R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs

The Divisional Court dismissed the claimants' challenges to the Secretary of State's decision not to support resettlement of the Chagossians in the British Indian Ocean Territory and to adopt a support package. The court applied the ordinary public law test of irrationality (not proportionality) and emphasised the wide margin of judgment afforded to ministers on issues of defence, international relations, macro-economic policy and resource allocation.

On the Human Rights Act point the court held that Convention rights and the HRA do not apply to BIOT in the absence of an Article 56 declaration; accordingly section 6 HRA had no bearing on the 2016 decision. The court also rejected the claim that ministers were obliged, as a matter of law, to revisit the 2004 constitutional and immigration orders which removed any right of abode, holding that reconsideration of the statutory ban was legitimately part of the overall resettlement feasibility review.

The court concluded that the public sector equality duty in section 149 Equality Act 2010 was engaged but that the decision‑making process showed due regard to equality considerations. Allegations of irrationality, material factual error or misleading briefing, flawed consultation and unlawful handling of the support package were examined and rejected on the evidence: the KPMG feasibility study, subsequent analyses and the NSC process provided a rational basis for the decisions.

Background and parties. These conjoined judicial review claims arise from the Government's 2012–2016 policy review on whether to permit and support resettlement of the Chagossians to the British Indian Ocean Territory (BIOT), including consideration of the independent KPMG feasibility report and a public consultation in 2015. The claimants were native Chagossians (Ms Solange Hoareau and Mr Louis Bancoult) who challenged: (i) the Resettlement Decision (decision not to support resettlement); (ii) the Support Package Decision (an approximately £40 million package for Chagossians outside BIOT) (Ms Hoareau only); and (iii) the (implicit) decision not to remove the constitutional and immigration bar on right of abode (the 2004 Orders).

Procedural posture. The claims were heard in the Divisional Court following extensive interlocutory proceedings and a Confidentiality Ring for sensitive materials. The hearing considered open and closed material, expert and factual witness statements, and multiple policy documents.

Issues for decision. The court identified six principal issues: (1) whether the Secretary of State unlawfully failed to reconsider the 2004 Orders (right of abode); (2) whether the decisions breached the Human Rights Act 1998 and Convention rights; (3) whether the public sector equality duty (Equality Act 2010 s.149) was breached; (4) whether the Resettlement Decision was irrational, including by reliance on material factual errors or misrepresentations (in particular regarding Outer Islands resettlement); (5) whether the consultation exercise was flawed; and (6) whether the Support Package Decision was irrational or procedurally unfair (Ms Hoareau only).

Court's reasoning and conclusions. The court held (i) the HRA/Convention do not apply to BIOT in the absence of an Article 56 declaration and so section 6 HRA did not assist the claimants; (ii) there was no legal obligation to consider abrogation of the 2004 Orders separately and in advance of the resettlement feasibility assessment and the Secretary of State's approach was not irrational; (iii) section 149 Equality Act 2010 applied in substance, the Secretary of State proceeded on the basis that Chagossians constituted an ethnic group for the purposes of the litigation, and the decision-making materials and NSC process showed due regard to equality considerations; (iv) on irrationality the court gave weight to the Government's margin of appreciation on issues involving defence, international relations, environment and public expenditure and concluded the Resettlement Decision fell within the range of rational responses given the KPMG report, US Government position and environmental, social and cost considerations; (v) the consultation process was lawfully conducted and the presentation of results to ministers was not unfair or misleading in any material respect; and (vi) the support package decision was a voluntary, provisional budgeting decision with further work to follow and was not irrationally taken nor unlawfully reached without consultation.

Remedy and wider remarks. The court dismissed the claims and refused relief. It reiterated the limited role of judicial review: to remedy illegality, not to re‑weigh or substitute judicial views for high‑level policy judgments, especially on matters of national security and international relations.

The claims are dismissed. The Divisional Court concluded that (i) the Human Rights Act and Convention rights do not apply to BIOT in the absence of an Article 56 declaration; (ii) ministers were not obliged to reconsider the 2004 Orders separately from the resettlement feasibility exercise and their approach was not irrational; (iii) the public sector equality duty had been engaged and satisfied on the evidence; (iv) the Resettlement Decision and the Support Package Decision were within the range of rational decisions open to ministers given KPMG's findings, defence and international relations considerations, environmental and social risks and cost; and (v) the consultation and presentation of responses were not unlawfully misleading.