such rights are creatures of law and in a ceded colony the Crown has plenary legislative authority, but the Crown must exercise that power lawfully and take the importance of such rights into account.
• The majority held that the 2000 press statement and Ordinance did not amount to a clear, unqualified promise that immigration controls would never be reintroduced irrespective of later changed circumstances; accordingly no substantive legitimate expectation protected the Chagossians from the 2004 measures.
• On the merits the majority concluded that the decision to restore immigration control after the feasibility study and in the light of defence and diplomatic considerations was within the range of reasonable responses and not irrational or an abuse of power.
• The Human Rights Act 1998 was held not to apply to BIOT and international law did not furnish a basis in domestic law for invalidating the Order.

Appeal allowed. The majority held that prerogative Orders in Council are reviewable by the courts but that section 9 of the British Indian Ocean Territory (Constitution) Order 2004 was a lawful exercise of the Crown's legislative authority. The court found no clear, unambiguous promise creating a substantive legitimate expectation that immigration controls would not be reimposed, and it was not irrational for the Executive to restore immigration control having regard to feasibility and security considerations.

Divisional Court (Bancoult (No 1): R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067) quashed the 1971 Ordinance; Court of Appeal ([2007] EWCA Civ 498) and the Divisional Court below in these proceedings held section 9 invalid; appeal to the House of Lords allowed ([2008] UKHL 61).