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

The Court of Appeal considered an application for permission to appeal against the Divisional Court's dismissal of judicial review challenges by former inhabitants of the Chagos Islands to decisions made on 16 November 2016 about resettlement support and the continued operation of Orders in Council denying right of abode.

The court granted permission in part. It held that arguments based on the International Court of Justice advisory opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 raised a real prospect of success on the question whether the European Convention on Human Rights could apply to the Claimants and therefore permitted that ground to proceed. The court also permitted challenge to the Divisional Court's approach to intensity of review and to the allegation that Ministers were misled about the quantum of the resettlement package, while refusing permission on the claim under section 149 of the Equality Act 2010 because the Divisional Court was entitled to conclude that the Chagossians were treated as an ethnic group for decision‑making purposes.

This was an application to the Court of Appeal for permission to appeal from the Divisional Court (Singh LJ and Carr J) which had dismissed judicial review challenges by two groups of former inhabitants of the Chagos Islands (one group represented by Ms Hoareau, broadly Chagossians settled in the Seychelles, and the other by Mr Bancoult, broadly Chagossians settled in Mauritius). The underlying challenge attacked three related decisions made on 16 November 2016: the refusal to provide financial support to enable resettlement in the Islands, the choice instead to provide a support package of about approximately for the Seychelles and Mauritius) and the implicit decision not to rescind Orders in Council of 2004 denying right of abode.

(i) Nature of the application: permission to appeal against the Divisional Court dismissal of the Claimants' judicial review challenges.

(ii) Issues framed: the principal contested issues were (a) whether the European Convention on Human Rights has application to the Claimants' cases (ground 2), including arguments based on the International Court of Justice advisory opinion concerning the Chagos Archipelago; (b) the appropriate intensity of judicial review to be applied to the impugned decisions (ground 1); (c) whether Ministers had been misled as to the basis on which the quantum of the resettlement package was arrived at (ground 3); and (d) whether the public sector equality duty in section 149 of the Equality Act 2010 had been breached because the Government did not recognise the Chagossians as a distinct racial group (ground 4).

(iii) Reasoning and disposition: the court concluded that arguments based on the ICJ advisory opinion gave rise to a real prospect of success on the Convention point and that those arguments could not sensibly be disentangled from the Convention challenge as presented in the Divisional Court; it therefore allowed permission to pursue ground 2 and ordered amendment of pleaded grounds to incorporate the ICJ material. The court also considered that the challenge to the Divisional Court's approach to intensity of review had a realistic prospect of success and permitted that ground to proceed, encouraging focused revised skeleton arguments identifying how any different approach might have changed the outcome. The challenge on the allegation that Ministers were misled about the package's quantum was likewise permitted because it could not be said to have no real prospect of success. By contrast, permission was refused on the PSED ground: the Divisional Court was entitled on the material to find that the Chagossians were treated as an ethnic or historic community for decision‑making purposes, and the contention that the formal PSED analysis was wrongly confined to intra‑community issues was unsustainable on the material before the court.

The court therefore granted permission to appeal in part and refused permission on the equality ground.

Permission to appeal was granted in part and refused in part. The Court allowed challenges to proceed on (i) the applicability of the European Convention on Human Rights to the Claimants' cases, permitting arguments based on the International Court of Justice advisory opinion to be added to the grounds, (ii) the level of intensity of judicial review applied by the Divisional Court, and (iii) the allegation that Ministers were misled about the quantum of the resettlement package. Permission was refused in respect of the claim under section 149 of the Equality Act 2010 because the Divisional Court was entitled to conclude that the Chagossians were treated as an ethnic group for the purposes of the decision-making process and that the PSED complaint had no real prospect of success.

This is an appeal to the Court of Appeal from the High Court, QBD Divisional Court (Singh LJ and Carr J), which in February 2019 dismissed the Claimants' judicial review challenges to the decisions made on 16 November 2016. The present judgment grants permission to appeal in part and refuses permission in part.