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

Factual and Procedural Background

This opinion concerns judicial review claims brought by two Claimants, both native Chagossians, challenging decisions made by the Defendant, the principal Secretary of State responsible for British Overseas Territories including the British Indian Ocean Territory ("BIOT"). The claims arise from the historical forced exile of the Chagossian population from the Chagos Archipelago between 1966 and 1972 and the subsequent denial of their right of abode in the BIOT under the 2004 constitutional and immigration Orders.

Following a Government review announced in December 2012, an independent feasibility study by KPMG was commissioned and published in 2015, concluding that resettlement was feasible under certain conditions. A public consultation exercise followed, culminating in a written ministerial statement in November 2016 in which the Government decided against resettlement on grounds of feasibility, defence and security interests, and cost, but offered a support package for Chagossians living outside the BIOT.

The Claimants challenge the lawfulness of the Resettlement Decision, the Support Package Decision (Ms Hoareau only), and the implicit decision not to remove the constitutional bar on the right of abode. The case involved extensive procedural history, confidential material, and multiple interlocutory hearings leading to a full hearing.

Legal Issues Presented

1. Whether the Defendant unlawfully failed to reconsider or separately consider the constitutional bar on the right of abode imposed by the 2004 Orders ("Right of Abode Decision").
2. Whether the Defendant acted incompatibly with the Claimants' rights under the Human Rights Act 1998 and the European Convention on Human Rights in making the Resettlement Decision.
3. Whether the Defendant failed to comply with the public sector equality duty under section 149 of the Equality Act 2010.
4. Whether the Resettlement Decision was irrational and flawed by errors of fact and misrepresentations, particularly regarding resettlement on the Outer Islands.
5. Whether the Defendant failed properly to consider or consult on the 2015 public consultation responses and the US Government's changed position on Outer Islands resettlement.
6. (Ms Hoareau only) Whether the Support Package Decision was irrational, including alleged misrepresentations and breach of legitimate expectation of consultation.

Arguments of the Parties

Claimants' Arguments

• The Defendant unlawfully failed to reconsider the constitutional bar on the right of abode independently of the resettlement feasibility assessment.
• The Resettlement Decision was irrational, breached Articles 8 and 1 of Protocol 1 of the Convention, and failed to comply with the public sector equality duty.
• The decision was based on misleading information, including flawed cost estimates and misrepresentations about the feasibility of Outer Islands resettlement.
• The consultation process was flawed, including misrepresentation of the consultation responses and failure to re-consult after the US Government altered its position.
• The Support Package Decision was unlawful due to misleading presentation of the funding figure and failure to consult on the needs assessment, breaching legitimate expectations.

Defendant's Arguments

• The decisions were taken at the highest governmental level after a thorough and open policy review, including independent studies and consultations.
• The KPMG Report confirmed resettlement was feasible only with substantial caveats and costs; the Government rationally weighed competing considerations including defence, environmental, and financial factors.
• The constitutional bar was rationally considered as part of the broader resettlement decision; no obligation existed to consider it separately or in advance.
• The Human Rights Act and Convention do not apply to BIOT as no Article 56 declaration extends their scope; accordingly, no rights were infringed.
• The public sector equality duty applied and was complied with; the Defendant had due regard to the Chagossians as an ethnic group throughout the process.
• The alleged factual errors and misrepresentations about Outer Islands resettlement were either not material or were fair evaluative judgments within the Government’s margin of discretion.
• The consultation was lawfully conducted, fairly presented, and no re-consultation was required following the US Government’s changed position.
• The Support Package Decision was a voluntary, discretionary exercise; Ministers were not misled and consultation was adequate in the circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed review of the extensive factual and procedural history, the policy review process, and the legal arguments advanced. It emphasized that the judicial review standard applicable was irrationality rather than proportionality, especially given the high policy content, sensitive defence and international relations considerations, and the involvement of the highest levels of Government, including the Prime Minister.

On the right of abode issue, the Court held there was no legal obligation for the Defendant to reconsider the 2004 constitutional bar separately or in advance of the resettlement decision. The Defendant's approach treating the two as interlinked was rational and consistent with prior authoritative decisions.

Regarding the Human Rights Act challenge, the Court reaffirmed that the Convention and HRA do not apply to the BIOT due to no declaration under Article 56 extending their application. The Claimants could not be regarded as victims under the Convention in this context.

On the public sector equality duty, the Court concluded that the Defendant had due regard to the Chagossians as an ethnic group throughout the decision-making process. The decision-making papers and ministerial discussions demonstrated awareness and consideration of equality obligations.

The Court rejected the Claimants' broad irrationality challenge to the Resettlement Decision, finding the Government's reliance on the KPMG Report and other evidence, including cost, defence, environmental, and social considerations, was rational and within the margin of discretion. Specific allegations of factual errors or misrepresentations concerning the Outer Islands were found either to be fair evaluative judgments or not material to the decision.

The Court found no failure to take into account the risks to delivery of the support package in Mauritius; these risks were acknowledged and evaluated by the Government.

On the consultation challenge, the Court held that the Government conscientiously considered the 2015 Consultation responses and fairly presented them to Ministers. The use of figures such as 25% support under realistic scenarios and 67% in principle support was justified by the need to interpret ambiguous responses. The Court also found no obligation to re-consult following the US Government's softened stance on Outer Islands resettlement as the consultation had already included that option.

Regarding the Support Package Decision, the Court found that Ministers were not misled about the indicative 40 million figure, which was provisional and subject to further assessment. The support package was a voluntary discretionary scheme, and consultation and needs assessments were adequate. Allegations of breach of legitimate expectation of consultation were rejected given prior consultation and the staged approach.

Overall, the Court emphasized the limited scope for judicial intervention in high-level policy decisions involving complex political, defence, and international relations considerations, and underscored that judicial review is not an appeal on merits but a check on legality.

Holding and Implications

The Court DISMISSED the claims brought by the Claimants challenging the Resettlement Decision, the Support Package Decision (Ms Hoareau only), and the implicit decision not to remove the constitutional bar on right of abode.

The direct effect is that the Government's decisions stand, maintaining the prohibition on Chagossians' right of abode in the BIOT and the non-support for resettlement, while providing the support package for Chagossians living outside the territory. No new legal precedent was established; the decision reaffirmed established principles regarding judicial review standards, the inapplicability of the Human Rights Act to the BIOT, and the scope of the public sector equality duty in this context.