Horeau & Ors, R (On the Application Of) v Secretary of State for Foreign And Commonwealth Affairs

The High Court refused a renewed application for permission to bring judicial review of the Foreign & Commonwealth Office consultation on British Indian Ocean Territory resettlement. The claim raised three grounds: (1) that the consultation breached the Coughlan principles and procedural fairness by misrepresenting its scope; (2) that a subsequent letter (the alleged "Direct Financial Support decision") was irrational because it excluded ad hoc financial support for Chagossians who remained in the Seychelles while contemplating support for those who resettled; and (3) that the decision was taken in breach of the Public Sector Equality Duty under section 149 of the Equality Act 2010.

The judge held that there was no duty to consult on a matter the Government did not intend to decide, that the consultation was properly confined to resettlement and related alternatives, and that the rationality challenge had no real prospect of success because no substantive decision on the resettlement options had been taken. The equality duty claim was also premature and did not meet the threshold for permission.

Background and parties: The claimants are representatives of former inhabitants of the Chagos Islands now living in the Seychelles. The defendant is the Secretary of State for Foreign and Commonwealth Affairs. The claim challenged the Government's consultation (August–October 2015) on possible resettlement of the British Indian Ocean Territory (BIOT) and a letter of December 2015 which the claimants characterised as excluding consideration of ad hoc financial support for Chagossians who remain in the Seychelles.

Nature of the application: This was a renewed oral application for permission to bring judicial review of the consultation exercise and the alleged Direct Financial Support decision. The claim sought permission to challenge the lawfulness of the consultation and the subsequent decision-letter on grounds of procedural unfairness (Coughlan), irrationality and breach of the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010.

Issues framed by the court:

• Whether the consultation was legally flawed because it misrepresented its scope and breached the Coughlan principles or other duties of procedural fairness;
• Whether the decision not to contemplate ad hoc financial payments to Chagossians who do not resettle was irrational, in particular given that some categories (elderly or infirm) may be unable to resettle and yet would receive no support;
• Whether the alleged decision was taken without regard to the PSED (section 149 Equality Act 2010), so as to have a discriminatory impact on older or disabled persons.

Court's reasoning and disposition: The court agreed with the earlier decision of Ouseley J that the consultation was properly confined to the question of resettlement and measures related to it; there was no duty to consult on a decision the Government did not intend to take. The December 2015 letter was a reiteration of long-standing policy declining compensation, not a fresh policy decision excluding ad hoc payments. The irrationality challenge had no realistic prospect because no substantive decision had been taken on the resettlement options and any alleged unfairness depended on a hypothetical future choice (in particular a large-scale resettlement option) which might never be selected. The PSED challenge was premature: an arguable PSED claim might be mountable once more coherent and specific decisions on resettlement and support were proposed, but not at the present stage. The renewed application for permission was refused on all three grounds.

Procedural note: The renewed oral hearing took place on 11 August 2016 and the judgment refusing permission was given in writing on 12 August 2016.

This renewed application for permission to bring judicial review is refused on all three grounds. The consultation was lawfully confined to resettlement and related alternatives; no irrationality has been shown in excluding ad hoc payments at this stage because no substantive decision on resettlement options has been taken; and any PSED challenge is premature and does not meet the threshold for permission.

Permission on the papers had earlier been refused by Ouseley J. This was a renewed oral application for permission heard on 11 August 2016; judgment refusing permission given 12 August 2016. No further appellate history is stated in the judgment.