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

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.

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.

1. Disposition. The Divisional Court dismissed both claims.
2. 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.
3. 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.
4. 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.
5. 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.