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

The Convention rights guaranteed by the European Convention on Human Rights do not apply to an overseas territory falling within article 56 unless the United Kingdom has made the required declaration. An international advisory opinion and General Assembly resolution do not displace that requirement unless their legal effect changes responsibility for the territory.

In rationality review, scrutiny varies with the gravity, legal context and factual context of the decision. The importance of an interest does not create a rigid standard called anxious scrutiny. Courts may accord substantial latitude on national security, foreign relations and public expenditure, while retaining their constitutional duty to determine legality. A factual mistake justifies intervention only if established, objectively verifiable, not caused by the claimant and material to the reasoning.

The appellants challenged the Government’s decision not to support resettlement of Chagossians in the Chagos Islands, while providing an approximately £40 million support package. The Divisional Court dismissed their judicial review claims in [2019] EWHC 221 (Admin); [2019] 1 WLR 4105.

On appeal, they argued that an International Court of Justice advisory opinion and a United Nations General Assembly resolution had changed the territorial application of the European Convention on Human Rights. They also contended that anxious scrutiny was required and that the decision was irrational because the right of return was not considered separately and Ministers received materially incorrect information.

The central issues were the Convention’s application to the islands, the appropriate intensity of rationality review, and whether the decision-making process contained material omissions or mistakes of fact.

1. Appeal dismissed. Article 56 of the European Convention on Human Rights governed the Convention’s extension to the British Indian Ocean Territory. The United Kingdom had made no relevant declaration. The International Court of Justice’s advisory opinion and the General Assembly resolution addressed completion of Mauritius’s decolonisation prospectively. They neither established an individual right to resettlement nor removed the United Kingdom’s responsibility for the territory’s foreign relations pending completion of that process. Article 1 therefore did not provide an alternative basis for applying article 8 or article 1 of the First Protocol.
2. Customary international law may shape the common law where that is compatible with domestic constitutional principles, legislation and adaptable common law rules. Any proposed common law right of resettlement encountered a statutory obstacle in section 9 of the British Indian Ocean Territory (Constitution) Order 2004, whose validity had been upheld in Bancoult (No 2).
3. The challenge was one of rationality, not proportionality. Formal anxious scrutiny was inapplicable because there was no extant interference with human rights. Nevertheless, the intensity of rationality review depends on the gravity and context of the decision. Important interests may demand close examination, while national security, foreign relations and allocation of public resources may justify substantial respect for the executive’s evaluative assessment. That respect does not immunise a decision from review for irrationality.
4. Anxious scrutiny principally describes the judicial process. It does not impose a universal heightened procedure on every administrative decision-maker. The importance and consequences of a decision may nevertheless require correspondingly careful consideration. Here the decision had received conspicuous consideration at the highest levels of Government.
5. The Secretary of State had no legal duty to consider revocation of the 2004 Orders as a free-standing question. A possible right of return without residence had in fact been presented, and unsupported return would still have engaged governmental responsibilities because the land was Crown land and the islands lacked the necessary community infrastructure.
6. A decision may be quashed for factual mistake only where the mistake concerns an existing, established and objectively verifiable fact, was not caused by the claimant, and materially affected the reasoning. The Divisional Court was entitled to find no material misdescription concerning a runway or the support package. Its evaluative factual findings disclosed no absence of evidential basis, misunderstanding or failure to consider relevant evidence.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the Divisional Court’s rejection of the Convention, anxious-scrutiny and rationality grounds: [2020] EWCA Civ 1010.
2. High Court, Divisional Court: Singh LJ and Carr J dismissed the judicial review claims challenging the decision against supported resettlement: [2019] EWHC 221 (Admin); [2019] 1 WLR 4105.