Hoareau & Anor v The Secretary of State for Foreign and Commonwealth Affairs

At the permission stage, an appeal ground may proceed where it has a real prospect of success. A borderline issue may also be considered where the appeal will proceed on another ground. A later international judicial opinion may justify allowing new arguments to be raised, provided the grounds are properly amended. For the public sector equality duty, decision materials may establish that a community was treated as an ethnic group even where the Government disputes that it satisfies the statutory definition. A review directed to the community’s interests as a group may answer a complaint that the duty was considered only by reference to issues within the community.

This was an application for permission to appeal by Solange Hoareau and Louis Bancoult against the dismissal of related judicial review claims by the High Court, QBD Divisional Court. The claims challenged decisions made on 16 November 2016 not to provide financial support for resettlement in the Chagos Islands, but instead to provide a support package of approximately £40 million in the Seychelles and Mauritius, together with an implicit decision not to rescind two 2004 Orders in Council. The proposed grounds concerned the application of the European Convention on Human Rights, the intensity of review, alleged ministerial misdirection about the resettlement package, and the public sector equality duty. The central issue was whether the proposed grounds had a real prospect of success.

1. Disposition. Permission to appeal was granted on grounds 1, 2 and 3. Permission was refused on ground 4. The claim forms and grounds of appeal were to be amended to formulate the permitted arguments based on the later international decision.
2. European Convention on Human Rights. Arguments based substantially on the advisory opinion of the International Court of Justice in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, published after the Divisional Court’s decision, had a real prospect of success. They could properly be raised on appeal, together with the related arguments advanced below. The amended grounds were required to give the Secretary of State and the court an authoritative formulation of the case (para [3]-[4]).
3. Intensity of review. The Divisional Court’s reasoning had considerable attraction, but the issue was difficult and the proposed challenge could not be said to have no realistic prospect of success. Since the appeal would proceed on ground 2, there was value in permitting consideration of the intensity issue, with the appellants encouraged to identify how a different approach could have affected the outcome (paras [5]-[6]).
4. Alleged ministerial misdirection. Although the Divisional Court’s reasoning had force, the court was not prepared to conclude that the challenge concerning the basis on which the resettlement package was quantified had no real prospect of success (para [7]).
5. Public sector equality duty. The Divisional Court was entitled to conclude from the decision-making materials that the Chagossians had been treated as an ethnic group, whether or not they satisfied the statutory definition under section 149 of the Equality Act 2010. The whole review was directed to the interests of the Chagossians as a group. There was therefore no realistic prospect that the challenge based on an allegedly inadequate equality analysis would succeed (paras [8]-[12]).

• Court of Appeal (Civil Division) [2019] EWCA Civ 1254: permission granted on grounds 1–3 and refused on ground 4.
• High Court, QBD Divisional Court: Singh LJ and Carr J dismissed the related challenges in February 2019.