Summary
At High Court level, the domestic standard for reviewing the substance of governmental decisions remains irrationality, not proportionality. The intensity of review varies with context. Courts must show particular caution where decisions involve high policy, national security, international relations, public expenditure, environmental risks and matters outside ordinary judicial experience. A public authority need not reconsider a constitutional immigration bar separately from the practical question of resettlement where the two are closely connected. The Convention and the Human Rights Act 1998 did not apply to the British Indian Ocean Territory in the absence of an Article 56 declaration. The public sector equality duty applied, but was satisfied on the evidence. The consultation, resettlement decision and voluntary support package were lawful.
Factual background
Two Chagossian claimants brought conjoined judicial review claims against the Secretary of State’s 2016 decisions concerning the British Indian Ocean Territory. They challenged the refusal to support resettlement, the refusal to remove the constitutional immigration bar imposed by the BIOT (Constitution) Order 2004 and the BIOT (Immigration) Order 2004, and, in one claim, a proposed £40 million support package for Chagossians living outside the Territory.
The issues included irrationality, alleged factual errors and ministerial misinformation, consultation, the Convention and Human Rights Act 1998, the public sector equality duty, legitimate expectation and the scope of executive discretion.
Held
- Disposition. The Divisional Court dismissed both claims.
- Standard of review. The court followed the analysis in Browne v Parole Board of England and Wales [2018] EWCA Civ 2024 and held that irrationality remained the common-law standard at this level. Proportionality had not replaced it. The policy content of the decisions, their defence and international-relations dimensions, financial consequences and remoteness from ordinary judicial experience required substantial judicial caution and gave the Government a wide margin of judgment. The court distinguished the heightened approach in R v Ministry of Defence, ex p. Smith [1996] QB 517 because no surviving fundamental common-law right was engaged.
- Right of abode. The validity of the 2004 Orders was not challenged. Following R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, the court treated the legal right of abode as closely connected with the practical creation of a viable society. There was no legal obligation to reconsider or abrogate the Orders separately or before considering resettlement. The observations in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35 did not establish a freestanding public-law duty to revisit the constitutional bar.
- Convention rights and equality. The court was bound by Bancoult (No 2) and rejected the argument that later Strasbourg or Supreme Court decisions had superseded it. No Article 56 declaration extended the Convention to BIOT, and the claimants were not victims of a current Convention interference. The public sector equality duty under section 149 of the Equality Act 2010 applied to the relevant functions, including the resettlement decision. It was discharged in substance, with rigour and an open mind, when the decision-making process was assessed fairly as a whole.
- Rationality, consultation and support. The cost, security, social, political and environmental assessments were matters for Ministers. No established and material mistake of fact or critical misinformation was shown. The consultation responses were fairly presented, and the change in the United States position did not require reconsultation. The voluntary support package was provisional and subject to refinement; the known delivery risks did not make it irrational.
The court’s approach to earlier authorities
Available to signed-in members.
Appeal route
- This judgment [2019] EWHC 221 (Admin) High Court (Administrative Court)
- Appealed to[2020] EWCA Civ 1010Outcomeappeal dismissed
Key cases cited
24 authorities cited.
- R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35
- Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and another [2015] UKSC 69
- Hotak v Southwark London Borough Council [2015] UKSC 30
- R v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44
- R (on the application of Bancoult) Respondent v Secretary of State for Foreign and Commonwealth Affairs (Appellant) [2008] UKHL 61
- Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents) and Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants) [2006] UKHL 10
- Browne v The Parole Board of England & Wales [2018] EWCA Civ 2024
- Stuart Bracking & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
- Abbey Mine Ltd v Coal Authority & Anor [2008] EWCA Civ 353
- Secretary of State for Defence v Elias [2006] EWCA Civ 1293
- National Association of Health Stores & Anor, R (on the application of) v Department of Health [2005] EWCA Civ 154
- Chagos Islanders v Attorney Generall & Anor [2004] EWCA Civ 997
- E v Secretary of State for Home Department [2004] EWCA Civ 49
- Association of British Civilian Internees - Far Eastern Region v Secretary of State for Defence [2003] EWCA Civ 473
- R v North and East Devon Health Authority, Ex p Coughlan [1999] EWCA Civ 1871
- R v Ministry of Defence, Ex p Smith (Beckett, Ex parte, Grady, Ex parte, Lustig-Prean, Ex parte, R v Admiralty Board of the Defence Council, Ex parte Beckett, R v Admiralty Board of the Defence Council, Ex parte Lustig-Prean, R v Ministry of Defence, Ex parte Grady, Smith, Ex parte) [1996] QB 517
- Hottak & Anor, R (on the application of) v The Secretary of State for Foreign and Commonwealth Affairs & Anor [2015] EWHC 1953 (Admin)
- Devon County Council & Anor v Secretary of State for Communities and Local Government [2010] EWHC 1456 (Admin)
- Secretary of State for the Home Department v AT & Anor [2009] EWHC 512 (Admin)
- Watkins-Singh, R (on the application of) v Aberdare Girls' High School & Anor [2008] EWHC 1865 (Admin)
- Elphinstone, R (on the application of) v Westminster City Council & Ors [2008] EWHC 1287 (Admin)
- Chagos Islanders v United Kingdom (2013) 56 EHRR SE 15
- Al-Skeini v United Kingdom (2011) 53 EHRR 18
- R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529
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Cases citing this case
10 later cases · 7 positive · 1 neutral · 2 negative
Most senior citing decisions:
- R (on the application of Marouf) v Secretary of State for the Home Department [2023] UKSC 23 overruled
- Turani & Anor v Secretary of State for the Home Department [2021] EWCA Civ 348 overruled
- Campaign Against Arms Trade, R (On the Application Of) v The Secretary of State for International Trade [2019] EWCA Civ 1020 applied
- Wilson & Ors , R (On the Application Of) v The Prime Minister [2019] EWCA Civ 304
- The Cornwall Council, R (on the application of) v The Secretary of State for Housing, Communities and Local Government [2026] EWHC 1805 (Admin)
- Bertrice Pompe, R (on the application of) v The Secretary of State for Foreign, Commonwealth and Development Affairs [2026] EWHC 529 (Admin)
- National Association of Head Teachers & Anor, R (on the application of) v Ofsted & Anor [2025] EWHC 2891 (Admin)
- Campaign Against Arms Trade, R (on the application of) v Secretary of State for International Trade [2023] EWHC 1343 (Admin)
- Article 39, R (on the application of) v Secretary of State for Education [2020] EWHC 2184 (Admin)
- Turani & Ors v Secretary of State for the Home Department [2019] EWHC 1586 (Admin)
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